(This is the first part of a three-part series of columns on water rights.)
Usable fresh water is one of our most important and limited natural resources. The United States Environmental Protection Agency estimates that less than 1% of the Earth’s water is available for human use. Despite the limited amount of usable water, human water consumption continues to increase. The World Water Council has estimated that during the 20th century the rate of growth in human water consumption was twice the rate of population growth.
Locally, we are blessed with significant fresh water resources throughout the Finger Lakes. Canandaigua Lake provides fresh drinking water for roughly 70,000 people and is a major player in the $1.5 billion per year Finger Lakes tourism industry. Canandaigua Lake is a shared treasure under increasing strain as more and more people rely on it for drinking water, recreation, and tourism dollars. The recent blue-green algae blooms are a strong reminder of our need to protect the lake.
New York has a variety of state and local laws that impact the Finger Lakes. They begin with the fundamental principle that the navigable surface waters of New York State are held in the public trust. As a result, the public has the right to navigate Canandaigua Lake and use it for fishing, boating, swimming, and other recreational purposes. Since the waters of Canandaigua Lake are owned by New York State, they fall within the regulatory authority of the New York State Department of Environmental Conservation.
While the right of public use may seem obvious to many, it was not always so. In a famous 1931 case, two descendants of Gideon Granger sued the City of Canandaigua claiming title to the bed of Canandaigua Lake. The Granger descendants claimed title under an 1817 deed from Oliver Phelps to Gideon Granger. In 1788 Oliver Phelps and his business partner, Nathaniel Gorham, purchased more than 2 million acres of land from Massachusetts in what is now western New York. That purchase included the entirety of Canandaigua Lake.
The court case ultimately went all the way to New York State’s highest court, the Court of Appeals. The Court held that “title to the bed of Canandaigua lake is in the State of New York in trust for all the people thereof.” The Court reasoned that, as part of New York State’s sovereign powers, it has “title to all lands under navigable waters” and Canandaigua Lake is “navigable” as demonstrated by the lake’s rich history of commercial steamboat traffic.
While the decision in Granger v. Canandaigua, 257 N.Y. 126 (1931), ensured the public’s ownership of the lake, the public’s right to access the lake is limited by the property rights of private landowners. The Canandaigua Lake Watershed Association has calculated that 97% of the lake’s shoreline is privately owned, leaving only 3% for public access. With only a handful of public boat launches and swimming areas around the lake, public access is very limited.
Property owners along Canandaigua Lake enjoy additional rights to the lake called “riparian rights” (in the past, “littoral rights” applied to lakes and ponds and “riparian rights” applied to rivers and streams, but recent judicial decisions have abandoned the distinction in favor of using the term “riparian rights” for all property rights along a navigable body of water). These rights allow them to use the water and lake bed adjacent to their property to gain access to the lake. Property owners don’t own the adjacent water or lake bed, but merely have the right to use their private property to gain access to the lake. The use of the adjacent water and lake bed must be reasonable, but generally includes the right to construct a practical structure to gain access to the lake, such as a dock.
As water rights lawyers, we sometimes receive questions about a lakeshore property owner’s right to exclude others from using the water immediately adjacent to their property. The property owner’s right of exclusive use ends at the high mean water mark. Everything waterside of the high mean water mark is owned by the public and can be used by the public. For that reason, the Canandaigua Lake Uniform Docking and Mooring Law prohibits lakeshore property owners from building any structure waterside of the high mean water mark that is not related to docking and mooring (we will discuss the Canandaigua Lake Uniform Docking and Mooring Law in more detail in Part 2 of our series on water rights). While social etiquette would dictate that you should not fish in a boat on the lake adjacent to someone’s private dock, technically you have the right to do so.
We are all very fortunate to live in the Finger Lakes, and have access to the clean water and unique recreational activities this region provides. It is our responsibility to ensure that we are good stewards of the lakes so they can enrich and bless the lives of generations to come.
Terence Robinson is a Partner at Boylan Code LLP, a full service law firm with more than fifty legal professionals focused on serving you, the client. Offices are conveniently located in Canandaigua, Newark, and Rochester. This article is not legal advice.
To read the published article in the Daily Messenger, click here.