Who Owns the Lake?

Following the Revolutionary War, the Commonwealth of Pennsylvania created a Land Office to resolve disputes of land ownership and to manage the sale of vast vacant lands now owned by the new Commonwealth.

An interested purchaser applied to the Land Office for a warrant which authorized the applicant to claim an amount of land described in the document. The warrant holder then had the responsibility to have the described property surveyed in accordance with Land Office specifications. A complete survey was submitted to the Land Office, along with a fee, and the Land Office issued the warrant holder a patent (the equivalent of a deed).

The warrant, survey and patent process was intended as an opportunity for a democratic distribution of land to encourage settlement of the Commonwealth's wild vacant lands. To a considerable degree the process was corrupted by political and economic interests who manipulated these early sales to acquire huge swaths of land as speculative ventures.

By 1803 nearly all of the land surrounding the Lake shore had been patented by four individuals. Two of these patents, which stretched from Alderson to almost the West Corner, had been acquired from the original patent holders in 1793, by Matthias Hollenback, a wealthy Wilkes-Barre merchant and northeastern Pennsylvania's greatest land baron. In 1840 his son, George M. Hollenback, acquired the last two substantial patents at the Lake, running from Warden Place to nearly the Yacht Club area.

The Commonwealth also held title to the beds of rivers, streams and lakes, but sales of these beds were not common. In 1818 and 1822 the State Legislature adopted legislation which essentially gifted the 45-mile Lehigh River to the Lehigh Coal and Navigation Company, to construct the Lehigh Canal system. It was the only privately-owned river in the United States. On July 19, 1965, Gov. William W. Scranton signed legislation repealing the 1818 and 1822 acts, and the Lehigh River reverted to State ownership.

The bed of the Susquehanna River is also owned by the Commonwealth. But in the Wyoming Valley, coal companies patented the river bed in order to mine coal under the river. The titles to the river beds are believed to still reside in defunct coal companies. The bed of the eleven- acre North Lake in Ross Township was owned by a private individual. In late 1980 the Luzerne County Tax Claim Bureau sold the bed of North Lake for unpaid real estate taxes to a joint enterprise composed of a realtor and an area lawyer. In late December 1985 this enterprise transferred North Lake to the North Lake Improvement Association.

The ownership of the bed of Harvey's Lake remained with the Commonwealth until the Fall of 1870 when Cong. Hendrick B. Wright and Judge Charles T. Barnum applied to the State for warrants to the land underneath the Lake, which had not been included in any previous state warrants. The Lake was divided into two large parcels, and on October 13, 1870, the state granted Wright a warrant for 285 acres and Barnum a warrant for 329 acres. The Lake was surveyed on November 3, and patents were issued to Wright and Barnum on February 20, 1871. The Lake patents include the Lake bed beyond the low-water mark of the Lake. Shore-line owners typically own to the low-water mark but there are variations among lakeside deeds.

Hendrick B. Wright (1808-1881) was a Plymouth native who became the Valley's most influential politician of his time - the Dan Flood of the nineteenth century. Trained as a lawyer, Wright became the Luzerne County District Attorney in 1834. He served in the Pennsylvania House of Representatives in 1841-1843. He was a member of the U.S. House of Representatives in 1853-1855, again in 1861-1863, and again in 1877 through 1881. Wright was a frequent guest at the Rhoads Hotel at Sunset. In 1879 H.B. Wright purchased a 9-acre plot from James W. Rhoads on the hill behind the hotel where Wright constructed a Summer house in 1880-1881, completed a few months before he died in September 1881.

Charles T. Barnum (1813-1887) was born in Kingston Township, the son of a shoemaker. In his youth he trained as a newspaper printer. In the mid-eighteenth century he served as a Luzerne County Commissioner, Clerk to the Luzerne County Commissioners, and in November 1856 he was appointed as an Associate Judge for Luzerne County. In early 1870 C.T. Barnum purchased the Harvey's Lake home of Judge Warren J. Woodward, who had acquired the Lake property in May 1853. The Barnum property was known as the Lakeside Farm and later as the Barnum Homestead.

The Wright and Barnum Lake patents drew controversy. There was concern whether the patents would conflict with any future development of the Lake as a water supply to the Wyoming Valley. Would the patents bar public fishing at the Lake? Similarly, the patents could interfere with the Lake's logging industry, a private enterprise which began three decades earlier and was then conducted by the Hoffman Lumber Company at the Outlet.

In response, Wright and Barnum noted they had stocked the Lake in August 1871 with black bass purchased at Mystic Bridge, Connecticut, for public fishing. They had no intent to prevent public use of the Lake. In support of Wright and Barnum there was newspaper commentary which deplored the unsightly logging practices on the Lake.

Nevertheless, the legislature responded with a law declaring Harvey's Lake and Harvey's Creek to be navigable waters, in effect "public waters." The law was actually proposed to the legislature by the Hoffman Lumber Company, but it had popular local support, with Wright and Barnum opposing the act.

The effect of the law was not to challenge Wright and Barnum's ownership of the land under the Lake, but to assure access to the Lake waters by adjoining property owners. In fairness to Wright and Barnum, they probably never intended to exclude public use of the Lake. Wright and Barnum planned to engage in ice-harvesting on the Lake in the winter, and the Lake patents arguably provided a legal basis to support the business. They built four large ice houses in the Alderson corner for their ice business. The Hoffman Lumber Company was booming logs in several sections of the Lake, creating an unsightly and sometimes dangerous nuisance. At one time, a log boom threatened to damage the Inlet bridge. By obtaining Lake patents, Wright and Barnum may have been able to limit Hoffman's operations on the Lake and to protect the pristine integrity of the Lake for lakeside owners.

On April 4, 1871, Wright and Barnum exchanged an "undivided one-half interest" in each other's patents. In effect, each held a one-half interest in the whole of the Lake bed. In the event of Wright's death, his one-half interest passed to his heirs. Similarly, if Barnum were to die, his one-half interest passed to his heirs.

There is no record that the Wright and Barnum patents curtailed log booms at the Lake. Logging operations at Outlet Mills severely declined anyway by the 1880s. Logging at Alderson became a significant industry between 1887 and 1914. The Wrights, father and son, continued to stock a variety of fish at the Lake over the years. On a rare occasion, the patents were used against Wright when he ran for office. In 1874, an editorial stated Wright's Lake patent was "a piece of vandalism of which the meanest land pirate that ever infested the county would have been ashamed or never attempted."

Hendrick B. Wright died on September 2, 1881. His substantial estate, including his interest in four coal collieries—Warrior Run, Wright, Smith and Pitch - passed to Wright's five children: Annie Augusta Wright; Mary E. Hawley; Ellen H. Greame; Caroline S. Wright and to his son, George R. Wright. H. B. Wright's 50 percent interest in the Lake patents was not noted in his will but would, too, have passed in one-fifth shares to his five children.

George Riddle Wright was a lawyer and founder of the Dallas Bank. For years he spent most of his summers at the Rhoads Hotel and in 1892 he unsuccessfully began a campaign to change the name of Harvey's Lake to Shawanese Lake. Otherwise, he lived in the Civil War-era family mansion at 138 S. River St., Wilkes-Barre. He was a full-blooded member of the Anthracite Aristocracy. George R. Wright died on October 1, 1932. He never married and he left his entire estate to the Wilkes-Barre branch of the Pennsylvania Association for the Blind which in effect inherited Wright's limited interest in the Lake bed patents. (The Wright homestead in Wilkes-Barre was razed in December 1936.)

Charles T. Barnum died on January 11, 1887. He was survived by three children, Prof. James B. Barnum; Benjamin Franklin Barnum; and Harriet Barnum Faries. The Barnum Estate also had no mention of the Lake patents. The three children by default each inherited a one-third interest in their father's 50 per cent share in the Lake patents.

In January 1888 the heirs of H.B. Wright and C.T. Barnum leased the Lake patents to George R. Wright and Benjamin F. Barnum, two of the children of the original patent holders, to permit them to engage in winter ice-harvesting. Four ice-houses to store ice were built at Alderson. But the business, for unexplained reasons, did not flourish. The ice-harvesting rights were then sub-leased to Albert Lewis, who owned the Alderson sawmill, but this lease was cancelled in late 1893. Theodore Renshaw, a former steamboat operator on the Susquehanna and an Alderson property owner, then harvested ice under the Lake patents but this operation also failed. On February 14, 1910, the uninsured Wright and Barnum ice houses were destroyed in a fire. Until the mid-twentieth century, individual ice-harvesters cut ice on the Lake for personal and commercial purposes without regard to the Lake patents which the patent heirs seemingly abandoned.

In October 1895 the Wright and Barnum estates offered to sell the Lake patents to Judge Henry B. Palmer for $50,000.00 but he declined the offer.

In mid-February 1900 the Wright and Barnum heirs requested an injunction in the Luzerne County court system to restrain the Lake Transit Company's steamboats from dumping coal ashes and human waste into the Lake. The heirs also requested the court to halt the company's use of piers it used as a trespass violation of the heirs claim to the Lake bed.

A few days later, after a hearing in the case Judge G. L. Halsey dismissed the case. The court held that the heirs indeed owned the bed of the Lake as a result of the Wright and Barnum patents, but, too, that the State legislature in 1871 declared the Lake a public highway. The 1871 act essentially granted a public easement to use of the Lake including the right of navigation of steamboat traffic despite private ownership of the underlying bed. This principal was basic ancient common law. The public did not have a right to cross private property to access the Lake, but if access was possible from public access points the public had the right to use the Lake for recreational or other public uses. The Court did not specifically address the steamboat company's construction of piers over the Lake bed.

The Court noted that the dumping of coal ash and filth may be a nuisance and even an illegal use of the public highway. But to seek Court relief private individuals have to demonstrate a special injury or loss, not a general injury shared in common with the larger public. Absent a special injury, the plaintiffs did not have "standing" to file a claim in Court. Frankly, the lack of "standing" argument is a Court-invented dodge to prevent limitless claims for Court redress, with or without merit. It prevents flooding the Courts with claims which do not involve direct injury to claimants. Instead, to abate a public nuisance would require a court action or an administrative proceeding to be filed by a public body, presumably by Lake Township or a State regulatory agency.

For an interesting discussion of public and private legal rights to the Commonwealth's public waters issued by the Pennsylvania Boat and Fish Commission, click HERE.

For decades the Lake patents were forgotten. From time to time, the State's Water and Power Resources Board exercised authority over the Lake. For example, in 1937 the Board and the Lake's Protective Association negotiated a plan which permitted owners of docks or other structures over the Lake bed to register the structures and in effect to lease the Lake bed from the State. The process was designed to protect the interests of the shoreline owners along with detailed maps of their dock interests. It has not been determined how long this plan remained in place.

Three decades later it all changed.

In October 1968 the Pennsylvania Water and Power Resources Board of the Department of Forests and Water, Harrisburg, adopted a resolution imposing a "dock tax" on shoreline owners of Harvey's Lake. The annual tax was based on the size of a dock and was estimated to range from $40 to $450 for Lake docks and boat houses. In January 1969 the Board also established criteria for limitations on new dock construction at the Lake.

Owners of docks and boat houses had general objections to a "dock tax" and regulations which did not apply to other lakes. Until this time, too, dock owners liberally permitted fishermen to use private docks to fish, but increasingly fishermen were dumping litter and beer cans around docks and defacing or damaging docks. Some dock owners expressed support for the dock tax if the Water and Power Resources Board provided enforcement support to protect or lessen abusive use of the docks.

A number of permanent Lake residents who owned docks retained Attys. Joseph V. Kasper and James F. Geddes, Wilkes-Barre, to seek court relief to rescind the tax. On May 19, 1969, the Commonwealth Court, Harrisburg, which had jurisdiction over State agencies, halted enforcement of the dock tax until a full hearing could be held later in the year.

Subsequently, in September 1969, Atty. James F. Geddes shared with the Water and Power Resources Board his research uncovering the long -forgotten Wright and Barnum patents to the Lake bed. He successfully argued to the Board that the Commonwealth did not own the Lake bed and therefore could not tax the dock owners. He was joined in his presentation by Atty. Maurice Cantor, counsel for the Harvey's Lake Protective Association. Geddes had, too, a resolution from the Harvey's Lake Borough Council in support of Geddes' position.

In early August 1970 Geddes reported to the Protective Association that the State was rescinding the "dock tax" and refunding any fees Lake dock owners had paid. The State board still asserted it could regulate dock construction, but would cede this power if either the Borough or the Luzerne County Planning Commission adopted appropriate zoning criteria governing docks and boat houses. The legal action pending before the Commonwealth Court was withdrawn.

Over the years the Lake patents have occasionally been raised as curiosity pieces in newspaper articles, and in litigation by owners of docks and boat houses which have been built over the Lake bed.

Although the Lake bed is still technically owned by the heirs of Wright and Barnum, Luzerne County has never assessed the bed for tax purposes. If the Wright and Barnum estates or known heirs were assessed taxes which then were unpaid, the County could schedule an unpaid tax sale of the Lake bed. But at any stage in this process, even post-tax sale, any unidentified heir could appear to disrupt or set aside a tax sale by claiming the heir(s) did not receive appropriate notice of the tax assessment or of the tax sale.

The late Tom Garrity, a Lake realtor, once suggested the Borough condemn the Lake bed to permit the Borough to acquire and to control the bed. The State or a related agency could also condemn the bed to revert ownership to the Commonwealth. These proposals likely require a search to identify the existing heirs of Wright and Barnum, and the offer of just compensation to the heirs for the Lake bed, or Court action to resolve the compensation issue with the heirs.

Typically, lakeside deeds run to the "low-water" mark of the Lake. This mark has apparently never been officially defined and is complicated by the Lake's outlet dam. Some deeds have property lines which run out to a point in the Lake bed, and may conflict with the Lake patents.

Owners of docks and boat houses which may encroach on the patented bed can file an "adverse possession" claim in court. These claims would permit the dock owners to obtain legal title to the underlying bed if they and previous owners had continuous and exclusive use of the bed at issue for more than 21 years.

In a few instances, dock owners acquired a "quit-claim deed" from the local blind association which holds George R. Wright's limited patent interest in the Lake bed. The quit-claim deed gives the dock-owner a quasi-legal "color of interest" to the dock's bed. This practice drew the blind association into litigation between conflicting dock interests, and the association is no longer issuing quit-claim deeds as the heir of the G. R. Wright Estate.