Comments on: Is it freedom of the rivers or trampled property rights?

By: redhawk

redhawk — Mon, 22 Nov 2010 18:29:17 +0000

On the liability issue. If I am not mistaken under "Navigable in fact" a property owner is not liable for any accident that occurs on the land unless the landowner has put some kind of obstruction that has caused the accident.

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By: Dave12942

Dave12942 — Sun, 15 Aug 2010 19:42:15 +0000

I believe that the public can paddle down almost any stream in a boat or ven and inner tube. They can portage around dangerous areas using the shortest route possible. But that is it….no fishing, no swimming, no hanging around for any reason…simply transiting the river thru the area, not landing anywhere of doing anything else.

Another issue for some owners is that the law (901-3) about posting and trespassing and such exempts landowners from liability for many recreational activities but NOT swimming. Which is why you see more and more privately owned swimming areas closed to the public. This should simply be fixed by adding liability potection form swimming.

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By: Wilson

Wilson — Mon, 09 Aug 2010 20:32:38 +0000

I believe this issue is far more complicated than were are being led to believe.

What the ALC ruling did was use the historical commercial use test of a waterway to determine Navigability-in-Fact. Was the public good served by moving goods or crops to market? The Moose River had a long history in the early part of the last century of being used to float cut timber to market. As such this river was ruled by the court to be NIF.

While some people may might think that commercial recreation (I.E did the landowner have a history of offering guided trips to a paying public?) might be a logical extension to the historic commercial use test, it is not at all clear to me that such a commercial use test would pass for all the other streams requiring a portage on private land.

Please read the details on the ALC case and the extensive court discussion of historical records of commercial use. Google has the entire text of the court ruling.

http://scholar.google.com/scholar_case?case=4695612960709650917

The question to ask here is: Has this contested waterway been used historically in such a way to pass that "goods to market" test or even a recreational "paid guided trip" commercial use test?

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By: Josh

Josh — Wed, 04 Aug 2010 15:44:07 +0000

There's a lot of talk here about liability. If Mr. Potter and Brandreth Park Assoc. truly believe that they can be sued for allowing the public to use their property for canoeing, they are sadly mistaken. You can follow the link below to read the full text of the NYS Recreation Use Statute:

http://www.americanwhitewater.org/resources/repository/New_York_Recreational_Use_Statute.htm

To summarize, NYS Law states that owners of private property has no obligation to keep that property safe for use by the general public as long as they are not charging a fee for access to said property. The law states, specifically:

"an owner….of premises, whether or not posted…owes no duty to keep the premises safe for entry or use by others for hunting, fishing….canoeing, boating, trapping, hiking…..motorized vehicle operation for recreational purposes…., or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;

b. an owner, lessee or occupant of premises who gives permission to another to pursue any such activities upon such premises does not thereby

(1) extend any assurance that the premises are safe for such purpose, or

(2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or

(3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

It can't be more clear…

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By: Paul

Paul — Mon, 02 Aug 2010 17:57:16 +0000

Phil,

I think that you are missing the point of the Moose River decision. You and others are focusing on that part that you want and not the rest. If these two measures (accessibility and navigability) are met a river is still not necessarily NIF. So, again to answer the question, you have to look at the whole picture. Does this water body meet the "practicality" standard as a "highway for trade or transport"? If the only measures were "legal accessibility" and "navigability with a canoe" than almost every large puddle that touches public land would qualify as NIF. You can't be arguing that are you? I am sure you would like that but I really doubt that the common law was devised to cover that kind of thing. Phil, if you don't think that what I am saying makes sense then tell me why, when the moose was clearly navigable and accessible, didn't the court make a quick decision and and give summary judgment to the defendants in the case.

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By: Phil

Phil — Fri, 30 Jul 2010 13:27:53 +0000

Paul, you still have not answered my question. You insist that a river could be navigable but not NIF. Let's assume that the river is navigable in its natural state and is legally accessible. What possible reasons can you offer for saying it's not NIF? I have not seen one.

Shingle Shanty flows into Lake Lila. No dam there.

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By: Paul

Paul — Fri, 30 Jul 2010 02:02:34 +0000

Phil, I answered the question look above here is the answer again:

"The water body does not have sufficient flow in it's natural state to allow for travel or transport. "

This was an issue that the court found reasonable to consider.

The answer is quite simple you just don't like the answer. If you cannot determine with some certainty what the natural levels would be you can't make a determination of NIF. The bottom line in my opinion is that the "common law" is not sufficient for your purpose.

Shingle Shanty isn't affected by dams along it's course or the lakes that it flows in and out of? Are the lakes at both ends controlled by dams? That could greatly affect its natural levels. I don't know if this common law was well designed for these smaller streams. For another example I am not sure what much of the Saranac River would look like without all it's dams. Even if Shingle Shanty is NIF based on the common law that does not mean the other 55 water bodies on the list would qualify.

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By: Phil

Phil — Thu, 29 Jul 2010 21:17:33 +0000

Paul, you are avoiding my question.

I know of no dams on Shingle Shanty.

Many of our lakes have been raised by dams and these dams may affect navigability of some rivers. What do you suggest we do? Knock them all down and see which rivers are navigable? If not, what is the solution? It's no simple.

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By: Paul

Paul — Thu, 29 Jul 2010 20:32:50 +0000

I assume the common law was designed this way so that someone could not take a brook or some very slow and shallow river and put in a whole series of dams and say, "there see its navigable, so its NIF"!

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By: Paul

Paul — Thu, 29 Jul 2010 20:29:22 +0000

Phil,

The law measures the river in its "natural state". There is no way to get around that. If the river does not have sufficient flow in its natural state then no easement may exist. That was was a question for the trial court on the moose and a question for you on some of these other rivers. A river that is navigable with the dams may not be navigable without them and therefore may not be NIF, it is pretty simple. Are there any dams that are involved with the control of the level of Shingle Shanty Brook? Is it's NIF (or even its navigability) being measured in its "natural state" as required by the common law?

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By: Phil

Phil — Thu, 29 Jul 2010 20:19:57 +0000

Paul, if a river doesn't have sufficient water for travel, then it is not navigable. I am asking you to provide a reason for declaring that a navigable river (if legally accessible) is not navigable in fact?

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By: Paul

Paul — Thu, 29 Jul 2010 18:59:57 +0000

A little more. The court has ruled that recreational boating can be one measure of NIF, and they have said that the need to carry around obstacles and rapids does not negate this measure. Let's look at a river like the East Branch of the St. Regis river. Let's take out all the dams along its course and the rivers that it mixes with. I know sections of that river that might basically run dry for most of the year if the dams were gone. It might only have a sufficient flow in the spring for a short period of time or at times of unusually high water. That would mean that this river is navigable for short portions of the year and NOT navigable-in-fact, and therefore not encumbered by the easement that was created by the common law. In its "natural state and ordinary flow of water" this river and many other water bodies in the Adirondacks may be not NIF, and in turn are not subject to the easement, and are therefore the private property off the owners, water and all. Phil are there any dams that could affect the flow of Shingle Shanty Brook I don't really know that one too well.

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By: Paul

Paul — Thu, 29 Jul 2010 18:31:24 +0000

Sure, for the same reason the court felt that it was possible that the South Branch of the Moose River might not be NIF. The water body does not have sufficient flow in it's natural state to allow for travel or transport.

You keep saying here, and in other places, that a river that is navigable is navigable-in-fact. And you keep doing it without any evidence that this might be true. To keep using the Moose as an example, there was clearly a question as to whether or not that stretch of river was NIF. Phil, you can't deny that right? In my opinion since that river (clearly larger and deeper than something like a brook, or some of these other water bodies that were on the list) was questionable it seems to me that "common sense" would also tell you that the NIF question on these other waterways is also in question.

Getting back to your question. "In most cases, a river that is navigable is NIF." Since you seem to understand that there are some "cases" where a navigable river is not NIF than you must already have an answer to the question yourself.

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By: Phil

Phil — Thu, 29 Jul 2010 16:40:23 +0000

Paul, as stated earlier, the court decided it couldn't determine, based on the documents before it, how much of the year the South Branch is ordinarily navigable. This was a factual question in dispute and had not been tried. So the court remanded the case to the trial court. In most cases, a river that is navigable is NIF. That's what the experts have told me. And in most cases, this is, or should be, a common-sense judgment. Can you give me a reason why a river that is navigable and legally accessible should not be NIF?

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By: Paul

Paul — Thu, 29 Jul 2010 14:58:00 +0000

Or let me put it this way. The court with reams of documents regarding the history, nature, and uses of the river were unable to make a determination of whether the river was navigable-in-fact. Yet some here are prepared, with only the evidence that they can float down a particular body of water, that it is NIF and covered by this common law? How can this be?

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By: Paul

Paul — Thu, 29 Jul 2010 14:35:37 +0000

Phil, from your comments it appears that you understand that there was no determination of NIF and that more than ONLY the "measure" of recreational paddling is required for a determination. With that how can you continue to argue that as long as a river is navigable by a canoe that you can probably be safe and consider it NIF, and covered under the common law???

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By: Bret4207

Bret4207 — Thu, 29 Jul 2010 00:25:03 +0000

I think Ken Tucker has hit the nail on the head. We don't really own this property, we're just passing through. It's up to us to provide a way for the rest of humanity to enjoy our property we bought, pay taxes on and are trying to turn into our dream. What was I thinking?

Yes, I'm being facetious. That post shows a decided lack of reality and respect for the concept of private property rights in the first place. I won;t say more, it would just get edited.

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By: Phil

Phil — Wed, 28 Jul 2010 19:34:46 +0000

Paul, I can't keep up with you. My prior comment refers to your 2:56 post. Please note that the court says transport allowed under the common law is not limited to commercial use, that it can include some recreational uses–meaning paddling.

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By: Phil

Phil — Wed, 28 Jul 2010 19:30:01 +0000

Paul, your comment in your last post is incorrect. The Court of Appeals, unlike the Appellate Division, did not think the facts were sufficient to determine, without a trial, that the South Branch was navigable by kayaks and canoes. That's why the judges remanded the matter to the trial court. They said the facts before it were insufficient to determine how long the river is navigable. If the river were navigable for, say, only a week or only after a heavy deluge, a court might decide it's not NIF (speculation on my part). Also, there was still a dispute over whether logs were floated down the river in its natural state or were aided by dams. Presumably, this question would bear on the navigability of the river. If logs were floated down the river in its natural state, that would be strong, perhaps conclusive, evidence for the navigability of the river. If dams were needed, then paddlers would have a tougher case to prove navigability.

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By: Paul

Paul — Wed, 28 Jul 2010 19:29:17 +0000

Sorry for all this but I think this helps people understand the issue, again from the courts decision:

" Even if recreational use can be considered in addition to commercial use, a conclusion we now endorse, ALC nonetheless argues that questions of fact persist regarding the South Branch's capacity for such uses. Although the question of navigability can in some circumstances be decided as a matter of law ( see, e.g., Morgan v King, supra), on the record before us we agree with ALC that the remedy of summary judgment is inappropriate ( see, Andre v Pomeroy, 35 NY2d 361, 364).

In reaching this conclusion, we do not rely on the fact that both sides reach different conclusions on the ultimate question of navigability. Navigability turns on evidence of actual practical use or evidence of capacity for practical use. There may be experts in geology, hydrology, economics, fluvial geomorphology, [n.1] and even expert canoers and river guides among others, who can provide evidence of actual use or evidence of theriver's capacity, but the ultimate conclusion –– navigability in fact –– in this case, is for the trier of fact based on the evidence."

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