Just whose Dam is it, anyway?

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posted on Jul, 27 2013 @ 09:39 AM
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How would you like to buy yourself some beautiful land with woods and a nice creek/small river running down the property line?

It sounds like most people's idea of the American Dream, right? If there was an old Dam sitting on that water when you bought the land? Hey. no matter..right? You didn't buy the dam, you bought the land right up to it? Same thing for your neighbor on the other side.....right? Well.....Not so fast there.

This is a story of buying far more than you bargained for and you may be surprised by how it appears vs. how it turns out in the end.


ALBANY, N.Y. (CN) - New York's Department of Environmental Conservation overstepped its authority by declaring "legal strangers" to be co-owners of an upstate dam and making them jointly liable for its repair and upkeep, a couple claims in court.

Robert and Karen Berger asked a state judge to throw out the DEC decision that named them co-owners, with David and Jody Cook, of the Honk Falls Dam in Napanoch, about 45 minutes west of Poughkeepsie, in Ulster County.


This dam is not small item. It's 300 feet long and roughly 42 feet high. It also heads a shallow water lake. One of the property owners does claim part of the lake, just not the dam. Why should they? This thing dates clear back to the 1890's and has been at the center of a rather epic story of tracking down ownership and then simply assigning it to "Legal Strangers", as the term is used.

A couple pictures here to help with visualizing this. It's easy to hear private property with dam and get to thinking of something small.





I'm sure both sides of the creek figured it was a neat feature to have sitting right next to their land and hey, that must suck for whoever has to worry about maintaining it, huh? ...from a 1981 Structural Report: (Time has not seen it improve with age...)


Visual inspection revealed several deficiencies in the structure.

The following items were noted:

- The right wing wall has seepage at the soil-concrete contact along most of its length;

- The wooden gates on the 6-foot diameter outlet pipes have water running down their face; The mechanical equipment for the lift gates is inoperative;

- The lift arm for the left gate on the 6-foot diameter outlet pipe is missing; The left wingwall has seepage at the junction with the main structure of the dam;

- There is seepage through the dam on the downstream face below the auxiliary spillways;

- The junction of the concrete and rock at the toe of the dam is eroded;

- The construction joints in the dam are badly eroded; and The entire concrete surface of the dam is spalled and deteriorated.
(Spacing Added)
Source: National Dam Safety Program

So what's the story?

In 1999, New York State's Department of Environmental Conservation was directly charged with insuring dam safety by forcing repairs and maintance on existing structures by those who owned them. A series of dam problems and failures had brought things to this and the need to start forcing accountability. Enter Honk Falls Dam to the scene with it's very mixed history of ownership and status.


In 1924, it was conveyed by its builder to United Hudson Electric Corp., which later became part of Central Hudson Gas & Electric. The utility sold it in 1949 to a paper mill, which was barred from using the dam to generate power and had to adhere to the extensive rights to water in Rondout Creek that New York City obtained via eminent domain in 1948.

(Ulster County is part of the New York City watershed, an area of some 1,900 square miles in the Catskill Mountains and the Hudson River Valley that supplies about 90 percent of the water consumed in metropolitan New York.)

Honk Falls Dam subsequently changed hands several times until it was acquired in 1976 by Recycled National Paper. That company lost the dam to tax foreclosure by Ulster County in 1979.


According to the complaint, the DEC spent the 1980's trying to track down who owned this for general public interest and safety. In 1986, according to the claims, it was delcared an orphan without ownership, due to the previous owners losing it and their own business as noted above.

However, according to state records, the DEC tried finding a way to hold National Recycled Paper or it's previous owners liable into 2006. The private property owners here bought the land to either side of it in 1994 and 1999.

As one might imagine, the hunt for the old owners was without success and a dam still needed an owner/fixer!


In 2007, the DEC cited the Bergers and the Cooks for violations of the tougher conservation law that made dam owners responsible for maintenance. The couples were charged with failing to maintain the dam's safety since their 1994 and 1999 purchases of property on either side of it.
The couples answered that they owned the land that abutted the dam - and the Cooks claimed to own the bed of Honk Lake - but they denied owning the dam or any part of it.In 2007, the DEC cited the Bergers and the Cooks for violations of the tougher conservation law that made dam owners responsible for maintenance. The couples were charged with failing to maintain the dam's safety since their 1994 and 1999 purchases of property on either side of it.

The couples answered that they owned the land that abutted the dam - and the Cooks claimed to own the bed of Honk Lake - but they denied owning the dam or any part of it.
Source: Courthouse News

After 9 days of hearings, a DEC Commissioner determined the property owners adjoining the creek to the East and West co-owned the structure as 'Legal Strangers'.

- - - - - - -

Now here is where it gets interesting and anyone who may buy land someday needs to pay attention!

At this point, you may be saying ''That's not fair!", They didn't buy the dam. They've never owned it before and the state was still hunting the old owners into 2006 to find someone to maintain it ...so how can they just pick the people to the sides of it and say "Congratulations! You own an old dam! Now fix it!" Frankly, I was thinking the same thing..until I got to their reasoning and realized ...this is the law in a good number of states, as it happens.

According to established case law, when buying property adjoining a waterway like a creek or small lake, you own the land, shore *AND* out to the half way mark of the water......as well as what might be ON it, if anything.


They may have a case for their suit in how the judgment came about and by a commissioner, not a court, for instance. I think the important thing to take here, aside from some dark humor at the ULTIMATE case of buyer's remorse if it's not oveturned, is that knowing real estate law and the finer points isn't simply a good idea. I'd say it's a matter of survival at times.

Imagine the costs to repair and restore this thing......in a regulatory environment where you can't do much of anything without impact statements and 10 different legal considerations, each step? I feel for the folks because expenses like this would break the best people, I'd imagine.

There you have it. That's whose dam it is. At least until it gets into court. So, careful what you buy out there. It may have more than you wanted!




posted on Jul, 27 2013 @ 10:04 AM
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Well it they own the Dam thing can't they legally tear it down? Surely its not that simple but thats what I would say.
If people downstream of the Dam thing don't like the idea maybe they could pony up some cash to fix it... or the people living on the lake it has created. Lakefront property in the catskill mtns. cant be too cheap, they have money.

But also if you own the Dam you own the river? you own the river do you own the water in it? Do you own the fish in said river? What if the river floods homes downstream? are you liable to those home owners?



posted on Jul, 27 2013 @ 11:02 AM
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Originally posted by tinner07
Well it they own the Dam thing can't they legally tear it down? Surely its not that simple but thats what I would say.
If people downstream of the Dam thing don't like the idea maybe they could pony up some cash to fix it... or the people living on the lake it has created. Lakefront property in the catskill mtns. cant be too cheap, they have money.

But also if you own the Dam you own the river? you own the river do you own the water in it? Do you own the fish in said river? What if the river floods homes downstream? are you liable to those home owners?


I seriously doubt they could tear it down without a major process of State and perhaps even Federal/EPA approval. I have no question there are critters and fish in and around that lake which enviromentalists would sue in a heartbeat to protect and prevent the lake from being drained. The same problem with fixing it tho? I mean, that's a BIG dam when looked at by a homeowner as 'I gotta fix that!?'.

As for the other? I don't know New York state law on this and I'd hesitate to assume anything. Especially being New York and their quirks that way. I can tell you in Missouri, if you have a waterway across your land, you own the shores and you own the land beneath it. You are responsible for the free flow of water being maintained and doing something like diverting or putting a dam up yourself is a major production with plenty of approvals to get.

Despite that? It's an odd thing, but assuming the waterway is big enough, someone with a canoe or even hiking as a conservation officer explained this to me, CAN traverse your land, down that waterway. They're trespassing if they touch a shoreline....but it's a public waterway if it can be travelled from a point off your land TO a point off your land. The law is a weird thing at times, isn't it?



posted on Jul, 27 2013 @ 02:09 PM
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reply to post by Wrabbit2000
 

How interesting! I guess it takes a smart wrabbit to explore another rabbit hole.
No wonder I love ATS. This problem is something I've never even considered until now since all the dams I know about are connected to a power company. Talk about waking up to a surprise like that one in the morning! S&F for teaching me something.



posted on Jul, 27 2013 @ 03:21 PM
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If the last company to own it lost it because of not paying taxes, doesn't the county own it? If you lose property for not paying taxes the usual procedure is for the property to be sold at auction. If the county did not auction it (or if there were no takers) the county still owns it.

And if if it were torn down the owners of the property around the lake could sue for losing their lakefront property.
edit on 27-7-2013 by Magister because: addition





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