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Adirondack landowners appeal ruling on water access

Tuesday, February 11, 2014
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— Allowing recreational canoeists to traverse waterways and tributaries running through private lands will dramatically erode the constitutional rights of property owners, according to an appeal filed against a 2013 ruling. That ruling favored a magazine editor who paddled his way through private property in the Adirondacks several years ago.

Dennis Phillips, an attorney representing Friends of Thayer Lake LLC and Brandreth Park Association, argues that state Supreme Court Judge Richard Aulisi did a good job defining the ability of a canoe to carry things, but didn’t make a compelling enough case to erode the rights a property owners. In the 69-page appeal, he argues Aulisi’s ruling in favor of Adirondack Explorer editor Phil Brown last year supports a challenge to property rights being waged by fellow paddlers across the state, which has already gained the sympathy of the state Department of Environmental Conservation.

“The ‘cause’ is a radical notion — the idea that personal pleasure and recreation trump historical property rights on a grand scale — the notion that if a canoe or kayak is involved and accessible water flows through private land, the private land is impressed with a recreational navigation easement for the benefit of individual canoers and the state,” Phillips stated in the appeal filed with the Appellate Division of the state Supreme Court on Jan. 24.

“If the ‘cause’ prevails in this case, the landowners of the state could suffer actual physical invasion of their property by unknown canoers, thus losing the constitutional right to exclude, ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’ ”

Brown crossed through private property with posted no-trespassing signs during a 2009 canoe trip between Little Tupper Lake and Lake Lila. In his story, “Testing the Legal Waters,” the editor later wrote how he avoided a state-built portage and went through private property using a 20-pound canoe on various small waterways in Hamilton County, including Mud Pond, the Mud Pond Outlet and a portion of Shingle Shanty Brook.

The property owners filed a lawsuit against the Adirondack Explorer on the basis that Brown had trespassed when he disregarded posted signs and warnings.

But Aulisi ruled that Brown had a right to travel across the property on the water, declaring the waterway in question was “navigable in fact,” meaning it is open to travelers under the established common law principle of right of navigation.

Aulisi’s ruling only allows travelers to navigate through a private property when necessary and doesn’t extend to activities like fishing or camping. If the ruling stands, it could allow more people to take advantage of the right to travel across private waterways to reach public waters for recreational purposes, when traditionally this right was only accepted for commercial interests, like logging.

The state Department of Environmental Conservation weighed in on the case in 2010 and declared the waterway was subject to an easement for public navigation. The state Attorney General’s Office maintained the public had a right to traverse the waterway.

Brown couldn’t immediately be reached for comment. The publisher of his magazine has previously said he feels comfortable that Aulisi’s ruling will stand.

In his appeal, Phillips argues the ruling simply made it clear that canoes can carry goods and can be used for recreation. He claims the ruling doesn’t clearly justify using waterways for recreational purposes.

“The finding by the court below that the water had the capacity to carry furs, goods and supplies was nothing more than a finding that canoes can carry things and nothing more than a finding that canoes are used for recreations of hunting, fishing, trapping and carrying things in and out of a recreational hunting camp,” he stated in the appeal. “But this is not commercial transport; this is recreation pure and simple.”

 
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