Supreme Court, Appellate Division, Second Department, New York.

Martha BARKUS, et al., Appellants,
v.
Philip FUSCO, et al., Respondents.


Dec. 27, 1993.


 Group of landowners brought action against landowner and contract vendees to 
quiet title to parcel of land constituting bed of dried-up lake.   The Supreme 
Court, Nassau County, McCaffrey, J., 150 Misc.2d 976, 571 N.Y.S.2d 176, entered 
summaryjudgment in favor of landowner and contract vendees.   Group of 
landowners appealed.   The Supreme Court, Appellate Division, held that material 
issues of fact, as to location of shoreline of lake at certain time specified by 
deed, which deed granted landowner ownership of land up to lake's shoreline as 
it existed at certain time, precluded summary judgment.

 Reversed and remanded.


West Headnotes

[1] Waters and Water Courses  111
405k111 Most Cited Cases

As general rule, grant of land adjacent to small lake carries title to center 
thereof.

[2] Judgment  181(15.1)
228k181(15.1) Most Cited Cases

Material issues of fact, as to location of shoreline of lake at certain time 
specified by deed, which deed granted ownership of land up to lake's shoreline 
as it existed at certain time, precluded summary judgment in action to quiet 
title to parcel of land constituting bed of dried-up lake.
 **10 Kroll & Blachor, West Islip (Edward J. Ledogar, of counsel), for 
appellants.

 Payne, Wood & Littlejohn, Melville (Daren A. Rathkopf and Alan C. Polacek, on 
the brief), for respondent Philip Fusco.

 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and  Ira 
Levine, of counsel), for other respondents.


 Before BRACKEN, J.P., and BALLETTA, EIBER and COPERTINO, JJ.



 MEMORANDUM BY THE COURT.

 *450 In an action pursuant to RPAPL article 15 to quiet title to a parcel of 
land constituting the bed of a lake, the plaintiffs appeal from an order and 
judgment (one paper) of the Supreme Court, Nassau County (McCaffrey, J.), dated 
March 28, 1991, which, inter alia, granted the motion of the defendant Philip 
Fusco, joined in by the other defendants, for summary judgment, declared that he 
is owner **11 of the property, and severed and continued the counterclaim of the 
defendants Bruce Coulter, Louise Coulter, B & L Realty Co., John MacGregor, 
Leona MacGregor, and Cambridge Realty Associates.

 ORDERED that the order and judgment is reversed, on the law, with costs, and 
the motion for summary judgment is denied.

 This action involves a dispute over title to Trout Lake, a dried-up freshwater 
lake in Hempstead, New York.   The plaintiffs, Martha Barkus and Shirley 
Hershkowitz, own lot 74 on the western side of the dried-up lake, and lots 44 
through 55 on the eastern side of the lake.   The defendant Philip Fusco owns 
lot 73 on the western side of the former lake, and the remaining defendants are 
contract vendees who have agreed to purchase Fusco's interest in Trout Lake.

 In May 1990 the plaintiffs, asserting that they owned Trout Lake in its 
entirety, commenced this action pursuant to RPAPL article 15 to compel a 
determination of title to the dried-up lake bed.   The defendant Fusco 
subsequently moved, inter alia, for summary judgment, submitting evidence that 
his deed granted him ownership of his land up to the shoreline of Trout Lake "as 
the same existed on February 19, *451 1959".   The documentary evidence 
submitted in support of Fusco's motion included a survey which indicated where 
the shoreline of Trout Lake was located in 1959.   The remaining defendants also 
joined in Fusco's motion to dismiss, arguing that under New York law, Fusco's 
deed carried his title to the center of the dried-up lake bed.   In opposition 
to the motion, the plaintiffs submitted an affidavit from a licensed surveyor 
which disputed the location of the 1959 shoreline of Trout Lake depicted in the 
survey relied upon by the defendants.

 The Supreme Court granted the defendants' motion for summary judgment, 
concluding that under the common-law rule, the defendant Fusco's title extended 
to the center of the dried-up portion of Trout Lake lying to the east of his 
parcel.   In reaching its determination, the court rejected the plaintiffs' 
argument that the 1959 survey upon which the defendants relied inaccurately 
described the shoreline of the lake.   We now reverse.

 [1][2] As a general rule, a grant of land adjacent to a small lake carries 
title to the center thereof (see, People v. System Props., 2 N.Y.2d 330, 160 
N.Y.S.2d 859, 141 N.E.2d 429;  White v. Knickerbocker, 254 N.Y. 152, 158, 172 
N.E. 452;  Town of Guilderland v. Swanson, 29 A.D.2d 717, 286 N.Y.S.2d 425, 
affd. 24 N.Y.2d 872, 301 N.Y.S.2d 622, 249 N.E.2d 467), and we note that the 
parties to this appeal do not challenge the determination of the Supreme Court 
that the defendant Fusco's title extends to the center of Trout Lake.   The 
plaintiffs contend, however, that the Supreme Court erred in awarding the 
defendants summary judgment, because an issue of fact exists as to the location 
of the 1959 shoreline of Trout Lake, which affects the determination of where 
the center of the lake is located, and, consequently, the parties' current 
ownership rights to the lake bed.   We agree.   The affidavit of the plaintiffs' 
surveyor disputed the location of the shoreline depicted in the survey submitted 
by the defendants, thus presenting an issue of fact central to the resolution of 
the parties' respective rights and interests in Trout Lake.   Accordingly, an 
award of summary judgment was inappropriate under the circumstances of this 
case.

606 N.Y.S.2d 10, 199 A.D.2d 450

END OF DOCUMENT