Free, but limited, passage for paddlers
Some people just don’t give up, and that’s certainly true of some sportsmen's club owners in the Adirondacks who want to keep canoeists from traversing their property, in or out of a canoe. Last month their lawyers filed an appeal of a 2013 state Supreme Court decision that came down clearly on paddlers’ side and seemed to settle the matter once and for all. But while we hope and expect their appeal will be fruitless, that doesn’t mean we’re totally unsympathetic to the owners.
The appeal is based on the argument that the only issue the court really clarified was what canoes are capable of carrying. But this and earlier decisions, including one by the Court of Appeals (the state’s highest court) in 1998, also found there is a common-law right of way when people use navigable waters not just for commerce, but for travel, transportation and recreation. In that sense, they are like highways or sidewalks that cross private property, with an easement for the greater public good.
While we welcomed those court decisions at the time, we also recognized that the owners’ property rights were being curtailed, and this should not be done lightly or carelessly. The owners deserve to know the encroachment will be the minimum possible, and their own liability will be limited. The way to do that is for the state Legislature to put the right of passage and related issues into a statute.
Regarding liability, we believe that only in cases of gross negligence should property owners be held liable if a canoiest is injured while portaging his boat across their land. The Legislature has had such a bill before it various times in the last 25 years, but failed to act, leaving it to the courts to settle the trespass issue first. But that issue has now been settled.
The Legislature should also make it clear that paddlers should just be passing through — i.e. they have no right to camp, picnic, fish or otherwise remain on the property for an extended time. Nor can they use it to launch their boat. This should also ease liability concerns by making accidents less likely.
Finally, the Legislature should require the state Department of Environmental Conservation to determine which waterways are “navigable in fact,” the court’s standard for public use, and create a list so paddlers and property owners each know where they stand.
Canoeists have a right of access, but it needs to be limited — not just by courts but by law.