New York State hits bottom

[Kilgour Farms]

I found this while cleaning the library.
River Reporter 1997 prior to Salmon River decision which upholds NYS patents.

New York State hits bottom
Narrowsburg - New York State has ceded any ownership to the Delaware River bottom within the lands included in the Hardenburg Patent of 1708.
This may sound like “So What?” to you unless you want to take your fishing pole and go wading along that portion of the river between Station Rock in Cochecton and Hancock. The courts are still trying to figure out if that kind of thing is still legal.
In announcing the recent decision via press release, the Upper Delaware Council (UDC) stressed that the States Office of General Services says its decision does not diminish “the publics right to navigate, fish and enjoy the Delaware River.”
However, UDC executive Director Bill Douglas said law suites in New York involving the Salmon River and in Pennsylvania involving the Lehigh River are testing the property rights vs. recreation uses.
Douglas said that the navigation rights - the right to travel a stream in a boat -- have been expanded over the years to include recreation. ”How far does that go? Officially, we’re not sure?” Douglas concluded.
The ruling does not apply to lands drawn for other royal patents along the Delaware River.

[Bob K.]

Just an observation, but since the river is navigable and this section is part of the border between 2 states, the Federal Government probably has an interest in this matter also.
Bob

[Kilgour Farms]

According to the agreement with the NPS, the only authority the Park Service has deals with the water surface. This in no way affects states rights on the bottom of the river.
PA owns the bottom on their side, New York the land owners own the bottom. Before the states settled the boundries in 1822 New York landowners under the Patent owned to the PA side of the river. After 1822 The state of PA declared the land state owned.

Extent of Public Rights in Navigable & Non-navigable Rivers
The public has different rights in New York, depending on whether the stream is non-tidal and navigable in fact or the stream is tidal and navigable in law. In non-tidal streams that are navigable in fact (the rivers of greatest interest to boaters), the streambeds are privately owned. With regard to these streams, New York follows the ancient common law rule that the public has the right to navigate up to the high water mark,[9] but may not fish in these streams.[10] Riparian owners still retain their full panoply of rights along rivers serving recreational use, subject only to the long recognized navigational servitude.[11] However, the right to navigate carries with it the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands.[12] However, any use of private riverbeds or banks that is not strictly incidental to the right to navigate gives rise to an action for trespass.[13]
The beds of tidal streams are owned by the state. The public has the right to use tidal streams for boating, fishing, and wading.

This does not affect ones ability to navigate the river. Info on the Hardenburgh Patent can be found in the Ulster County records office, Delaware County was part of Ulster County in the early 1800's.

[bordeaux]

After being accosted by someone on the Delaware -- I think his name was Pecker -- I contacted the DEC and State Park Service and they both said he was full of crap about his claim. They both said the H-patent does not apply to him for multiple reasons, including that his deed specifies that he owns two separate pieces of property (the land and the island) and that the fork of the river in between is NOT included. This argument is strengthened by looking at the tax map, which shows that the acreage comprising the river does not fall within his property. If it did, he would pay taxes on it (which he apparently does not).

The DEC and state park service also said that the H-patent indicates that you have to own both "sides" of the river - and in the case of the Delaware, "side" literally means the PA and New York sides. An island in a channel does not constitute a river's "side."

I am not a lawyer and so I am only offering what these two organizations told me. I do have a letter from the head of the DEC that I carry with me in case of any future problems, which says the burden would be on the land owner to prove his deed includes the land under the Delaware.

Regardless of the guy's claim, he could have been nice about approaching me. I would have listened to a rational person, left instantly and gone home to research it because I had never heard about the H-patent. I would have respected someone who did not come screaming out of the woods with all kinds of obscenities (in front of my wife) right from the start, unprovoked. He was extremely rude and abusive and if he ever does it again I will phone the police immediately and file charges, which is what the state park service told me to do.

[beaverkill]

This is from the New York DEC web site and should offer some insight:

"Q. May a person travel in a boat or canoe on a waterway which is posted?

A. Yes, but travel may not include fishing. A person in a vessel has a right of passage on a navigable waterway, even if the bed of the waterway is privately-owned and is posted. A waterway is navigable if it is capable, in its natural state and ordinary volume of water, of transporting, in a condition fit for market, of floating logs or manufactured or agricultural goods to market. A navigable waterway need not be navigable in both directions, nor need it be navigable 12 months of the year. Furthermore, a waterway's navigability is not destroyed by rapids or other temporary obstacles so long as the rest of the waterway is otherwise navigable. Where such obstacles exist, the right to public navigation authorizes a boater to get out of the vessel and walk alongside the boat to get around such obstacles, or to portage around such obstacles, even over private property above the mean high water mark, so long as the portage is by the most direct and least intrusive safe route possible. The right to navigation does not otherwise authorize the public to go on private land above the mean high water mark, even for access to or egress from a navigable waterway. A 1997 ruling of the New York State Court of Appeals indicates that the public right to navigation does not include the right to walk on the bed of a waterway to fish, or to anchor for the purpose of fishing where the bed of the waterway is privately-owned; or to fish while navigating through privately-owned waters."

[Kilgour Farms]

First off the name is Peckham. Second, I’m not the type of person to raise my voice at someone unless provoked. I have talked to and am friends with many fishermen and rarely have a problem.
The island is Frisbee Island and the channel is wholly within the boundaries of the State of New York.
The island is part of the original deed dating back to 1805 , which includes both sides of the river channel. Starting to sound like the East Branch? I doubt that the DEC would have a press release and then say it ain’t so. Maybe its that they didn’t see their own press release? That I could believe. I would like to see a copy of this letter written by the director. It would be interesting to see what they base their assumptions on?

[Joe D]

Referenced in Appendix IX of DEC Region 4 Fisheries Report (Sanford 1992)
CHAP. CXCV.

AN ACT declaring the Delaware River and its Branches, Public Highways.
Passed April 12, 1822.

I. BE it enacted by the People of the State of New-York, represented in Senate and Assembly, That all that part of the Delaware River from Carpenter's point, near the north boundary of the state of New-Jersey, to the northerly boundary of the town of Delhi, in the county of Delaware,
and also all that part of the east branch of the said river, from the forks where it forms a junction with the west branch in the town of Hancock, to the farm of Frederick Kittle, in the town of Middletown, in said county; and all that part of the Beaver Kill, (a stream tributary to the said east branch,) which is written the said county of Delaware, be and the same are hereby declared each to be a public highway. Provided, That nothing herein contained shall be constructed to prevent any person or persons from erecting, keeping, and maintaining, over, on, or across the said west and east branches of the said river, and the said Beaver Kill, any bridges, mill dams, water fences, or eel weirs, to be erected or constructed in such a manner as in no wise to interrupt or materially injure the free navigation of the waters of the said streams, with rafts or lumber, in time of an ordinary freshet, for running lumber.

II. And be it further enacted, That it shall be lawful for any person or persons, by and under the authority of the state of Pennsylvania, to improve the navigation of the said river, so far as the same, of the westerly shore thereof, is a boundary line between this state and the said state of
Pennsylvania: Provided, That nothing contained in this section shall be constructed to affect the rights of an person or body corporated, nor jurisdiction of this state.

[bordeaux]

The letter from the DEC states that the landowner can prevent the public's right to anchor/fish/wade ONLY where the bed of the waterway is in private ownership AND APPEARS ON THE DEED.

The Frosch deed, which I have a copy of in my possession, consists of 8 different tracts of land, none of which include the land in the channel between Frisbee Island and the New York shoreline. In fact, the point beginning of the First Tract of land, which borders the river, the exact wording on the deed says "Beginning at a rock at the side of the Delaware River."

The fourth tract of land also "clearly" only conveys title to the river bank and not the stream bed.

In addition, there are absolutely no mentions of the H-patent in the Frosch deed.

I also have a document commissioned by the Town of Hancock investigating Frosch's claims to the H-paten written by Bruce O'Mara-Hulbert in 1999, which concludes that his "research finds no evidence that would support Frosch's claim to land under the waters of the Delaware River. All of the deeds I have researched stop at the banks"

[Kilgour Farms]

As far as what the deeds say, it’s obvious that you didn’t do much research on it. The Hardenburgh Patent IS Delaware county. Although many deeds don’t reference the Hardenburgh Patent that does not mean it doesn’t apply, although the deeds I have reference Great lots and the Hardenburgh Patent, one in the same.

Example: If you sign a gas lease, the gas company will go back and do a deed search. They may go back 200-300 years to see if the mineral rights were ever sold. Unknown to you because it doesn’t say on your deed, they were sold 200 years ago and you have no claim to the mineral rights.

You have to go back to the Hardenburgh Patent to see that the land under the river is deeded. Every deed from 1706 to present is based on the Patent. The original registered deed to the property dates back to 1805 after the Patents were split. Then you have to research the deeds to see if there are conveyances that show the bottom of the river was sold to another interest which it has not, hence ownership.

As far as the Bruce O’Mara Hulbert investigation you have mentioned. I cannot find any organization, the Town of Hancock, DEC, NPS or the UDC has any info or record that it was ever done or requested to be done. Just think you may be the only person to have seen this investigation.

It just so happens, I have a copy of the Hardenburgh Patent and all original deeds dating back to 1805. By the way don’t go by the Tax maps, they are not surveyed parcels, hence inaccurate.

FF, that is a great idea never thought of it thanks.

[tether]

I don't know about the rest of you guys, but with all the fuss you all are making about this spot, I'm going to check it out for myself!!! Of course, I'll wait for the bugs first!

[Future Fanatic]

FF, that is a great idea never thought of it thanks.

For laying it out for you, let's say you just exempt me from the final decision, alright?

[Kilgour Farms]

You got it!