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In the first precedent-setting decision on the issue, the Connecticut Appellate Court has adopted the rule that recreational use of a pond or lake has nothing to do with ownership of the underwater land — and everything to do with owning some part of the shore. The April 27 opinion is a victory for Thomas Buccino, who in 1962 purchased an old water-powered thread mill adjacent to Hall’s Pond in Willington. If left to stand, it could also give fishing and sports clubs in Connecticut potential new avenues to access privately-owned bodies of water. “This decision will come as a surprise to the hundreds and hundreds of private land owners affected,” said Robinson & Cole land-use lawyer Dwight Merriam, who is not involved in the case. ” … It’s a far-reaching rule that will have a significant impact.” Buccino owns the dam that creates Hall’s Pond, but not the land under the pond. The 20-acre body of water lies on a 200-acre parcel of land owned by the locally prominent Becker family, which holds the property as Ace Equipment Sales Inc. Purchasing the land in 1996, Ace Equipment Sales leased the fishing rights to the Willington Fish and Game Club. Buccino, in turn, extended fishing rights to Hall’s Pond Fly Fishing Club Inc., and Ace sued to have Buccino’s fishermen banned as trespassers, on grounds that the 530 feet of shoreline owned by Buccino does not entitle him to the “riparian rights” of reasonable recreational use. In 2002, Rockville Superior Court Judge Samuel F. Sferrazza ruled that, regardless of who owned the pond bottom, Buccino was entitled to fishing and boating rights on the whole pond, due to his shoreline ownership. At the state Appellate Court, former Chief Judge Antoinette L. Dupont, sitting by designation, wrote the majority decision, which adopts the recreation-friendly approach followed in Minnesota, Michigan and Oregon, among other states. But in a strong dissent, Judge Barry R. Schaller argued that the bulk of Connecticut cases have followed the common-law rule, which is “more widely used and produces a more sensible and fair result in situations like the present one.” Pennsylvania, New Jersey, Illinois, Ohio, Florida and Alabama have held that for non-navigable lakes and ponds, like Hall’s Pond, no riparian rights attach to properties that merely border the water. In 1938, Pennsylvania’s top court proclaimed that a lakefront property owner’s attempt to exercise surface-water rights “by invading the water is as much a trespass as if an unauthorized entry were made upon the dry land of another.” Schaller’s dissent noted that, after World War II, several western states, where hunting and fishing have become major industries, adopted the “civil law rule” championed by the majority. That rule favors owners of the shore, rather than owners of the underwater land. “We think that Judge Schaller’s dissent is consistent with the caselaw in this state, and protects private property owners,” said Farmington, Conn., lawyer Kirk D. Tavtigian Jr., who represents Ace Equipment Sales. Tavtigian said he plans to request an en banc rehearing of the case. The majority decision, he noted, leaves many questions unanswered, such as the rights of a private pond or lake owner whose shoreline includes public forest, or roadways. Whether such private lakes would be opened to public use is, at least, a possibility under the ruling. Robert B. Cohen, of Farmington’s Levy & Droney, represented Buccino on the appellate brief. He said the decision, and its inevitable review on appeal, is bound to stir great interest from landowners, as well as fishing and boating enthusiasts. Buccino’s current counsel is Francis Miniter of Hartford, Conn., who could not be reached by press time. A Massachusetts organization representing pond and lake owners asked to submit an amicus brief in Ace v. Buccino, but were denied by the Appellate Court, Cohen said. There are more than 2,000 lakes and ponds in Connecticut, according to the DEP. Robinson & Cole’s Merriam said, if the case is reheard, the courts should welcome amicus briefs from title companies, utilities and real estate conveyancers, among others. In his brief, Tavtigian cited a 1965 Wisconsin case that held an “artificial lake located wholly on the property of a single owner is his to use as he sees fit, provided, of course that the use is lawful … “ The majority opinion relied in part on the Restatement of Torts, Riparian Rights, � 843, which states that a landowner who owns up to, but not under, the water “has a right to use the surface in common with other riparian owners in any way that is not a trespass on the bottom of the water … “ Some states that trace rights from the lake bottom property lines have authorized fences to divide lakes and ponds. But allowing people to use the surface, so long as they don’t trespass on the bottom, presents problems of its own, making “ingress and egress very difficult,” Schaller noted in his dissent.

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