The opinion of the court was delivered by: Smith, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
It has long been established New York law that a conveyance of land on a pond or stream includes the land under the pond or stream, to the center of the water, unless a contrary intention is made clear. We reaffirm that principle in this case, and hold that its application does not depend on minor variations in the language of the conveyance.
Defendants own land on the shore of Perch Pond. Both plaintiffs and defendants claim to be the owners of the land under the pond that is adjacent to defendants' waterfront land. Both thus claim to have the exclusive right to use that part of the pond for swimming, fishing and other purposes.
The parties' claims depend on the interpretation of two 1973 deeds from Anthony and Marilyn Furlano to defendants' predecessors in title. According to defendants, these deeds conveyed both waterfront land and land under the water; plaintiffs say that only the waterfront land was conveyed.
It is undisputed that the Furlanos owned both waterfront and submerged land. Anthony Furlano had received in 1968 a deed conveying land "along the edge of Perch Pond." That deed added the words: "The Grantor further conveys any rights which he may have in and to the lands under the waters of Perch Pond which bound and abut unto the lands hereinabove conveyed." But when the Furlanos sold most of their land in 1973 to defendants' predecessors in title, the conveyances they gave echoed the first of the quoted phrases from the 1968 deed, but not the second: the 1973 deeds conveyed land "along the waters [sic] edge of Perch Pond" and "along the edge of Perch Pond." Plaintiffs, claiming under a 1993 deed by which the Furlanos conveyed their remaining waterfront property and "all remaining lands of Grantors," assert that the 1973 deeds conveyed only the land next to the water, not the land under it, and that all the submerged land once owned by the Furlanos passed by the 1993 deed to plaintiffs' predecessors in title.
Plaintiffs brought this action to enjoin defendants from interfering with or using the underwater property "and the water thereon." Supreme Court granted summary judgment for defendants, but the Appellate Division modified and ruled in plaintiffs' favor on the issue now before us, holding that the 1973 deeds "set the boundaries at the edge of the pond, a phrase which touches the land not the water" (Knapp v Hughes, 25 AD3d 886, 890 [3d Dept 2006]). After further proceedings, Supreme Court entered a judgment from which we granted defendants leave to appeal (18 NY3d 827 ), bringing up for review the Appellate Division's earlier order on summary judgment. We now reverse.
It seems highly likely that most purchasers of waterfront property assume that they are acquiring not only the dry land, but the right to use the water also. Who would buy land on a pond or stream, if informed that he or she could only look at the water, not boat on it or fish or swim in it? This common-sense point was recognized by our court in Gouverneur v National Ice Co. (134 NY 355, 364 ):
"The value, such as they have, of small non-navigable lakes and ponds as a general rule is mainly in their relation to the adjacent lands."
Even before the Gouverneur decision, our case law supported the rule that a purchase of waterfront property is presumed to include the adjacent underwater land. In Seneca Nation v Knight (23 NY 498 ), we interpreted a conveyance of land "along the meanders" of Cattaraugus creek, and held that the land conveyed ran to the center of the river. We said that parties "may . . . if they will" restrict their grants to shore land, "but the restriction ought to be found in very plain and express words" (id. at 500).
In Gouverneur, we expressed a similar thought: "The boundaries are described as along the pond; and unless in some manner qualified or restricted they by legal construction had the effect to embrace its bed within their grants. This in such case is the presumed intent unless the contrary appears" (134 NY at 365).
In Stewart v Turney (237 NY 117, 121-122 ), we said:
"If the grantor desires to retain his title to the land . . . underneath the water the presumption must be negatived by express words or by such a description as ...