Ludington v. Marsden

181 A.D.2d 176, 586 N.Y.S.2d 165, 1992 N.Y. App. Div. LEXIS 9124
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 14, 1992
StatusPublished
Cited by3 cases

This text of 181 A.D.2d 176 (Ludington v. Marsden) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ludington v. Marsden, 181 A.D.2d 176, 586 N.Y.S.2d 165, 1992 N.Y. App. Div. LEXIS 9124 (N.Y. Ct. App. 1992).

Opinion

[178]*178OPINION OF THE COURT

Denman, P. J.

This is an action to settle a boundary dispute over a peninsula of accreted land abutting the Little Salmon River near its outlet to Lake Ontario in the Town of Mexico, New York. The adjoining landowners and competing claimants to the peninsula are plaintiffs Ramsey and Shirley Ludington, owners of a parcel lying generally north of the disputed property, and defendants Russell and Charlene Marsden and Francis and William Koehler, owners of two separate parcels, lots 11 and 12, respectively, lying generally east of it. Critical to an understanding of this case are several surveys: the 1955 "King” survey commissioned by the Marsdens’ and Koehlers’ common grantor, Loren Marsden; the 1965 "Hackett” survey for the Ludingtons; the 1986 "Getman” surveys of the Mars-den and Koehler properties; and the 1988 "Venditti” survey ordered by the trial court. Also relevant are the property descriptions contained in the deeds of the parties and their predecessors.

CHANGES TO THE SHORELINE

The surveys and deeds indicate that the three properties in question lie near a 90 degree bend in the Little Salmon River. The river flows in a generally northerly direction past the Marsden and Koehler properties to the east, then flows generally westerly as it passes the Ludington property to the north before resuming its northerly flow into Lake Ontario. The surveys and deeds also show that the shoreline and centerline of the river have changed drastically over the years in the vicinity of the subject properties. The centerline of the river has shifted to the west in relation to the Marsden and Koehler properties and to the south in relation to the Ludington property. More importantly, several features of the shoreline have changed over the years. Whereas, historically, there was a large area lying between the low water mark and high water line of the river in this vicinity, a large area of permanent highlands, including the disputed property, now lies west (i.e., riverward) of the low water mark described in the 1939 deed of the Ludingtons and depicted in the 1955 King survey. In fact, it appears that a portion of the disputed property consists of highlands that now exist west of the former center-line of the river described and depicted in the various deeds and surveys. The property in dispute lies to the west of the [179]*179Marsden and Koehler properties and to the south of the Ludington property. The disputed land lies outside the deed descriptions defining all three properties, a circumstance that, by itself, strongly implies that the shoreline has changed.

THE DEED DESCRIPTIONS

The parties derive title to their respective properties from a common grantor, Wilbur Jordan. The Jordan property lay generally between County Route 40 to the north and east and the Little Salmon River to the west and south. In 1939, Jordan conveyed to Homer and Marjorie Ludington a portion of his property bounded on the north by Route 40 and on the south by the river. The deed described the east boundary of the Ludington property as running from the center of the highway (at a right angle with it), a distance of "490 feet more or less to low water mark of Salmon River”. The southern boundary of the property was described as running "along low water line of said river 160 ft.” The record contains no survey made contemporaneously with the 1939 conveyance. The relevant boundaries of the Ludington property are depicted, however, in the 1955 King survey. The King survey depicts the east and south lines of the Ludington property exactly as described in the 1939 deed, i.e., as running south from the road 490 feet to the low water mark of the river, thence running westerly along the low water line.

The Ludington property was conveyed in 1963 to plaintiffs Ramsey and Shirley Ludington. The 1963 deed contains the same property description as the 1939 deed; nevertheless, the Hackett survey, performed two years later, measures the Ludingtons’ east line as running approximately 550 feet from the road to the "observed” water line. In other words, the Hackett survey, upon which plaintiffs base their claim, depicts the river bank in the southeast corner of the property as being about 60 feet farther from the road than as described in the Ludingtons’ deed and that of their predecessor and as depicted in the King survey performed 10 years earlier.

The King survey was made in contemplation of Jordan’s proposed sale of the remainder of his property to Loren Marsden. That conveyance, which took place in March 1956, encompassed approximately 11 acres bounded on the north and east by Route 40, on the south by property previously acquired by Loren Marsden, and on the west by the Little Salmon River and the Ludington property. As illustrated by [180]*180the King survey, the 1956 deed describes the southern boundary of that large parcel as running 620 feet from the highway to "a point in the center of Little Salmon Creek”. The deed states, and the King survey depicts, that the west line of the 11-acre parcel runs from the aforementioned point on the center line of the creek, "thence N. 5° 43’ W. 270 feet to a point in the low water line of said Little Salmon Creek, said point being in the south east corner of the Homer Ludington property and being S. 5° 43’ E. 490 feet measured at right angles from the center line of the said County Highway Route #40 leading from Texas to Mexico Point East side; thence N. 5° 43’ W. 490 feet along the east line of the Homer Ludington property to its point of intersection with the center line of said County Highway Rt. No. 40.” Thus, most of the west line of the 11-acre 1956 conveyance was coterminous with the east line of the Ludington property. The remainder extended under water, and eventually ran along the centerline of the river, on the same bearing as that common boundary.

After acquiring the 11-acre parcel from Jordan, Loren Mars-den combined it with his previously acquired property to the south. He then subdivided that portion of it lining the east side of the river into 12 lots, each measuring 75 feet in width. We are concerned in this case with subdivision lots 11 and 12, the northernmost lots, which now are owned by defendants Marsden and Koehler, respectively. The 1955 King survey shows that, at the time, the south sidelines of each of those lots extended to the west below the high and low water line of the river to the centerline of the river. Further, the survey shows that the west lines of those lots were on the same bearing as the east line of the Ludington property. Finally, the survey shows that the southern boundary of the Ludington property, i.e., the then low water mark of the river, intersected the west boundary of lot 12 at a point approximately 45 feet from the centerline of the river. Thus, at that time, the southwest corner of lot 12 was permanently under water.

The Koehlers acquired lot 12 in 1984. Their deed, like the deeds of their predecessors, describes their property exactly as depicted in the 1955 King survey. The Koehler property is described as being bounded on the south by a line that runs "71 feet to [through] highwater mark on East bank Little Salmon Creek; thence [an undefined distance] on same course to center line of said creek” and as having a western bound[181]*181ary that runs from the aforementioned point at the center of the creek a distance of 75 feet on a bearing of north 5 degrees, 43 minutes west, the same bearing as the east boundary of the Ludington property.

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Cite This Page — Counsel Stack

Bluebook (online)
181 A.D.2d 176, 586 N.Y.S.2d 165, 1992 N.Y. App. Div. LEXIS 9124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ludington-v-marsden-nyappdiv-1992.