Pond Access
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Teresa G
Nov 11, 2009, 11:34:02 AM11/11/09
to Shelton Conservation Commission
Question for Ed: When the shoreline of one side of a pond is owned by
one party but the pond is owned by another, does the first party have
the right to fish in the pond from their shoreline? I would think the
answer would be "yes" but I don't really know.
one party but the pond is owned by another, does the first party have
the right to fish in the pond from their shoreline? I would think the
answer would be "yes" but I don't really know.
McCreery, Edward P.
Nov 11, 2009, 11:37:47 AM11/11/09
to shel...@googlegroups.com
Ha - I will look it up after lunch. Many cases on that topic. Assuming
you are talking about the pond I am thinking about where we recently
acquired land, it may turn on whether the pond is natural...or man
made...and if the later....who owned the land under it before it was
dammed or dug out. Do you know the answer to that? I do not recall if
it was there or was created when that nearby project was built.
you are talking about the pond I am thinking about where we recently
acquired land, it may turn on whether the pond is natural...or man
made...and if the later....who owned the land under it before it was
dammed or dug out. Do you know the answer to that? I do not recall if
it was there or was created when that nearby project was built.
Teresa G
Nov 11, 2009, 12:05:05 PM11/11/09
to Shelton Conservation Commission
Wow, I had no idea it would be that complicated. I don't know whether
the pond is natural or not. I would bet that it is man made, but I
can't say for sure. City Hall is closed so I can't look up the
ownership records today.
Here are some pictures of the open space. I was out there yesterday
and put up some signs.
http://sheltontrails.blogspot.com/2009/11/chordas-pond-open-space.html
On Nov 11, 11:37 am, "McCreery, Edward P." <emccre...@pullcom.com>
wrote:
the pond is natural or not. I would bet that it is man made, but I
can't say for sure. City Hall is closed so I can't look up the
ownership records today.
Here are some pictures of the open space. I was out there yesterday
and put up some signs.
http://sheltontrails.blogspot.com/2009/11/chordas-pond-open-space.html
On Nov 11, 11:37 am, "McCreery, Edward P." <emccre...@pullcom.com>
wrote:
Tom Harbinson - Personal
Nov 11, 2009, 1:30:15 PM11/11/09
to shel...@googlegroups.com
I can't resist: if records were "in the cloud", City Hall would never be "closed" from accessing records.
Bill Dyer
Nov 11, 2009, 2:01:46 PM11/11/09
to shel...@googlegroups.com
Dean and Sheri both talk about the fishing contest and winter bonfire that were there before L'Hermitage came on the scene and stopped them.
McCreery, Edward P.
Nov 11, 2009, 2:37:51 PM11/11/09
to shel...@googlegroups.com
To Tom's comment - several towns in Ct. - like Westport - have
many of their records on-line and you can view them over the internet.
Will Shelton ever get there?
From: shel...@googlegroups.com [mailto:shel...@googlegroups.com] On Behalf Of Bill Dyer
Sent: Wednesday, November 11, 2009 2:02 PM
To: shel...@googlegroups.com
Subject: SheltonCC Re: Pond Access
Bill Dyer
Nov 11, 2009, 2:47:27 PM11/11/09
to shel...@googlegroups.com
Will Shelton ever get there? I am sure the answer is yes, but when? In relativistic terms, will that occur before or after the completion of the Rec Path completion? Before or after Constitution Blvd is completed to Bridgeport Ave.? Before 2012 or after the Apocalypse?
Teresa G
Nov 11, 2009, 3:07:01 PM11/11/09
to Shelton Conservation Commission
<<Will Shelton ever get there? I am sure the answer is yes, but when?
In
relativistic terms, will that occur before or after the completion of
the
Rec Path completion? Before or after Constitution Blvd is completed to
Bridgeport Ave.? Before 2012 or after the Apocalypse? >>
Where's the "funny" button when you need it.
In
relativistic terms, will that occur before or after the completion of
the
Rec Path completion? Before or after Constitution Blvd is completed to
Bridgeport Ave.? Before 2012 or after the Apocalypse? >>
Shelton DOES have a few records online: The open space info that I've
been able to upload so far :-)
On Nov 11, 2:47 pm, Bill Dyer <bill.dye...@gmail.com> wrote:
> Will Shelton ever get there? I am sure the answer is yes, but when? In
> relativistic terms, will that occur before or after the completion of the
> Rec Path completion? Before or after Constitution Blvd is completed to
> Bridgeport Ave.? Before 2012 or after the Apocalypse?
>
> On Wed, Nov 11, 2009 at 2:37 PM, McCreery, Edward P.
>
> > To Tom's comment - several towns in Ct. - like Westport - have many of
> > their records on-line and you can view them over the internet. Will Shelton
> > ever get there?
>
> > ------------------------------
> > To Tom's comment - several towns in Ct. - like Westport - have many of
> > their records on-line and you can view them over the internet. Will Shelton
> > ever get there?
>
> > *From:* shel...@googlegroups.com [mailto:shel...@googlegroups.com] *On
> > Behalf Of *Bill Dyer
> > *Sent:* Wednesday, November 11, 2009 2:02 PM
> > *To:* shel...@googlegroups.com
> > *Subject:* SheltonCC Re: Pond Access
>
> > Dean and Sheri both talk about the fishing contest and winter bonfire
> > that were there before L'Hermitage came on the scene and stopped them.
>
> > On Wed, Nov 11, 2009 at 1:30 PM, Tom Harbinson - Personal <
> > thomas.harbin...@gmail.com> wrote:
>
> >> I can't resist: if records were "in the cloud", City Hall would never be
> >> "closed" from accessing records.
>
> > Dean and Sheri both talk about the fishing contest and winter bonfire
> > that were there before L'Hermitage came on the scene and stopped them.
>
> > On Wed, Nov 11, 2009 at 1:30 PM, Tom Harbinson - Personal <
> > thomas.harbin...@gmail.com> wrote:
>
> >> I can't resist: if records were "in the cloud", City Hall would never be
> >> "closed" from accessing records.
>
McCreery, Edward P.
Nov 11, 2009, 3:53:33 PM11/11/09
to shel...@googlegroups.com
Here is your answer....but keep in mind...this is not a legal opinion. I leave that to the City Attorney. It looks like in 2004 the Appellate court tried to rule that by merely owning land abutting the pond, you have the right to use it to fish and etc. and then the Ct. Supreme Court agreed to hear an appeal from that decision and slapped the Appellate Court down and said NOT SO FAST.....in Ct. we abide by the common law tradition that if you own the bottom of the pond...you control who can use it and for what. So bottom line is you have to look back at the deeds and see where the property descriptions end or what they use at boundaries. If owners on both sides of the pond have legal descriptions that say to the edge of the pond, the city might have a claim. If not - and the other abutter's deed includes the bed of the pond, then IMHO, the city has no right to use the pond....UNLESS...the owners before us used the pond for >15 years for recreational uses w/o the pond owner's permission and thus acquired that right by adverse possession. Here is an extract from the court decision:
.........("[i]t is well settled that where land is bounded, in a deed, in general terms, on or by a river or stream not navigable, the grant extends to the center of it"); see 78 Am.Jur.2d 391-92, Waters § 34 (2002) ("In the case of a lake suitable for domestic or recreational uses, a littoral owner has a right to make such use of the lake over its entire surface, in common with all other abutting owners .... However, if in granting land bordering on a small lake capable of private ownership the lines are run through the lake, no littoral right to the use of the whole lake is acquired by any grantee, but barriers may be placed along the division lines which will exclude the owners of all other portions of the lake bed from the use, for recreational purposes, of the water within them."); R. Reis, Connecticut Water Law: Judicial Allocation of Water Resources (1967), pp. 89-90 ("where title to the bed is based upon littoral ownership, rather than bed ownership in severalty, or of almost all the land around a lake, the right to the use of the surface of the lake for all necessary and proper purposes is common to all littoral proprietors"); ......Historically, property rights in lakes were significantly different from property rights in streams, and each had a different name. 1 R. Beck, Waters and Water Rights (2001 Replacement Volume) § 6.02(b), p. 6-99. Rights in streams were "riparian." while rights in lakes were "littoral."..........
We acknowledge that there is a minority civil law rule, which provides that owners of land beneath a body of water have the right to reasonable use and enjoyment of the entire body and that this ownership does not include the right to exclude abutting owners. We also recognize, however, that the few states to have followed this rule have an extensive number of natural lakes, and therefore understandably have **635 adopted a policy favoring maximum recreational use. See Beacham v. Lake Zurich Property Owners Assn., 123 Ill.2d 227, 231-32, 122 Ill.Dec. 14, 526 N.E.2d 154 (1988) (adopting civil law rule based on impractical consequences of establishing boundary lines underwater and desire to promote recreational use and enjoyment of lakes); Johnson v. Seifert, 257 Minn. 159, 167-69, 100 N.W.2d 689 (1960) (adopting civil law rule based in part on Minnesota's extensive waters of recreational and commercial value); R. Johnson, note, 28 Ore. L.Rev. 267, 281 (1949) ( "[t]he minority view stems from jurisdictions with great numbers of inland waterways where hunting and fishing have become major industries"); see also Beach v. Hayner, 207 Mich. 93, 95-98, 173 N.W. 487 (1919); Elder v. Delcour, 364 Mo. 835, 847-48, 269 S.W.2d 17 (1954); Snively v. Jaber, 48 Wash.2d 815, 821-22, 296 P.2d 1015 (1956).FN10 Although we similarly appreciate the value of recreational and commercial water use, "there is nothing in [Connecticut's] topography or location that requires a departure from the rules of the common law. Unlike some of our sister States, we have no large inland lakes, *232 which are, in fact, inland seas, upon which an extensive commerce is carried on, or which are the boundaries with a foreign nation." (Internal quotation marks omitted.) Hardin v. Jordan, 140 U.S. 371, 395, 11 S.Ct. 808, 35 L.Ed. 428 (1891), quoting Cobb v. Davenport, 32 N.J.L. 369, 380 (1867). Accordingly, we conclude that the common-law rule should be applied in the present case.FN11........
We note that our decision comports with Connecticut's strong public policy favoring the protection of private property rights. See Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (considering rights of private pond owner where federal government sought to enforce public recreational rights in pond, court held that "the 'right to exclude,' so universally held to be a fundamental element of the property right, falls within [the] category of interests that the Government cannot take without compensation"). In the present case, the plaintiffs have relied on the belief that they are the sole owners of the pond and on the exclusive rights that usually accompany private ownership. When the boundary lines are clearly marked, as in the present case, we see no reason to deviate from the common-law rule when such a departure would "sweep away the reliance by property owners on the concept that ownership of all the subaqueous land conveys exclusive riparian rights." Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn.App. at 592, 848 A.2d 474 ( Schaller, J., dissenting); see also Anderson v. Bell, supra, 433 So.2d at 1205-1206 (adopting common-law rule and discussing various economic policy concerns as well as difficulty of limiting civil law rule).
With these principles in mind, we turn to the present case. It is undisputed that the plaintiffs own 99 percent of the pond bed in severalty. See footnote 4 of this opinion. In accordance with the common-law principles previously outlined, therefore, the plaintiffs have exclusive control over this portion of the pond bed and the waters above it. This right permits the plaintiffs to exclude others, including the Buccinos, as abutting owners of the lake bed, by erecting a fence or other barrier to prevent others from utilizing the water which overlies the plaintiffs' property. Accordingly, the Appellate Court improperly determined that the Buccinos had a riparian right to use the entire pond by **636 virtue of their status as abutting landowners.
Ace Equipment Sales, Inc. v. Buccino
273 Conn. 217, 869 A.2d 626
Conn.,2005.
.........("[i]t is well settled that where land is bounded, in a deed, in general terms, on or by a river or stream not navigable, the grant extends to the center of it"); see 78 Am.Jur.2d 391-92, Waters § 34 (2002) ("In the case of a lake suitable for domestic or recreational uses, a littoral owner has a right to make such use of the lake over its entire surface, in common with all other abutting owners .... However, if in granting land bordering on a small lake capable of private ownership the lines are run through the lake, no littoral right to the use of the whole lake is acquired by any grantee, but barriers may be placed along the division lines which will exclude the owners of all other portions of the lake bed from the use, for recreational purposes, of the water within them."); R. Reis, Connecticut Water Law: Judicial Allocation of Water Resources (1967), pp. 89-90 ("where title to the bed is based upon littoral ownership, rather than bed ownership in severalty, or of almost all the land around a lake, the right to the use of the surface of the lake for all necessary and proper purposes is common to all littoral proprietors"); ......Historically, property rights in lakes were significantly different from property rights in streams, and each had a different name. 1 R. Beck, Waters and Water Rights (2001 Replacement Volume) § 6.02(b), p. 6-99. Rights in streams were "riparian." while rights in lakes were "littoral."..........
We acknowledge that there is a minority civil law rule, which provides that owners of land beneath a body of water have the right to reasonable use and enjoyment of the entire body and that this ownership does not include the right to exclude abutting owners. We also recognize, however, that the few states to have followed this rule have an extensive number of natural lakes, and therefore understandably have **635 adopted a policy favoring maximum recreational use. See Beacham v. Lake Zurich Property Owners Assn., 123 Ill.2d 227, 231-32, 122 Ill.Dec. 14, 526 N.E.2d 154 (1988) (adopting civil law rule based on impractical consequences of establishing boundary lines underwater and desire to promote recreational use and enjoyment of lakes); Johnson v. Seifert, 257 Minn. 159, 167-69, 100 N.W.2d 689 (1960) (adopting civil law rule based in part on Minnesota's extensive waters of recreational and commercial value); R. Johnson, note, 28 Ore. L.Rev. 267, 281 (1949) ( "[t]he minority view stems from jurisdictions with great numbers of inland waterways where hunting and fishing have become major industries"); see also Beach v. Hayner, 207 Mich. 93, 95-98, 173 N.W. 487 (1919); Elder v. Delcour, 364 Mo. 835, 847-48, 269 S.W.2d 17 (1954); Snively v. Jaber, 48 Wash.2d 815, 821-22, 296 P.2d 1015 (1956).FN10 Although we similarly appreciate the value of recreational and commercial water use, "there is nothing in [Connecticut's] topography or location that requires a departure from the rules of the common law. Unlike some of our sister States, we have no large inland lakes, *232 which are, in fact, inland seas, upon which an extensive commerce is carried on, or which are the boundaries with a foreign nation." (Internal quotation marks omitted.) Hardin v. Jordan, 140 U.S. 371, 395, 11 S.Ct. 808, 35 L.Ed. 428 (1891), quoting Cobb v. Davenport, 32 N.J.L. 369, 380 (1867). Accordingly, we conclude that the common-law rule should be applied in the present case.FN11........
We note that our decision comports with Connecticut's strong public policy favoring the protection of private property rights. See Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (considering rights of private pond owner where federal government sought to enforce public recreational rights in pond, court held that "the 'right to exclude,' so universally held to be a fundamental element of the property right, falls within [the] category of interests that the Government cannot take without compensation"). In the present case, the plaintiffs have relied on the belief that they are the sole owners of the pond and on the exclusive rights that usually accompany private ownership. When the boundary lines are clearly marked, as in the present case, we see no reason to deviate from the common-law rule when such a departure would "sweep away the reliance by property owners on the concept that ownership of all the subaqueous land conveys exclusive riparian rights." Ace Equipment Sales, Inc. v. Buccino, supra, 82 Conn.App. at 592, 848 A.2d 474 ( Schaller, J., dissenting); see also Anderson v. Bell, supra, 433 So.2d at 1205-1206 (adopting common-law rule and discussing various economic policy concerns as well as difficulty of limiting civil law rule).
With these principles in mind, we turn to the present case. It is undisputed that the plaintiffs own 99 percent of the pond bed in severalty. See footnote 4 of this opinion. In accordance with the common-law principles previously outlined, therefore, the plaintiffs have exclusive control over this portion of the pond bed and the waters above it. This right permits the plaintiffs to exclude others, including the Buccinos, as abutting owners of the lake bed, by erecting a fence or other barrier to prevent others from utilizing the water which overlies the plaintiffs' property. Accordingly, the Appellate Court improperly determined that the Buccinos had a riparian right to use the entire pond by **636 virtue of their status as abutting landowners.
Ace Equipment Sales, Inc. v. Buccino
273 Conn. 217, 869 A.2d 626
Conn.,2005.
Teresa G
Nov 11, 2009, 4:32:44 PM11/11/09
to Shelton Conservation Commission
<(adopting civil law rule based in part on Minnesota's extensive
waters of recreational and commercial value)>
Interesting...I noted the reference to MN law -- being from MN that's
waters of recreational and commercial value)>
probably why I felt there were probably fishing rights.
On Nov 11, 3:53 pm, "McCreery, Edward P." <emccre...@pullcom.com>
>
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