Opinion
No. 122572
February 9, 2004
MEMORANDUM OF DECISION
The plaintiff, Edward Socha, Jr., brings this action against the defendant, Scott Bordeau, for an injunction prohibiting the defendant from trespassing on plaintiff's property. The plaintiff has moved for summary judgment alleging that there are no genuine issues of material fact and that the plaintiff is entitled to judgment as a matter of law in order to obtain an injunction to have the defendant remove docks which he has placed upon the land owned by the plaintiff.
The parties own properties that abut each other on the west boundary of the plaintiff's property and the east boundary of the defendant's property. The correct boundary lines were established in a binding arbitration. The arbitrator rendered a decision giving Bordeau 39 feet of land for a total of "73 feet" and that "the line shall follow the shoreline." Both parties signed an agreement which was then submitted to the court as a stipulated judgment. Socha did not grant the defendant land he owned at the bottom of Gardner Lake which had been above the water line but was covered by the lake waters when a dam was erected sometime after 1805. The deed to the plaintiff's parents, from whom he took the property, states that the property "continuing south westerly into the lake and following the land of the old ditch which is now underwater about 350 feet to the point where the old ditch and the shore of the "great pond" as it was in 1805 . . ." The plaintiff has established by the stipulation that he did not deed to the defendant the land under the water. Thus the defendant owns the land up to the shoreline, but not beyond. The question is whether the defendant may build docks on the land at the bottom of the lake without the authorization of the plaintiff who owns the land. The defendant did erect docks on that land prior to this action. The plaintiff offered to give him a license to allow the previously erected docks to remain. The defendant refused the offer and the plaintiff, therefore, brought this action for an injunction to have the court order the docks removed.
Discussion
The defendant argues that he has riparian rights on the waters, citing the case of Ace Equipment Sales v. Buccino, Superior Court, judicial district of Tolland, Docket No. 72150, 31 Conn. L. Rptr. 260 (January 14, 2002, Sferrazza, J.), which held, "if a natural stream is so dammed as to form a lake or pond permanently or for an extended period of time that artificial lake or pond is treated the same as a natural one as far as riparian rights are concerned."
In Ace, however, the issue was whether the owner of the pond had the right to refuse abutting owners the use of the pond for recreational purposes such as fishing. The plaintiffs in that case put up a fence to keep the defendants from using the pond for recreational purposes. The court found that the abutting owner had the right to use the pond for recreational uses because the plaintiffs' ownership of the bottom of the pond did not give it the right to refuse riparian rights. However, that is not the issue in this case. Here the question is the defendant's right to build docks on the lake bottom, not riparian rights.
The plaintiff argues that his deed and the agreement clearly showed that he retained ownership of the lake bottom. As early as September 8, 1988, the plaintiff wrote to the defendant complaining about the use of his land, specifically "construction of a boat dock." As owner of the land abutting the lake, the defendant has no rights below the high water mark. Miller v. Lutheran Conference Camp Ass'n, 331 Pa. 241 (1938) ( Pa. Supreme Court). It is clear from the deeds and the stipulated judgment in this case that the defendant's land does not extend under the waters of Gardner Lake.
The defendant argues that the arbitrator was not asked to determine the extent of the lake bottom owned by each of the parties. The court agrees. The plaintiff's ownership of the lake bottom was never in dispute and the defendant has made no claim of ownership of the lake bottom. He claims only that he has riparian rights to the water bordering upon his property. However, as the Ace case clearly states, while an owner of land bordering the lake has riparian rights to use the water, he does not have ownership or the right to use the bottom of the lake to build docks.
"Riparian rights have been defined as not an easement in the water or appurtenance to the land. Rather they constitute a property right which is inseparably annexed to ownership of land adjoining a watercourse. See Buddington v. Bradley, 10 Conn. 213, 218 (1934)." Peck v. Edelman, 200 Sup.Ct. 9032, 27 Conn. L. Rptr. 633 (Kocay, J.), p. 7.
"Such rights are usufructuary in the water and entitles the owners of the land to which they are annexed to make use of the water for the ordinary purposes of domestic life, the watering of animals, bathing, boating and general recreational uses." See Harvey Realty v. Borough of Wallingford, 111 Conn. 352, 359-61 (1930). Peck, supra, at p. 7.
The evidence in this case indicates that the defendant has not claimed title to any subaqueous land and the evidence shows that he holds title only to the lot bordering on land to the high water mark of Gardner Lake.
". . . where the land under the water is owned by others, no riparian rights attach to the property bordering on the water, and an attempt to exercise any such rights by invading the water is as much a trespass as if an unauthorized entry were made upon the dry land of another." Miller v. Lutheran Conference Camp Assn., 331 Pa. 241 (1938); Peck, supra, at p. 7.
Finally, in Schroder v. Battistoni, 151 Conn. 458 (1964), where abutting owners sought to restrain the owner of a subaqueous land from removing their docks which extended into the lake, the Supreme Court ruled in favor of the defendant finding that the abutting owners had no implied easement to maintain such docks. The court recognized the subaqueous owner's right to remove the docks to the water's edge.
Conclusion
The court finds that there is no genuine issue of the material fact that the plaintiff is the owner of the land at the bottom of the lake and that the defendant is not. Bordeau's land extends only to the high water mark. Accordingly, he has no right to construct docks upon land below the high water mark belonging to the plaintiff. Therefore, his installation and maintenance of docks on said land is a trespass upon the land of the plaintiff.
In view of all of the foregoing, summary judgment shall enter for the plaintiff.
D. Michael Hurley, JTR