New York Canal Law 10/31/17. History and Background: Colonial Efforts for Inland Nav in NY. History and Background: Early Efforts for a NY Canal

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1 New York Canal Law The Law Office of Laura E. Ayers, Esq. 223 Church Street Fultonville, NY (518) History and Background: Colonial Efforts for Inland Nav in NY 1724 Cadwalladar Colden, Surveyor General to the Governor of the colony of New York sent to make a report on Western NY His report vis-a-vis fur trading: the Mohawk River was superior to the St. Lawrence River for inland navigation even with the short portages necessary to reach Lake Ontario and Lake Erie Gov. Moore of Colonial NY proposed to improve inland navigation à political infighting crushed the idea History and Background: Early Efforts for a NY Canal In 1777 Gouverneur Morris was noted for talking about canals being built to improve communications and navigation across NYS 1

2 History and Background: NY Early Efforts Legislation in 1791 lead to the creation of: Western Inland Lock Navigation Company To develop the route up the Mohawk to Lake Ontario and possibly to the Finger Lakes Northern Inland Lock Navigation Company To develop a passage from the Hudson to Lake Champlain and Vermont Their purpose was to improve the navigability of the rivers and only use locks to by-pass rapids History and Background: Early NY Efforts Phillip Schuyler was appointed president of both Companies Performed the engineering himself b/c civil engineering was a nonexistent profession in the US Navigation on the Mohawk began in Schenectady WILN Co. built 5 locks around Little Falls (on the north shore) And built 2 miles of canal connecting the Mohawk and Wood Creek History and Background: Authorization for the Canal In March of 1810 Jonas Platt, State Senator and James Eddy of the WILN Co. presented the Legislature with a proposal that Canal Commissioners be appointed Jonas Platt 2

3 History and Background: Authorization for the Canal The First Canal Commission included: Gouverneur Morris Stephen Van Rensselaer James Geddes, LS, Benjamin Wright, LS, Jonas Platt, Thomas Eddy DeWitt Clinton Went on an Expedition in June of 1810 Stephen Van Rensselaer Columbia University graduate, lawyer Private secretary to his uncle, George Clinton New York Assembly New York Senate United States Senate Mayor of New York City: As mayor, Clinton also held office as state senator ( ) and lieutenant governor ( ) Governor of New York State New York Canal Commissioner Governor of New York State Narrowly lost the race for President of the United States to James Madison. Governor DeWitt Clinton History and Background: Authorization for the Canal In April of 1811 the Commissioners provided their report to the Legislature Favoring the inland route due to fears that the St. Lawrence seaway and thus the French would benefit from the Canal more than New Yorkers Also supported an entirely artificial waterway The Legislature began passing bills relative to the canal Appropriating $15,000 to finance the Bd of Commish. Adding Robert Fulton & Robert Livingston as Commish. 3

4 History and Background: Authorization for the Canal War of 1812 highlighted the need for better transportation 1815 Jonas Platt and Thomas Eddy with Mayor DeWitt Clinton s help began pushing the canal again Gained public support Legislature in Feb of 1816 appropriated $20,000 for surveys even as it delayed construction Appointed 5 new commissioners (Clinton, Van Rensselaer, Ellicot, Holley, Young) Financing of $6 million was needed (the actual cost was $7 million, very close to the estimate) History and Background: Authorization for the Canal The Great Western Canal was divided into 3 sections covering 363 miles Western segment from Lake Erie to the Seneca River Middle segment from Seneca River to Rome Eastern Section from Rome to Albany History and Background: Authorization for the Canal Chapter 262 of the Laws of 1817 Passed April 15, 1817 Entitled: An Act respecting navigable communications between the great western and northern lakes, and the Atlantic ocean. Preamble: WHEREAS navigable communications between lakes Erie and Champlain, and the Atlantic ocean, by means of canals connected with the Hudson river, will promote agriculture, manufactures and commerce, mitigate the calamities of war and enhance the blessing of peace, consolidate the union, and advance the prosperity and elevate the character of the United States. 4

5 History and Background: Authorization for the Canal Construction began on July 4, 1817 in Rome, NY James Geddes was appointed surveyor/engineer of the western portion Benjamin Wright was appointed to the middle section Charles Broadhead was appointed to the eastern section Benjamin Wright History and Background: Summary of the Canal 363 Miles long, 40 feet wide, 4 feet deep Completed in 1825 Wedding of the Waters Started on the Packet Boat Seneca Chief on Oct 26, 1825 in Buffalo, NY Arrived at NYC on Nov. 4 The Seneca Chief Returned to Buffalo on Nov. 23 History and Background: Summary within 15 years NY became the biggest port in the Country moving greater tonnages than Boston, Baltimore and New Orleans combined. Every major city in the state, except Binghamton and Elmira falls along the trade route of the canal 80% of the population of upstate NY still lives within 25 miles of the canal path The Canal was enlarged several times in 1835, 1895 and 1903 Between 1905 and 1918 new techniques were used to canalize the rivers and lakes that the original man made canal had been built to avoid. àbarge Canal 5

6 Acquisition Methods Used History and Background Voluntary Cessation or Grant Canal Commissioners were Empowered to make application in behalf of this state.to the proprietors of the land through which such navigation may be carried for cessions or grants to the people of this state, to be received by said commissioners in their discretion Chap. 188 Laws of 1811 Section 3 Chap 231 of the Laws of 1812 Section 2 Voluntary Cessation, Grant or Donation of Land or money Said commissioners are hereby authorised (sic) and required to make application in behalf of this state to the proprietors of of lands through or near which the said canals or either of them may or may be proposed to pass, to all bodies politic and corporate, public or private and all citizens or inhabitants of this or any other state of the United States for cessions, grants, donations of land or money for the purpose of aiding in the construction or completion of both or either of the said canals, according to the several grantors or donors and to take to the people of this state such grants and conveyances as may be proper and competent to vest a good and sufficient title in the said people to the lands so to be ceded or granted aforesaid for the purposes above mentioned. Chapter 237 of the Laws of 1816 Section 4 6

7 Voluntary Cessation, Grant or Donation of Land Between 1816 and 1821 inclusive, approximately 200 grants of donations of private land (known as cessions ) were made to the state for canal purposes Guard Lock for Original Canal at the Schoharie Crossing Voluntary Cessation, Grant or Donation of Land Issues: Descriptions used in the cessions are often very general without clear indication given as to the actual extent of the grant Would title revert to the original owner of lands ceded to the State but never used for canal purposes? (water privileges reverted in some instances of canal abandonment) Voluntary Grants were never recorded in the various County Clerk's offices where the lands so granted were located Unless an exception or other reference is made in a subsequent conveyance by the same grantor, one will not find record of a grant to the state for canal purposes. (Rexford v. Knight) Chapter 262 of the Laws of 1817 Enabling Legislation for Canal In Section III the Canal Commissioners were authorized to: by themselves and by any and every superintendent, agent or engineer employed by them, to enter upon, take possession of, and use all and singular any lands, waters and streams necessary for the prosecution of the improvements intended by this act 7

8 Chapter 262 of the Laws of 1817 Original Canal Lock #20 VanAlstein v. Belden, 41 AD 123 (4 th Dept 1899) Their ipse dixit seemed all that was essential. Describing the powers of the Canal Commissioners relating to the accession of lands for canal purposes Chapter 262 of the Laws of 1817 Section III further states: and it shall be the duty of appraisers to make a just and equitable estimate of the appraisal of the loss and damage, if any, over and above the benefit and advantage to the respective owners and proprietors or parties interested in the premises, so required for the purposes aforesaid, by and in consequence of making and constructing any of the works aforesaid Often the benefit was deemed to outweigh the damages and no compensation was paid Chapter 262 of the Laws of 1817 Section III further states: and the canal commissioners shall pay the damages to be so assessed and appraised and the fee simple of the premises so appropriated shall be vested in the people of this state. Fort Hunter, NY 8

9 Chapter 262 of the Laws of 1817 made no provision as to the manner in which possession should be taken or title acquired. VanAlstein v. Belden, 41 AD 123 (4 th Dept. 1899) Chapter 262 of the Laws of 1817 Rogers v. Bradshaw, 20 Johns, 735(1823) Interprets Chapter 262 of the Laws of 1817 Issue: Canal employees had cut timber and relocated the Waterford and Whitehall turnpike road during improvements to the Northern Canal The Supreme Court held that relocating a road was not a canal improvement therefore the actions of the Canal employees were not excused by the act of Rogers v. Bradshaw on Chap. 262 of the Laws of 1817 The Chancellor disagreed with the Supreme Court: Surely, a statute, vesting large powers resting very much for their exercise in the undefined discretion and checked only by the gentle admonition of doing no unnecessary damage ought to be construed more benignly and more liberally. Especially ought this to be the case when the powers are to be applied to a great public object, calculated to intimidate by its novelty, its expense and its magnitude, and which depended, for all its successful results, upon decision of character as well as upon maturity of judgment. 9

10 Chapter 262 of the Laws of 1817 Section IV states: That whenever, in the opinion of the canal commissioners, it shall be for the interest of this state, for the prosecution of the works contemplated by this act, that all the interest and title (if any) in law and equity, of the Western inland lock navigation company, should be vested in the people of this state, What interest and title (if any) did the WILN Co. have?àchapter 49 of the Laws of 1793 Revised Statutes (1827) Chapter 9 Title 9 Article 1 Section 16: In the construction of every canal commissioners shall have the power and it shall be their duty to make all such canals, feeders, locks, dams aqueducts and other works as they shall deem the proper construction of such canal to require and they shall enter on, and take possession of and use all lands, streams and waters of which the appropriation for the use of such canals and works shall in their judgment be necessary. Revised Statutes (1827) Chapter 9 Title 9 Article 3 Section 48àStatute of Limitations to claim damages Every person interested in premises so appropriated, if he intend to make a claim for damages, shall, within one year after such premises shall have been taken for the use of the state, exhibit to the appraisers a statement of his claim, signed by himself.and specifying the nature and extent of his interest in the premises appropriated and the amount of damages; and every person refusing or neglecting to exhibit such claim, within the time prescribed, shall be deemed to have surrendered to the state his interest in the premises so appropriated. 10

11 Canal Board Digests Digest of Claims and the action thereon by the Legislature and the Canal Board With awards made by the Board of Canal Appraisers , 1859, New York State Library Legislative Action Revised Statutes (1827) Chapter 9 Title 9 Article 3 Section 50 A regular entry of every determination and appraisement made by the appraisers, certified and signed by the appraisers making it, and containing an apt and sufficient description of the premises so appropriated, the names of the persons interested, and the sums estimated to each for benefits and damages, shall be made in a book kept for that purpose, by the canal commissioners. 11

12 Revised Statutes(1827) Chapter 9 Title 9 Article 3 Section 51 A transcript if every such entry, signed in like manner, and acknowledged or proved as a conveyance of lands, shall be recorded in the clerk s office of each county in which the premises appropriated shall, in whole or in part, be situated. Enlarged Canal: Empire Lock, Fort Hunter, NY Revised Statute(1827) Chapter 9 Title 9 Article 3 Section 52 The fee simple of all premises so appropriated, in relation to which, such estimate and appraisement shall have been made and recorded, shall be vested in the people of this state. Enlarged Canal: Empire Lock #29 (1835) Double Locks, first Enlargement of the Canal c

13 Acquisitions under the Modern Canal Law Canal Law Article 5: Acquisition of Property for the Canal System 40. Acquisition of property 1. The acquisition of property necessary for purposes of the improvement, use, maintenance, control, management or repair of the canal system, shall be pursuant to the provisions of the eminent domain procedure law by the corporation or by the commissioner of transportation at the request of the corporation. Acquisitions under the Modern Canal Law Canal Law 40(14) Notwithstanding any other provision of this section, the corporation or the commissioner of transportation at the request of the corporation shall have the power to acquire by grant or purchase, in the name of the people of the state of New York, any property which he or the corporation deems necessary for any of the purposes provided for in this section, and payment therefor, if any, shall be made in the manner prescribed in this section for the payment of adjusted appropriation claims, provided, however, that no real property shall be so acquired unless the title thereto shall be approved by the attorney general. Canal Maps 13

14 Chapter 9 of the Laws of 1825 An Act for reprinting the Laws and other Official Documents relating to the Erie and Champlain Canals Section II And it be further enacted, That it shall be lawful for the joint committee on canals, on being furnished by the canal commissioners with correct maps (delineating the routes of the Erie and Champlain canals and designating the lands through which they pass whether belonging to or conveyed by individuals to the state, or which damages have been or are to appraised) to direct the secretary of the state to procure the same to be engraved. Chapter 9 of the Laws of 1825 Section IV required copies to be provided to: The Governor The Lt. Governor The Clerk of every County The Senate The Assembly The State Library Rest of the copies to be distributed to the commissioners of the canal fund to be distributed as they deemed proper Geddes Maps of 1817 Description from the State Archives: This map and profile in ink and water color of the proposed route for the Erie Canal was made by James Geddes in Geddes was appointed engineer in charge of the survey by the commissioners appointed under legislation of 1816 (Chapter 237). He was instructed to survey and map a route for the canal which, west of the Genesee River, was somewhat to the north of the route he had surveyed in On a scale of 10 chains = 1 inch, the map shows proposed line of the canal (in green); roads; houses; mills; settlements; streams, ponds, and lakes; steep terrain; swamps and marshes; town and lot lines; and other features adjacent to the canal route. 14

15 Revised Statutes (1827) Chapter 9 Title 9 Article 1 FIRST CANAL LAW REQUIRING MAPS Section 4 A complete manuscript map and field notes, of every canal that now is, or hereafter shall be completed, and of all the lands belonging to the state adjacent thereto or connected therewith shall be made, on which the boundaries of the every parcel of such lands, to which the state shall have a separate title, shall be designated and the names of the former owners and the date of each title be entered Revised Statutes (1827) Chapter 9 Title 9 Article 1 Section 5 Every such map shall be complied by the canal commissioners, who shall, for that purpose cause all necessary surveys to be made, when prepared, it shall be submitted to the canal board for its approbation, and when so approved shall be signed by the canal commissioners, be certified by them as correct, and be filed in the office of the comptroller. Revised Statutes (1827) Chapter 9 Title 9 Article 1 Section 6 required that a copy of the maps, field books and notes of the surveys be transmitted and filed in the county clerk s office of every county the canal intersected 15

16 Revised Statutes (1827) Chapter 9 Title 9 Article 1 Section 7 A transcript from the original map, or from a copy thereof, certified as correct, by the office with whom such map or copy shall be filed, shall be received as presumptive evidence, in all judicial and legal proceedings. Chapter 451 of the Laws of 1837 Section 6 The original maps of the canals of this state, which purport to have been made and completed under an in virtue of the first article of title nine chapter nine of the first part of the Revised Statutes; which said maps are now filed in the office of the comptroller; and such maps of said canals as hereafter shall be made, completed, approved, signed, certified and filed under and in virtue of the act referred to, are hereby declared to be presumptive evidence that the lands indicated on said maps as belonging to the state, have been taken and appropriated by the state as and for the canals; and a transcript from any such maps, certified as required by the act referred to, shall be of equal effect with the original. Holmes Hutchinson Maps of Fulfill the mandate of Chapter 9 Title 9 of the Revised Statutes & Chapter 451 of the Laws of 1837 Shows the Erie canal by every county, including roads, municipal boundaries, buildings, waterways, bridges and landowners Ink, wash and charcoal maps Sized 18x26 inches Red Line shows metes and bounds of the inner edge of the towpath Blue line shows state ownership 16

17 Holmes Hutchinson Maps of HH Maps: Explanatory Remarks The red line, described along the inner edge of the towing path, is the line upon which all the measurements in the direction of the length of the canal were made. The space enclosed by the blue lines represents the portion embraced within the limits of the survey as belonging to the state, and the names of the adjoining proprietors given as they stood at the time of executing the survey. The distances are projected upon a scale of two chains to the inch. HH Maps: Explanatory Remarks the state claims beyond the blue lines, so far as will enable it, in all cases, to repair, maintain and defend, its works : Claiming as of right, in all places, not only that which may strictly be considered the canal, but every thing fairly connected with its safety, beneficial use and enjoyment. 17

18 Holmes Hutchinson Maps of NYS Archives homepage Click Images, Audio and Video from left menu Click Transportation from top menu or scroll down Click New York State Canal System Click Holmes Hutchinson Survey Maps Click on any of the following: Erie Canal, Champlain Canal, Erie and Champlain Canal Feeders, Crooked Lake Canal, Cayuga and Seneca Canal or Chenango Canal Chapter 338 Laws 1894 Section 4 Maps and field-notes ---There shall be kept on file in the office of the state engineer complete manuscript maps and field-notes of every canal now or hereafter to be built and of all the lands belonging to the state adjacent thereto or connected therewith, in which the boundaries of every parcel of land to which the state shall have a separate title, shall be designated, and the names of the former owners and the date of each title entered... All such maps and field- notes approved by the canal board or canal commissioners or certified by such board or commissioners or by the state engineer to be correct, shall be presumptive evidence of the truth of the facts therein stated and of the ownership by the state of the lands therein described. Chapter 338 Laws of 1894 Section 5 Requires certified copies of the Maps and Field Notes to be filed in the County Clerk s office as relate to canal lands within the county These copies were to have the same force and effect as the originals. 18

19 Schillner Field Port Byron Schillner Maps of 1896 B0253. Barge Canal sectional maps ("Schillner Maps"), ca ca. 132 cu. ft. (71 maps) Description From State Archives This series consists of 71 manuscript maps depicting land along the Erie, Champlain, and Oswego canals acquired by the State for canal purposes up to Schillner Maps of 1896 Each sectional map provides detailed information on State-owned property, depicted as the area between two solid blue lines. The maps are especially important because they show, within dotted blue lines, the locations of the 1825 canal alignment and the related structures which had since been obliterated, such as locks, slips, dams, bridges, and roads. In addition they show city, town and county lines; streams, rivers, bodies of water and islands; property lines, along with names of owners and sometimes acreage of land; and streets, railroad lines, businesses and civic landmarks (ice companies, mills, cemeteries, etc.). 19

20 Schillner Maps of 1896 No scale is given, but figures mark canal frontage and survey measurements by number of chains (1 chain = 66 feet). Schillner Maps These maps are not presumptive evidence of the state s ownership because they were not approved by the canal board or the canal commissioners, nor certified by the board, commissioners or the state engineer. May constitute ancient records which are prima facie evidence of their contents pursuant to CPLR Rule 4522 so long as they have been on file in the state or the register of any county any county clerk, any court of record or any department of the city of New York for more than 10 years Chap 147 Laws 1903 Laws of 1903, Chapter 147. Section 4 Empowers the State Engineer to take property needed for the Barge canal improvements for the Erie, Oswego and Champlain Canals 20

21 Chap 147 Laws 1903 Mapping of the lands appropriated was required An accurate survey and map of all such lands shall be made by the state engineer who shall annex thereto his certificate that survey the lands therein described have been appropriated for the use of the canals of the state. Such map, survey and certificate shall be. filed in the office of the state engineer, and a duplicate copy thereof, duly certified by the state engineer to be such duplicate copy shall also be filed in the office of the superintendent of public works Chapter 147 Laws 1903 The court of claims shall have jurisdiction to determine the amount of compensation for lands, structures and waters so appropriated. The work to improve the canal was by contract Before any such contract shall be made the state engineer shall divide the whole work into such sections or portions as may be deemed for the best interests of the state in contracting for the same, and shall make maps, plans and specifications for the work to be done and materials furnished for each of the sections into which said work is divided Chap 391 Laws 1909 Authorized the Barge Canal Improvement of the Cayuga and Seneca Canals Section 4 Basically says all requirements set forth in Chapter 147 of the Laws of 1903 for the Erie Canal, Oswego Canal and the Champlain Canal apply to the improvement of the Cayuga and Seneca Canals 21

22 Chap 746 Laws 1911 Authority to appropriate lands for the Barge Canal Terminals Section 8 Requires accurate surveys and maps of all lands, structures and waters for Barge Canal Terminals State Engineer has to certify on the map that the lands are necessary for the Barge Canal Terminals State to pursue purchase if possible rather than to use condemnation power Residency Maps Residency Maps A compilation of the parcels appropriated for the construction of the Barge Canal or what is called today the New York State Canal System They also show the location of the channel, structures and terminals along the System. 22

23 Chapter 199 of the Laws of 1910 An Act to provide for the mapping of certain canal lands and the lands adjacent thereto belonging to the state, and making appropriation therefor. Section 1. The state engineer and surveyor is hereby directed to make the necessary surveys, field notes and manuscript maps of all such portions of the Erie, Oswego and Champlain canals that are not within the lines of the improved Erie, Oswego and Champlain canals, and of all the lands belonging to the state adjacent thereto or connected therewith on which the boundary line or blue line of any parcel of such land to which the state shall have a separate title shall be designated, together with the names of adjoining landowners. Chapter 199 of the Laws of 1910 Section 2 Every such map when completed shall be submitted to the canal board for its approval and when so approved shall be signed by the members of the canal board, be certified by them as correct and filed in the office of the Comptroller. Chapter 199 of the Laws of 1910 Section 3 A transcript of the original map or from a copy thereof, certified as correct, by the comptroller or by the state engineer and surveyor shall be received as presumptive evidence in all legal or judicial proceedings. 23

24 Blue Line Maps Blue Line Maps The Blue Line Maps basically show the State Lands that are associated with the Old Canal independent of the state lands appropriated for the Barge Canal. The Blue Line Maps are deemed presumptive evidence of the state s title to lands within the blue line Blue Line Maps Methods 24

25 Modern Canal Law Maps Canal Law 24 Making and recording maps. There shall be kept on file in the office of the corporation complete maps of every canal now or hereafter to be built on which the boundaries of every parcel of land to which the state shall have a separate title shall be designated and the names of the former owner and date of each title entered. All such maps heretofore approved by the commissioner of transportation or the corporation, or certified by such commissioner, corporation or by the state engineer or hereafter approved by the corporation to be correct, shall be presumptive evidence of the truth of the facts therein stated and of the ownership by the state of the lands therein described. Modern Canal Law Maps Canal Law 24 Original Map on file with the Corporation Certified Copy on file with the Department of State Those on file in the county clerk s office are evidence of the state s title These are the Residency Maps Modern Canal Law Maps Canal Law 25. Making and recording of "Blue Line" maps. The commissioner of transportation shall cause the preparation of maps of the Erie, Oswego, Champlain and the Cayuga and Seneca canals as they existed prior to and independent of lands appropriated for barge canal purposes and of all lands belonging to the state adjacent thereto or connected therewith, and there shall be designated on such maps the boundaries of the lands to which the state holds title, and so far as possible the names of the owners of the adjoining lands. 25

26 Modern Canal Law Maps Canal Law 25 Continued Every map when completed shall be approved and certified to as correct by the commissioner of transportation and be certified to as correct by the chief engineer. Modern Canal Law Maps Each of said maps so filed shall be regarded as an original copy. A blue or white print copy of such map or portion of such map or maps as related or applies to any particular county of the state shall be transmitted to and filed in the office of the clerk of such county, or in the office in such county wherein conveyances are required by law to be recorded and such filing shall constitute a notice to all persons of the state's title to and ownership of said lands. A transcript of such maps certified as correct by the officer with whom such map or maps shall be filed shall be received as presumptive evidence of the state's title to the canal lands as of the date designated on such maps in all judicial or legal proceedings. Presumptive Evidence Rule A fact [evidence] which must be received and treated as true and sufficient until and unless rebutted by other evidence Presumptive evidence is not conclusive and may be explained or contradicted The effect of the presumption is to place the burden on the adversary to come forward with evidence to rebut the presumption; In order to over come the presumption, the adversary must produce "substantial" evidence to the contrary. 26

27 Presumptive Evidence Rule: Miller v. State Miller v. State, 164 A.D. 522 (3d Dept. 1911) aff d 223 N.Y. 690 (1918) Controversy over boundary line of property along the Tonawanda creek. Millers claimed that the Holmes Hutchinson Maps did not show that the property in question had been appropriated by the state. Presumptive Evidence Rule: Miller v. State In connection with these maps, and as a part of them, there is a written note which provides that "Where any stream or pond is on the same level with the waters of the canal and the navigation is conducted in such stream or pond, the stream or pond is included in the canal to the high-water mark of the stream with a berm bank on each side of fifteen links where no towing path is designated on the map." RESULT: Lands outside the blue lines can still be State Lands Presumptive Evidence: Miller v. State The State also introduced the field notes, which the court correctly did not give the presumption afforded the official maps, but they still constituted competent proof of the State s appropriation of the Creek. 27

28 Presumptive Evidence Holmes Hutchinson Maps Presumptive Evidence Rule Rexford v. Knight, 11 N.Y. 308 (1854) To prove his own title, the defendant (Knight) produced maps of a portion of the Erie canal as originally constructed, and of the same portion as enlarged, These maps were not in anyway authenticated, as the original, or copies of any maps made by statute presumptive evidence. However defendant proved by other evidence, that since the period of the Canal s Enlargement the premises had been used and occupied by him (adverse possession). Presumptive Evidence Carpenter v. City of Cohoes, 81 N.Y. 21 (1880). Plaintiff s horse fell down a bank leading to a change bridge used for the passage of draft horses from one side of the canal to the other The bridge and its approaches were also used by the public as a highway across the canal, in continuation and as part of a road known as the Boght road. The City demonstrated with a State Canal Map that the State, not the City owned the property where the accident occurred. This map was under the provisions of the act of 1837, chapter 451, section 6, prima facie evidence of the title of the State. 28

29 Modern Canal Law Chapter 766 of the Laws of 1992 An Act to amend the canal law, the public authorities law and the state finance law in relation to expanding the powers and duties of the New York State Thruway Authority, transferring jurisdiction over the New York State canal system to the thruway authority, creating the New York State canal recreationway commission, and creating a New York State canal system development fund and to repeal certain provisions of the canal law and the public authorities law in relation thereto. Public Authorities Law Canal corporation 1. There is hereby created a public benefit corporation known as the "New York state canal corporation" (hereinafter referred to as the "canal corporation") as a subsidiary corporation of the authority. The canal corporation is solely created to, and shall have only the power to, operate, maintain, construct, reconstruct, improve, develop, finance, and promote the New York State canal system. 29

30 Public Authorities Law 382 Section 7. The canal corporation shall have the power to: (a) operate, maintain, construct, reconstruct, improve, develop, finance, and promote the New York state canal system as defined in the canal law; (n) enter on any lands, waters, or premises for the purpose of making borings, soundings, and surveys; Public Authorities Law 382 Section 9 Permits canal lands not needed for canal purposes within the Adirondacks to be transferred to the DEC NYS Canal Law Organized into 14 Articles with approximately 142 Sections (see handout for titles of the Articles) Of interest to surveyors are the Articles entitled: Article 1: Short Title and Definitions (see handouts) Article 3. Canal Engineering. Sections 23, 24 &25 (mapping requirements, see handout) Article 5. Acquisition of Property for the Canal Article 6. Abandonment of Canal Lands (next section) Article 7. Bridges and Highways Article 10: Permits 30

31 Canal Law Article 1: Short title and definitions 1. "New York State Canal System", "Canal System" or "Barge Canal System" shall each mean all the canals, canal lands, feeder canals, reservoirs, canal terminals and canal terminal lands of the state as hereinafter defined. All general references herein to "canal" shall be deemed to mean the New York state canal system. 2. "Canals" shall mean the channel and adjacent state-owned banks of the inland waterways of the state constructed, improved, or designated by authority of the legislature as canals and shall include canalized rivers and lakes, canal water supply reservoirs, canal water supply feeder channels and all appertaining structures necessary for the proper maintenance and operation of the canals. Canal Law Article 1: Short title and definitions 4. "Erie Canal" shall mean the portion of the canal system connecting the Hudson river at Albany with the Niagara river at Buffalo, and for the purposes of article thirteen-a of this chapter and section ninetytwo-u of the state finance law and subdivision ten of section three hundred fifty-one of the public authorities law, shall be deemed to include the historic Erie Canal and its western terminus in the city of Buffalo and historic lock number 1 in the city of Albany. Canal Law Article 1: Short title and definitions 8. "Canal Lands" shall mean all lands and waters forming a part of the canal system title to which was originally vested in the state, acquired by the state or which may in the future be acquired by the state for canal purposes. 9. "Blue Line" shall mean the boundary of canal lands owned by the state previous to the approval of chapter one hundred forty-seven, laws of nineteen hundred three. 10. "Old Canal Lands" shall mean canal lands lying within the blue line. 31

32 Article 3: Canal Engineering 23. Record of measurements The corporation shall require every engineer employed on canal engineering to enter in permanent field books a complete record of all surveys, field measurements and construction notes. These books shall be filed in the corporation and shall be available for public inspection under such conditions as the corporation may establish. 24. Making and recording maps. (Residency Maps) 25. Making and recording of "Blue Line" maps. Article 5: Acquisition of Property for the Canal 40. Acquisition of property Subsection 1: corporation s enabling power to use eminent domain for canal purposes Subsection 2: allows either fee or easement interest to be taken pursuant to an acquisition map (EDPL) Canal Law Article 5 Section 40 Subsection 17: allows the taking of a temporary easement or easement that expires upon the occurrence of an event or elapse of time At the time of expiration of the easement the corporation has to create a certificate in the nature of a release of the easement that extinguishes the easement That certificate must be sent to DOS who notifies the landowners via a copy certified by the attorney general, and The certificate is also is filed in the land title records of the county 32

33 Canal Law Article 5 Section 42. Removal of encroachments Corporation is authorized to remove encroachments from canal lands if the encroachments are interfering with the canal s operation upon 30 days notice to the encroachers to voluntarily remove the encroachment If the encroachment is not removed, the state can remove it without liability Black River Canal Lock at Rome, 1920 Canal Law Article Exchange of property Rather than paying $$ to appropriate lands the corporation is authorized to exchange unnecessary canal lands for lands needed for the canal Property acquired has to have equal value to the property exchanged Corporation can enter an agreement with the landowner to exchange property Property to be exchanged has to first be declared to be abandoned Canal Law Article 5 Section 43 Abandonment has to be approved by the Attorney General pursuant to section 50 Corporation is allowed to execute a quit claim deed Deed has to be filed at the DOS before Co. Clerk When lands appropriated exceed the value of lands exchanged, there shall be an adjustment and payment will be made according to section 41 33

34 Canal Law Article 7: Bridges and Highways 60. Alteration of county roads or town highways Commissioner of Transportation can elect to move highways that interfere with the Canal, by discontinuing the highway in the Town or County pursuant to the Highway Law Then the Commissioner has to file the description of the new road in the Town or County Discontinuance of the old highway cannot occur until the new highway is opened Canal Law Article 7: Bridges and Highways 62. Maintenance by state of certain bridges over the canal system 63. Maintenance by state of alteration to certain highway bridges not state owned 64. Commutation for bridges The commissioner of transportation may commute with owners and claimants of bridges over any canal, by paying such owner or claimant such sum in lieu of a bridge as may be agreed on between the claimant and the commissioner of transportation. Canal Law Article 7 Bridges and Highways 65. Private road in lieu of farm bridges If the commissioner of transportation cannot agree with the owner of a farm bridge spanning a canal as to the amount of commutation in any case where he is of the opinion that the state should erect such bridge, and the commissioner of transportation determines that a private road through adjoining lands will sufficiently accommodate such owner.he may take the necessary action to lay out a private road for the accommodation of the owner, in the manner prescribed by law for laying out private roads and pay to the owner of the lands through which the same is laid out, the damages assessed. 34

35 Canal Law Article 7: Bridges and Highways 66. Restrictions on the construction of farm and road bridges 67. Construction of bridges by municipal corporations 68. Bridges spanning canal channels (cannot interfere with navigation on the canal) 69. Damages caused by excessive loads 69-a. Changes in bridges and highways on or over canals and canal lands Canal Law Article 10: Permits 100. Granting revocable permits Types of Permits Temporary use of Canal Lands (so long as does not interfere with canal navigation/purposes) To use Canal Structures To divert canal waters for sanitary, farm purposes, or industrial use to cut, gather and haul away ice from the canals For storage at canal terminals Canal Law Article 10: Permits 101. Railroads operating over canals 102. Pipe lines crossing canals 103. Tolls for lock and lift bridge passage by vessels and use of locks and lift bridges 104. Use of dry docks for repairs This photograph shows people waiting to take a trip on the Erie Canal in Auriesville NY, Trains were beginning to replace canals as the preferred method of transporting goods. But a trip down the Erie Canal was always fun, a fine thing to do on a beautiful summer afternoon. 35

36 Abandonment of Canal Lands 1821 Constitutional Prohibition In 1821 NYS Amended its constitution to prohibit the disposition of State owned Canal Lands "the legislature shall never sell or dispose of * * * the said navigable communications or any part or section thereof, but the same shall be and remain the property of the state forever." In the Constitution of 1846, the same provision was embodied in section six of article seven Syracuse v. Sweet, 129 N.Y. 316 (1891) 1894 Constitutional Amendment Added an exception to the prohibition of disposing of canal lands to those that were no longer useful or necessary for canal purposes 36

37 NYS Constitution Today The Legislature is still Prohibited from selling, abandoning or otherwise disposing of canal lands Article 15 Section 1 of the NYS Constitution EXCEPT those lands which were no longer useful or necessary for canal purposes Article 15 Section 2 of the NYS Constitution Legislative Action Canal Lands had to be abandoned by Legislative Act They were usually conveyed to Railroadsà Chapter 143 of the Laws of 1878 An Act relating to the disposition of the prism and banks of the Crooked Lake Canal to the Penn Yan and New York RR Citiesà Chapter 391 of the Laws of 1878 An Act authorizing the city of Binghamton to use a portion of the Chenango canal for a public street Legislative Action OR SOLD Chapter 344 of the Laws of 1878 An Act to amend chapter four hundred and seventyseven, entitled An Act to provide for the disposition and sale of certain lateral canals of this state, and the lands, rights and other property connected therewith. Advertise and sell the Crooked Lake Canal, its appurtenances and water privileges connected therewith Advertise and sell that portion of the Chenango canal described in section 2 of the act Also the Chemung Canal and its feeders, branches appurtenances and water privileges (water rights to revert to original owners or their successors) After the close of navigation in 1878, advertise and sell the Genesee Valley Canal, its feeders, branches and appurtenances and water privileges 37

38 Legislative Action Chapter 344 of the Laws of 1878 continued: Cites and villages had the right and option to purchase canal lands for one quarter of their assessed value Legislative Action Sometimes the Legislature authorized the canal board to dispose of abandoned canal lands Chapter 50 of the Laws of 1909 The commissioner of general services may sell and convey at public or private sale the right, title and interest of the state in and to any real property, acquired for canal purposes, which the commissioner of transportation may determine to have been abandoned for such purposes, or as to which a determination of abandonment shall have been heretofore made pursuant to law. Public Lands Law ARTICLE 4. ABANDONED CANAL LANDS AND STRUCTURES. Section 50 Sale of abandoned canal lands 38

39 Canal Law Section 50 In 1992 the Canal Corporation was given authority to abandon Canal Lands 50. Authority to abandon canal lands 1. Authority is hereby conferred upon the corporation to abandon any portion of barge canal lands, barge canal terminal lands, or old canal lands and appertaining structures constituting the canal system prior to the barge canal improvement, which have or may become no longer necessary or useful as a part of the barge canal system, as an aid to navigation thereon, or for barge canal terminal purposes. Canal Law Section 50: Authority to abandon canal lands This authority, however, shall not include the abandonment of a barge canal terminal unless such terminal has been by a special act of the legislature previously determined to have become no longer necessary or useful as a part of the barge canal system, as an aid to navigation thereon, or for barge canal terminal purposes. Canal Law Section 51: Method to Abandon Canal Lands Prior to abandonment the Corporation has to publish notices in newspapers 1x a week for 3 weeks of the proposed abandonment Such notice shall describe the lands proposed to be abandoned with sufficient certainty to identify them and invite interested parties to file written statements either supporting or opposing the proposed abandonment. If the assessment for such lands proposed for abandonment is equal to or greater than fifty thousand dollars, the corporation shall hold a hearing 39

40 Canal Law Section 51: Method to Abandon Canal Lands Then, the corporation may in its discretion declare such lands abandoned for the purposes of the canal system. The corporation shall thereupon issue an official order abandoning the lands for canal purposes together with a map and description of the lands abandoned and dispose of any portion of canal lands so abandoned. Any money realized from the sale of such land shall be deposited into the canal fund. Questions on Canal Abandonment All questions should be directed to the Land Record Contacts of the Canal Corp. at their respective Divisions Albany Syracuse Buffalo If the Division is unable to help you then contact Division headquarters in Albany Canal Abandonment Procedure File Application requesting abandonment A determination is made whether the lands are needed for canal purposes/maintenance App. then sent to the Canal Recreational Commission as an advisory board to get their approval of the proposed abandonment Land must be surveyed, standards for the maps are through the Senior Land Surveyor, he meets you in the field Survey is completed 40

41 Canal Abandonment Procedure Appraisal of the property is conducted, Corp. hires appraiser, applicant pays The value it taken to the board to certify the value Applicant is told the price Then the application goes to the Office of Real Property Mgmt for closing or auction Procedure is on Canal Corp. website under Doing business Real Property Basics of Sales and Permits Effect of Abandonment NYS has sovereign immunity from Adverse Possession or Prescriptive easement claims when it holds property for a public or governmental purpose However, that immunity is lost when the state holds property in a proprietary capacity. If canal lands are abandoned, they can be adversely possessed and prescriptive easements can be acquired against the state. Effect of Abandonment Montfort v. Benedict, 199 A.D.2d 923 (3d Dept. 1993). in 1981 the lands were declared to have been abandoned for canal purposes (L 1981, ch 741). Without any other sovereign or public purpose (see, State of New York v Case, 86 Misc 2d 43, 381 N.Y.S.2d 210), such abandoned property would be held in a proprietary capacity. When the Blue Line land in question was abandoned, there no longer existed a statutory prohibition to alienability; a prescriptive easement by adverse use became legally possible at that time. 41

42 Sources of Information Canal Corp NYS Archives NYS Library Museums The End Special Thanks to: ugarret O Connor, PLS, Senior Land Surveyor, NYS Canal Corp. ucraig Williams, Curator of History, New York State Museum Bibliography: uwedding of the Waters, The Erie Canal and the Making of a Great Nation by Peter Bernstein uthe Artificial River: The Erie Canal and the Paradox of Progress, by Carol Sheriff 42