Dear Mr. Knauf,
Theresa and I received your letter of October 24. There's one small point we'd be amiss to not bring to your attention.
You say your only remaining claim related to the beach is that the public has the right of passage along the lake shore below the ordinary high water mark. Funny thing is, Mr. Knauf, that claim never held any water - not a single drop - to begin with. That's because in New York State the Lake Ontario boundary happens to be the mean low water mark, set in 1985 at 243.3 feet, not the fluctuating ordinary high water mark you cite in your letter.
You can understand how that might put a different footing on things. Like using centimeters instead of inches, or Celsius instead of Fahrenheit. I know, "Felcher", "Fletcher" - what's the difference. Except in this case the difference is enormous. The current high water mark level in Rochester stands at 247.1 feet. That means the low water mark of 243.3 feet puts our property line out into the lake, nearly four feet deep under water. So, while the public does indeed own all the water above the land, riparian landowners hold title to some of the land under it.
Did I mention that those beach-front riparian landowners are also members of the same public that owns all the water above the land? Should have mentioned that.
Those arguments aside, even if we accepted your 247.3 foot high water mark as boundary, the public's right of passage along the lake shore would still be constrained to a miniscule 2.4 inches, barely enough for a Chihuahua. And current lake levels are exceptionally low. Wouldn't take much of a rise to obliterate those 2.4 inches.
Two sections of New York law, Penal Law 140.00-140.10 and Environmental Conservation Law (ECL) 11-2111-2117, define the rights of landowners versus recreationists or others who might enter or use private property. Penal Law 140.10 states (in part):
"A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders."
In Penal Law 140.00, which defines the terms used above, the term "enter or remain unlawfully" is explained as follows:
A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.
We obviously can't fence in or otherwise enclose our beachfront back yard to exclude intruders. It's unlikely the Town of Irondequoit would give us a permit for it even if we wanted to. That leaves posting in a conspicuous manner as the only practical option to protect ourselves against persons entering our property with license and privilege.
Anyway, thought you'd want to know.