Lands Underwater in the Hudson River Valley and New York State

Did you know that New York State has in the past, and continues to, sell, give, and transfer portions of navigable waters to interested upland owners. What does that mean?

Ever wonder who owns the lands under the Hudson River? In river communities where water front property is valuable for its view, the land can also be valuable for land you cannot see– the land under water.

“Land under water”‘ is land submerged by water, and includes that land below the high water mark in navicable waters (rivers), tidal water (estuaries), lakes and ponds, and, at times, can appear to be dry land (perhaps it was previously filled naturally by development). The owner of property on “dry land” is referred to as the “Upland Owner,” and is often benefited by actually owning the rights to the land under water. Generally speaking, New York State owns the land under all navigable lakes, streams, and rivers.

The State, however, does sell, give, transfer and alienate certain parcels of the mud under the Hudson River, Long Island Sound, and other larger fresh water lakes, ponds, etc. Often the ownership of this land underwater helps the upland owner install wharfs, docks, piers, and to fill the land where other owners (with no rights to the land under water) could not so improve their land.

The Public Lands Law contains a number of factors affecting who may apply for and receive interests in such lands. A distinction is made between an application for a beneficial grant for private use and a commerce grant for the public benefit.

Generally, grants for “purpose of commerce” are of limited character and subject to legislative control. The grant for commerce purposes specifies the nature of the use and is conditioned on the completion of the proposed improvements. Grants for purposes of commerce are strictly construed meaning that the owner of such right owns nothing more than what is specified in the grant as necessary to the purposes of it. Because it is limited, the State has the right to regulate the use of the granted property in the interest of the public and for the protection of commerce and navigation.

The type which grants “beneficial enjoyment” means that the owner has unencumbered fee ownership, and the land granted was not otherwise necessary for purposes of commerce. Once a grantee acquires title to the land under the water (e.g., Hudson River) soil, New York State cannot take away the grant, and the owner may exclude any other person from the land granted.

Obviously, the grant for “beneficial enjoyment” is broader and therefore more valuable to the upland owner.

The bottom line– if you are considering the purchase of a waterfront home in Long Island, the Hudson River Valley, and particularly the river towns of Sparkill, Sneden’s Landing, Piermont, Nyack, Stony Point, Haverstraw, Irvington, Tarrytown, Newburgh, Poughkeepsie, Saugerties, Hudson or anywhere else in New York State, including along any of the Finger Lakes; you should consult with your title company and real estate lawyer to understand whether and to what extent the property may come with underwater land.

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