Noble v. Echo Lake Tavern, Inc.

6 Citing cases

  1. Great Hill Lake, Inc. v. Caswell

    126 Conn. 364 (Conn. 1940)   Cited 29 times
    Holding that when abutting owner held title to most of land over which plaintiff had right of flowage, plaintiff had exclusive rights only to that portion of lake in which plaintiff held title to land beneath

    Where the individual use is in common with that of the public "the individual user must, in order to establish an independent prescriptive right, perform some act to the knowledge of the servient owner clearly indicating his individual claim of right." 17 Am. Jur. 976. While not infrequently dicta similar to those in the case of Turner v. Hebron, 61 Conn. 175, 188, 22 A. 591, appear to the effect that under such circumstances it is possible to acquire rights of fishing in the whole body of water by prescription, the difficulty of satisfying the requirements is well illustrated by the following cases: Cobb v. Davenport, 32 N.J.L. 369; Providence Forge Fishing and Hunting Club v. Miller Mfg. Co., Inc., 117 Va. 129, 132, 83 S.E. 1047; Commonwealth Water Co. v. Brunner, 161 N.Y.S. 794, 798, 175 App.Div. 153; Tripp v. Richter, 142 N.Y.S. 563, 158 App.Div. 136; Noble v. Echo Lake Tavern, Inc., 254 N.Y.S. 662; notes, 14 L.R.A. 386; 5 A. L. R. 1057; and see Chalker v. Dickinson, 1 Conn. 382, 384; note, 111 A. L. R. 221. As stated, the abutting defendants own most of the land under water and, subject to the right of flowage, may exercise full rights in their individual parcels.

  2. Hammel v. Camp Ranger, Inc.

    275 App. Div. 23 (N.Y. App. Div. 1949)   Cited 1 times

    Such a common use would include I think any inexpensive and temporary structures such as docks or piers set up for convenience in launching or landing boats and canoes. Such structures and the use thereof would not constitute adverse user in view of the general and common use of the lake ( Noble v. Echo Lake Tavern, Inc., 142 Misc. 427). The judgment should be affirmed, with costs.

  3. Carlino v. Barton

    76 Misc. 2d 240 (N.Y. Misc. 1973)   Cited 7 times
    Holding that only an express reservation or restriction in the deed, such as running the description to the shore at high water mark, will rebut the presumption and exclude or reserve title in the shore or beach between low and high water mark

    The proof is more than sufficient to sustain plaintiffs' burden and I find and hold that plaintiffs used, occupied, and controlled the waters of Brant Lake adjoining their premises, adversely and hostile, openly, notoriously, exclusively, continuously, and founded on the assertion of right, for the required period and without in any way being rebutted, and have thus established their right to enter upon and use the adjoining waters of the lake by prescription based on adverse user, free from interference from anyone. As I found in the case of Brant Lake Shores v. Barton ( 61 Misc.2d 902), I also find the facts and manner of user in this case distinguishable from those in Tripp v. Richter ( 158 App. Div. 136, supra); Commonwealth Water Co. v. Brunner ( 175 App. Div. 153), and Noble v. Echo Lake Tavern ( 142 Misc. 427). Accordingly, I find and adjudge as follows: That plaintiffs are seized of the premises described in the deed dated September 21, 1943 from Bernard Barton and Rachel B. Barton, his wife as grantors, to the plaintiffs herein, as grantees, in fee simple absolute, the northerly boundary line of which is the low-water mark of Brant Lake, and which said premises include the accreted alluvion within the boundaries fixed herein, but which excludes title to the waters and lands under the waters from the low-water mark to the center or thread of the lake; that plaintiffs are seized of the right by prescription to use the waters of Brant Lake adjoining their premises for boating, bathing and swimming; that all and each of the defendants and every person claiming under them are barred from all claim or interest or estate whatsoever in the said premises owned by the plaintiffs and barred and enjoined from any and all interference with, encroachment upon and prevention of the right by prescripti

  4. Brant Lake Shores v. Barton

    61 Misc. 2d 902 (N.Y. Sup. Ct. 1970)   Cited 4 times
    In Brant Lake Shores, the court held that plaintiff established title to the lake bed by adverse possession of the upland parcel, pursuant to RPAPL 511, which provides that possession of a portion of any premises described in a deed is deemed to constitute possession of all of the property described in the deed, because plaintiffs' deed erroneously included title to the land beneath the lake.

    The manner in which plaintiff and its predecessors used, occupied, maintained, improved and controlled the beach and adjoining waters, as set forth above, adversely and hostile, openly, notoriously, exclusively, continuously, and founded on the assertion of right, for the required period, without being rebutted by defendants Barton, established the right to use the beach, and the waters of the lake by prescription based on adverse user. The facts and the manner of user in this case I find distinguishable from those in Tripp v. Richter ( 158 App. Div. 136) ; Commonwealth Water Co. v. Brunner ( 175 App. Div. 153), and Noble v. Echo Lake Tavern ( 142 Misc. 427). While location or fixing of low-water mark in this case is superfluous, in view of the foregoing, had it been relevant or necessary the plaintiff would have failed to establish it by means of the testimony concerning the placing of a 10-inch plank on top of the dam at the outlet of Brant Lake in or about the year 1938.

  5. Findley Lake Property Owners, Inc. v. Town of Mina

    31 Misc. 2d 356 (N.Y. Sup. Ct. 1956)   Cited 5 times

    There must be some specific assertion of right, otherwise the user will be presumed to be either permissive or trespassing. ( Commonwealth Water Co. v. Brunner, 175 App. Div. 153, 159; Nellis v. Countryman, 153 App. Div. 500.)" ( Noble v. Echo Lake Tavern, 142 Misc. 427, 428; see, also, Tripp v. Richter, 158 App. Div. 136.) In the instant case, I find nothing more than a permissive right to the public to use the waters of this lake for boating, fishing, swimming and picnicking at the level maintained at the time by the owner of the dam.

  6. Slud v. Guild Properties, Inc.

    6 Misc. 2d 188 (N.Y. Sup. Ct. 1952)   Cited 6 times

    There the owner making the improvements knew the extent of its title and no actual ignorance of an outstanding title was present as in this case. Likewise, in Noble v. Echo Lake Tavern ( 142 Misc. 427, affd. 228 App. Div. 743) cited by the defendant, a property owner built expensive buildings on his own property and another property owner knew that they were built with the expectation of using Echo Lake. The court held there was no estoppel in questioning the right to use the lake and distinguished the present situation in this language (p. 429): "In conscience he ought to speak when there is a right and duty to speak.