Court rules for paddlers

Brandreth Park’s attorney says appellate decision in favor of Adirondack Explorer threatens private-property rights.

By Kenneth Aaron

The Brandreth Park Association and Friends of Thayer Lake contend that a recent court decision upholding the right of canoeists and kayakers to paddle through their remote Adirondack parcel threatens to upend private-property rights in New York State.

In January, the Appellate Division of State Supreme Court voted 3-2 to uphold the dismissal of a trespassing lawsuit against Adirondack Explorer Editor Phil Brown, who canoed through their land in May 2009 and later described the trip in an article about public navigation rights.

“This decision could permanently extinguish our right to manage access and impact to an important part of our land, which had been respected by both the State of New York, and the general public, from 1851 until 2010,” the two groups said in a joint statement. “The notion that any route a canoe can be floated, dragged, and carried over may now be considered a public highway should disturb anyone concerned about private property rights, the spread of invasive species, or the welfare of nesting waterfowl and other vulnerable wildlife.”

Their attorney, Dennis Phillips, said he would file a notice of appeal with the state’s highest court, the Court of Appeals. Such a notice preserves the option of appealing. Once a notice is filed, a party typically has a few months to submit an appellate brief to the court.

“We will be carefully reviewing this decision and considering our options,” the landowners said in their statement.

At issue is a two-mile stretch of water—Mud Pond, Mud Pond’s outlet, and part of Shingle Shanty Brook—that connects two tracts of state land in the William C. Whitney Wilderness and is part of a longer waterway originating in the headwaters of the Beaver River. The land it flows through is owned by the Friends of Thayer Lake, but the Brandreth Park Association owns the parcel’s recreational rights.

In the Appellate Division decision, which upheld a lower court’s ruling, the majority found that the waterway “has the capacity to provide practical utility to the public for both trade and travel” and therefore is “navigable-in-fact,” a legal term applied to waterways that are open to the public for navigation.

“We’re thrilled and gratified that the Appellate Division agreed that Phil Brown did not commit trespass because he and the general public have the right to canoe through this waterway,” said Tom Woodman, the Explorer’s publisher. “We believe that this decision will influence courts across the state and strengthen the right of the general public to have access to rivers that for some stretch pass through private lands. These are fundamentally public thoroughfares and are available to all.”

While paddlers’ rights in New York State are rooted in centuries of common law, questions of public access can still lead to lengthy disputes. In Brown’s case, both sides agree on the essential facts.

On a Saturday in late May, Brown embarked on a two-day canoe trek from Little Tupper Lake to Lake Lila, most of it through public Forest Preserve. “Ordinarily,” he wrote afterward, “the trip requires four long carries, but I did it in just three.”

It was the carry he didn’t make that led to the trespassing suit.

Instead of lugging his canoe along a three-quarter-mile carry trail that avoids the private property, Brown passed by no-trespassing signs and paddled down the waterway in question.

The owners sued in 2010. The state Department of Environmental Conservation, joining the suit on Brown’s side, contended that the Mud Pond Waterway, as it came to be known in court papers, is navigable-in-fact. The state upholds the common-law right of navigation as a public trust.

Phillips argued in court that the stream is so slight that it can’t accommodate any craft larger than a canoe and is so far off the beaten path that it is of no use for commerce—which, he asserted, is a prerequisite if a waterway is to be open to the public.

John Caffry, Brown’s attorney, argued that a waterway’s usefulness for travel, including recreational travel, is sufficient to trigger the common-law right of public navigation. Yet he also contended that the testimony of one of the landowners, the late Donald Potter, established that the waterway has the capacity for and a history of commercial use. In a deposition, Potter said he and others used the waterway to transport building materials and furs, among other goods.

Assistant State Attorney General Philip Bein made the same point during oral arguments in October: Potter’s deposition demonstrated that the waterway was a useful route not just in theory, but in fact. And while Phillips held that the presence of a state-maintained carry trail should preclude public access to the stream, Bein countered that the trail had no bearing on whether the waterway is navigable-in-fact.

The majority decision cited Potter’s testimony as proof of the route’s usefulness. “The landowners’ longstanding use of the Waterway to transport goods and materials for private use reveals that it has the capacity to transport similar goods for commercial purposes,” wrote Justice Elizabeth Garry.

In a footnote, though, the three judges acknowledged an unease with opening a route that was private for more than a century—that is, until the state bought land at both ends of the waterway, affording public access. In cases such as this, Garry wrote, the application of the common law “may destabilize long-established expectations as to the nature of private ownership.”

The two dissenting justices also expressed concern about property rights. Justice Robert Rose wrote that allowing the public to use Mud Pond Waterway would “unnecessarily expand our navigability-in-fact doctrine and destabilize settled expectations of private property ownership by opening up remote, unpopulated, privately owned bodies of water as long as the public has some way, however arduous and recently acquired, of gaining access to them.”

In their statement, the Brandreth Park Association and Friends of Thayer Lake drew attention to the judges’ reservations. “Yet, despite these reservations, the majority went ahead and designated a marshy pond, footpath, and a stream too narrow for rowboats a public highway,” they said.

Caffry said that even if the property owners had come to think of the route as theirs alone after having it to themselves for generations, it wasn’t. “I think that’s a misreading of the law, because I think the test is based on the physical characteristics of the waterway,” Caffry said. “Property gets bought and sold all the time. To say that navigability depends on ownership is not consistent with the basic doctrine of the public trust, which is the background” for navigability-in-fact.

John Humbach, a law professor at Pace University who has written on navigation rights, said the majority’s decision did not break new legal ground, but he would welcome a Court of Appeals ruling that clarified the stability of property rights.

The dissenting opinion, however, did contain a novel argument: that the Mud Pond Waterway’s remoteness should be considered when determining whether it’s navigable-in-fact. Humbach said that’s a departure from previous cases, but that doesn’t mean judges are prohibited from taking into account a waterway’s remoteness.

Caffry dismissed the remoteness question as having no relevance. “It’s never been an issue before in any of these cases that I’ve seen, and I’ve read pretty much every case on the subject since New York became a state,” he said. In fact, for recreational paddlers, he added, being off the beaten path makes a route more—not less—attractive.

Caffry is hopeful that the ruling, if upheld, will dissuade other property owners from trying to block paddlers from routes that should be open.

Yet it’s unlikely to end disputes over public access. “Every waterway presents its own facts,” Humbach said. “So whether a stream is navigable-in-fact is a question of fact. So there will be other streams, with other individual characteristics, so there may be other disputes.”