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Judge upholds right to paddle through private lands

February 27, 2013
By MIKE LYNCH - Outdoors Writer (mlynch@adirondackdailyenterprise.com) , Adirondack Daily Enterprise

A state Supreme Court judge has found that Adirondack Explorer magazine Editor Phil Brown had the right to paddle on waterways that run through private property in northwest Hamilton County, and that the waters should be open to the public.

Brown, a Saranac Lake resident, was in court because the Brandreth Park Association and Friends of Thayer Lake had sued him for trespassing after he paddled on waters surrounded by their lands.

The case stems from May 2009, when Brown paddled Mud Pond and Shingle Shanty Brook as part of a multi-day trip from Little Tupper Lake to Lake Lila, which are connected by a series of streams, ponds and canoe carries. Most of the trip is in the state-owned William C. Whitney Wilderness, and there is a canoe carry on state land around the waters in question, if people choose not to paddle Mud Pond and the upper reaches of the Shingle Shanty Brook.

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Phil Brown paddles on Shingle Shanty Brook near the Mud Pond outlet in May 2009.
(Photo — Susan Bibeau, Adirondack Explorer)

The lawsuit was filed in November 2010 after Brown wrote about his experiences in the Explorer. His writings attracted other paddlers to the property and drew criticism from the landowners.

State Supreme Court Justice Richard T. Aulisi ruled that Brown had the right to paddle the waters because they were "navigable in fact." The landowners have been told they must take down any "no trespassing" signs that pertain to the waters. However, they are free to post and prosecute trespassers who fish there or enter other parts of their property.

"I thought we felt we had a very strong case," said Brown's attorney, John Caffry of Glens Falls. "It wasn't a huge surprise, but you can never be sure, so we were pleased that the judge agreed with us and the state on this one."

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After pursuing the issue through articles, Brown was later backed by the state Department of Environmental Conservation, which ordered the landowners to take down cables across the waterways. When the case went to court, the attorney general's office took Brown's side as one of three involved parties.

Caffry's defense was based on the Moose River case in 1998 that eventually opened up a 12-mile stretch of the South Branch of the Moose River, located in the southwestern Adirondacks, to paddlers. He was also an attorney for the paddlers in that case. He said waterways that are navigable in fact have been considered open to the public for hundreds, or even, thousands of years.

Waterways are navigable in fact if they have a capacity to withstand use, Caffry told the Enterprise in November. He said that can be proven by commercial means, such as log driving, or recreational means, such as paddling.

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"It's part of New York law based on the English common law ... and goes back to the Roman law - the idea that the waterways are open to the public," Caffry said. "There was certainly a time when roads were few and far between and rivers were the main source, or route, of transportation. Now they aren't as necessary for that purpose, but they still remain open to the public, and when the state sells the land underlying the river, it still retains the right of navigation on behalf of the public."

In this case, the waters were proved navigable not only for Brown, but by the fact that they have been travelled on them as far back as the 19th century, when guidebook writer E.R. Wallace used them. The private landowners have also paddled them, and so have other members of the public who apparently followed Brown's lead.

Both Tom Woodman, publisher of the Explorer, and Brown said they felt relieved to win the lawsuit, although both said they are still waiting to find out if the plaintiffs will appeal the decision. A phone call on Wednesday afternoon to Glens Falls attorney Dennis Phillips, who represents the plaintiffs, was not returned by press time this morning.

"We felt that, not only for the good of the Explorer but for paddlers' rights generally, that we needed to win this case," Woodman said. "So we're very happy the judge agreed with us."

"I'm thrilled," Brown said. "I think it's a victory for paddlers. ... It reaffirms that paddlers do have the right to travel through private lands on navigable waters, so any paddler in a similar situation could cite this case."

Leading up to the judge's decision, none of the parties disputed the fact that the waterways were navigable in the general sense of the word. What they disagree about is the legal definition of the term "navigable in fact." How this was interpreted by the judge ultimately decided the outcome of the case.

Phillips said a waterway must have a history of commercial use to meet the legal definition, but the judge ruled against him. Phillips said there was no commercial use of these waterways, in part because they are too small and couldn't support those types of activities.

Brown's original article about his May 2009 trip was one of several the Explorer wrote about the issue of navigability. None of the others led to a lawsuit.

"I didn't set out to get sued," Brown said. "I set out to write a story, and essentially I was doing what reporters do. I was collecting facts. Obviously, I thought I had the right to use these waterways, so I simply wanted to exercise that right and write about what I saw."

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Contact Mike Lynch at 891-2600 ext. 28 or mlynch@adirondackdailyenterprise.com.

 
 

 

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