Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the October 22, 2012 mailing of "Constructive Notice":

Sea Change in Deed Construction

In a decision with far-reaching implications, the Court of Appeals has announced a bright line rule of deed construction concerning grants of lake-front property. Knapp v. Hughes, 2012 NY Slip Op 06991 (Oct. 18, 2012).

The Common Owners of a lake and surrounding upland had made a deed to the defendants’ predecessor for most of the upland wherein the description ran “along the edge of Perch Pond.” The Common Owners subsequently made a deed to plaintiffs’ predecessor for the balance of the upland and “all remaining lands of the Grantors.” The instant dispute revolved around competing claims to the bed of Perch Pond. Following a rule of construction first enunciated 170 years ago and repeatedly invoked since then, the Third Department had held that the description “along the edge of Perch Pond” was sufficient to exclude the land under water from the conveyance. The Court of Appeals reversed.

The Court of Appeals said that “to make a plain and express reservation of rights to underwater land, a grantor must do more than use the word ‘edge’ or ‘shore’ in a deed. He or she must say that land under water is not conveyed, in those words or words equally clear in meaning.”


This decision will call into question the ownership of the underwater land of ponds, lakes, streams, creeks and other non-navigable bodies of water throughout the state. For almost two centuries descriptions have been drawn with reliance upon the hitherto established body of case law. In addition, similar long-established rules of construction govern the inclusion/exclusion of street beds from deed descriptions. Will the Knapp rule be extended to those situations as well? With the same retroactive effect? 

In dictum, the Knapp Court gives a glimpse of its underlying concern: “It seems highly likely that most purchasers of waterfront property assume that they are acquiring not only the dry land, but the right to use the water also.” Traditional analysis focused on the intent of the grantor as expressed by the words of the grant. Does this dictum signal a shift toward the expectations of the grantee as the starting point for the analysis?