Daily Development for
Thursday, December 18, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

Here are two little "special issue" water rights cases. Perhaps you are wondering "How do they do that?" How do they solve these little problems involving rights of use associated with water features? After reading these two cases, you'll be that much further educated, as the editor became as well.

WATERS AND WATER RIGHTS; RIPARIAN RIGHTS; NAVIGABILITY: Body of water whose navigability (i.e., whether water is used or is susceptible for use as highway for commerce) prior to expansion could not be proven, will not be considered publicly owned, and owner of land beneath water's surface therefore can regulate activities on surface.

Pennsylvania Power v. Supervisors of Lower Mt. Bethel Twp., 695 A.2d 882 (Pa.Commw. 1997).

In 1927, a power company, owners of property bisected by Wallenpaupack Creek, obtained permission to dam the creek to form a thirteen mile long lake for hydroelectric power generation. As a condition, of the permit the power company was required to permit public access to the lake. In this case, a company running a cruise ship operation on the lake obtained a state permit to sell alcoholic beverages with meals it served to passengers. The power company objected, and adopted a rule prohibiting the sale of alcoholic beverages on the "company's" lake. The parties apparently agreed that the question of whether the power company could prohibit the sale of alcoholic beverages depended upon the question of whether the company in fact owned the property beneath the lake. This, in turn, depended upon whether Wallenpaupack Creek ever was a "navigable waterway." If it was, then it just became a larger navigable waterway when the power company built its dam, and the land under this navigable waterway belongs to the State. If the Creek was never a natural navigable waterway, then the fact that it now can be navigated because of the construction of the dam does not render it "navigable" within the legal meaning of the term, and the underlying ground belongs to the power company.

The tour operators relied primarily on old legislation in which the Pennsylvania Legislature had listed Wallenpaupak Creek in a catalogue of navigable waterways. The court refused to rely upon this fact, because the result, in its view, would be that the state would have unconstitutionally "taken" lands of private owners without compensation in those instances in which the waterways listed were not in fact navigable. Therefore, the court determined here that the tour operators had the burden to show the navigability of the waterway in fact, and could not rely on the statute.

Ironically, the opinions in the case indicate that there is a substantial body of historical data that the Creek in fact was navigable in the Eighteenth and Nineteenth Centuries, but the tour boat operators were unable to muster that evidence in the trial court. Hence, the court here upholds the power company's ownership based upon the record. One assumes that this record will not collaterally estop others from seeking a declaration, based upon newly uncovered evidence, that the lake in fact is "navigable."

WATERS AND WATER RIGHTS; LITTORAL RIGHTS; COVES: In dispute between adjoining landowners over their littoral rights, when shoreline is concave, courts employ "cove method" to resolve dispute and littoral boundary line will be established which gives each party rights over an area proportionate to its shoreline.

DelBuono v. Brown Boat Works, Inc., 696 A.2d 1271 (Conn.App. 1997), cert. denied, 243 Conn. 906 (Conn. Sept. 18, 1997).

The dispute involved ownership of submerged land that had been used to locate pilings for docks. The "cove method" involves drawing a line, called the "base line" or "chord" between points of land on either side of the concavity and then drawing a line perpendicular to the base line from the base line to the boundary between the parties' parcels at high water mark.

The court found unconvincing the dock owner's argument that since he had for 20 years used and developed the disputed area of water, the adjoining owner had acquiesced in a recognized boundary line. The court placed significance on evidence that showed that adjoining landowner had indeed, over the 20 year period, reminded his neighbor that neighbor's construction in the water was encroaching over boundary line. The court did not sympathize with encroaching landowner's claim that with judicially established boundary he would lose one-third of the docking facilities that he had been using in his business for over 20 years. The court explained that landowner developed docks, floats and pilings with total disregard of the likelihood that they might have to be removed.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.