Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the March 18, 2012 mailing of "Constructive Notice":

“Ambulatory Boundary” Defines Ocean-Front Estate

In 1900, the Town of East Hampton was embroiled in ongoing disputes with upland property owners about the northerly boundary of the Atlantic Ocean beach. In an attempt to resolve those disputes, the Trustees of the Freeholders & Commonality of the Town of East Hampton offered a quitclaim deed to each upland owner delineating an agreed-upon boundary. That boundary was fixed as the general line of grass growing along the ... Banks or Dunes. Fast-forward 112 years and the validity of that monumentation has been upheld. Macklowe v Trustees of the Freeholders & Commonality of the Town of East Hampton, 2012 NY Slip Op 50452(U) (Sup. Ct., Suffolk Cty., March 2, 2012).

The plaintiffs 1992 deed contained an ambiguity. The easterly line supposedly ran 264 from the point of beginning to ... the southerly line of beach grass. The description continued westerly along said ... southerly line of beach grass. Unfortunately, the beach grass line was not even close to 264 south. It actually lay more than 400 south of the point of beginning. The plaintiffs claimed ownership down to the beach grass line. The Town Trustees challenged the plaintiffs' claim by focusing on the single issue of whether a natural object set forth in a deed description must be fixed and permanent or whether it can be ambulatory (changing naturally over time). Their argument was that reference to ambulatory natural objects cannot be enforced with certitude and, therefore, the distance and area recited in the deed should control.

The Court (Whelan, J.) disagreed.  The court found that the beach grass line is a natural object. Pointing out that the rules of deed construction give the greatest weight to natural objects, the Court went on to analogize this case to other cases involving ambulatory water-course boundaries. Finding that a natural object need not be fixed, the Court determined that it need only be a tangible landmark in order to indicate a boundary, having visibility, a pronounced level of permanence and stability, and a definite location. Based on the expert testimony of a coastal geologist, as well as a formal viewing of the site by the Court, all of these criteria were found to be established.


Beach grass viability is greatly influenced by soil chemistry, porosity' water retention capacity, etc., which are in turn influenced by natural forces like wind, tides, erosion and accretion. In addition, man-made structures such as jetties can be a factor. While plaintiffs won the day, the decision makes clear that these various forces can also cause the lot size to shrink in the future.  The decision also contains analysis of more prosaic issues such as the burden of proof on the Trustees to establish their claim of title and the possibility that the plaintiffs grantor was a missing party to the action.