Is it freedom of the rivers or trampled property rights?

Crossing lines in the Adirondacks. Brian Mann paddles past a No Trespassing sign to report on paddling and property rights in the North Country.

Last week, I did something I very rarely do:  I consciously crossed a visible line in a river and an invisible line in my approach to reporting on the battle over river rights in the Adirondacks.

Let me explain.

The owners of a big chunk of private land in the Adirondacks, the Brandreth Park Association, have posted as private two chunks of water, Mud Pond and a stretch of Shingle Shanty Brook.

They’ve strung a cable across the river — that’s the visible line.

Their signs threaten legal action against any canoers and kayakers who paddle through and make use of a short portage trail that connects these remote bodies of water.

The landowners have even rigged automatic cameras to photograph anyone passing through the area without their permission.

A lot of paddlers and independent legal experts think those restrictions and warnings are powerless.

State law, and a landmark 1989 appeals court decision, known as the Adirondack League Club case, seem to indicate that the vast majority of navigable rivers and streams in New York are open to public traffic.

“If…a river is navigable in fact,” found New York’s highest court, “it is considered a public highway, notwithstanding the fact that its banks and bed are in private hands.”

That same decision concluded that “recreational use fits within” the spectrum of recognized and acceptable activities on those rivers.

While still controversial, the decision is seen as definitive even by a lot of people who are deeply uncomfortable with the idea of paddlers crossing through private land.

“I understand [private landowners] desire not to have paddlers on their land,” says Ross Whaley, with the Adirondack Landowners Association.  “However, the law has spoken and [the landowners] may not have a choice.”

Here’s what Whaley said in an interview with NCPR:

“It seems that the case law over time has made it clear that navigable-in-fact streams can be navigated by paddlers.  This stems from English common law, which was the law of the state of New York prior to any legislative law…The courts said that recreational passage is allowed under the common law.”

That view is shared by John McDonald, head of the Ausable Chasm Company and a former attorney for the Adirondack Local Government Review Board, a champion of private property rights in the Park.

“Legally, they do have a right to go through the river,” McDonald says, pointing out that the courts also confirmed the right of paddlers to portage, to scout the river, and to carry boats and equipment across private land.

Some private landowners — including Judson Potter, head of the Brandreth Park Association — disagree passionately with this interpretation.

In a lengthy conversation with NCPR, Potter insisted that the Adirondack League Club decision, when coupled with other New York case law, is far murkier than others believe.

He’s convinced that the unique characteristics of Shingle Shanty Brook should exempt it from the common law access provided on most of New York’s navigable rivers.

“It’s a very important part of my family’s history,” Potter says. “And we very actively and regularly use the area.  We don’t every want to be in a situation where there’s a potential conflict between our family members and members of the public who are going through the area.”

Normally as a journalist I try to play it right down the middle:  I report what both sides say, include as many facts as possible, and let you the audience decide.

But in this case to get at the story accurately, I decided that I had to cross that second line, the invisible one.

I had to decide whether the law gave me (and NCPR) access to Shingle Shanty Brook without first gaining permission from the landowner.

After talking with legal experts and reading the case law carefully, we decided that on balance the issue seems fairly clear:

If a river in New York is navigable and we have a good reason to use it (recreation, journalism, trade, or whatever) we have a right to use it.

That said, it’s always a nervous business when a journalist moves beyond pure neutrality, even in cases like this where the facts seem reasonably plain to most observers.

So what do  you think?

Did NCPR report the facts accurately?  Did we do the right thing by paddling that river — and portaging briefly over private land — to get the story?

Or did we show a bias and trample a landowner’s property rights?

Your comments are welcome below.

103 Comments on “Is it freedom of the rivers or trampled property rights?”

  1. Brian Mann says:

    Solidago –

    1. No, I haven’t interviewed DEC about this matter.

    2. Actually, the legal case law — including the Adirondack League Club decision — does specifically mention river guides and it acknowledges the economic importance of recreation.

    3. I agree that there are moral and common sense dimensions to how we all interact with other people’s property.

    But there is also a specific legal dimension. In this case, for a variety of reasons, the courts have found that traditional or common law rights of river access continue into modern times, with recreation now being one of the uses that “fit within” the acceptable range of uses.

    –Brian, NCPR

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  2. anon says:

    Mervel is both poking and jot stirring.

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  3. Phil says:

    Brian asked why DEC abandoned its effort to prepare a list of waterways deemed navigable in fact. The effort was put on hold after the Adirondack League Club filed suit against the Sierra Club paddlers. DEC wanted to see what happened with the case. But it dragged on for eight years. By the time, it was settled we had a new governor, new faces in DEC, and new priorities. You can read more about this history here:

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  4. Phil says:

    Solidago, we have argued this point elsewhere, so I don’t expect I’ll change your mind. We both agree that “navigable” and “navigable-in-fact” are not synonymous. However, my contention is that in most cases they are, if we are talking about legally accessible waterways. Your position seems to be that for a waterway to be NIF it must be capable of transporting large quantities of nineteenth-century goods. That flies in the face of the Court of Appeals decision, which recognized that recreational paddling is by far the more common use of rivers these days. Your test belongs to a bygone era, if it was ever the test. Have you ever thought about the origin of the curious phrase “navigable in fact”? As I understand, it was used to distinguish navigable inland waterways from tidal waterways. The latter were called “navigable in law” and were open to the public. The public was also granted the right to use inland waterways that were, in fact, navigable. Simple as that. So “navigable” and “navigable-in-fact” are not far apart in meaning, though the law does make distinctions for special circumstances.

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  5. DownChild says:

    What About Pollution, Litter, Property Damage, Thief, Etc By Portage Folks?
    All Kinds Of Abuse Of Portage Over Private Land Can And Will Happen. Suppose You Have A 2 Party “Navigation Event” One Being A Large Boat
    With A ATV On Board And This Boat Is Equipped For Land Skidding. The
    Second Being A Jet Ski. The Party Reaches Land, The ATV Is Off Loaded
    And Skids The Boat Across Private Land To The New Launch Site. Then
    The ATV Skids The Jet Ski To The Same Site. The ATV Is Loaded On The
    “Mother Boat” And They Are Off To Their Destination. Sounds “Off-Wall”;
    But All Kinds Situations Like This Will Happen! Rules Of Engagement For
    Portage Will Be Required Or There Will Be Chaos.

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  6. Bill says:

    Lets face it some people are simply not happy with the 3.1 million acres already under control by the state either by ownership or easement, they want more, more, more.

    These people also loathe the idea of private ownership in the Adirondacks as well, they want to go where their hearts desires and if the land is posted well that means an act of civil disobedience is called for. This of course is done simply out of general principals.
    Here’s a news flash….the 60s are over it is now 2010.

    Once the public is allowed to cross a private parcel the area will soon become trashed because people are incapable of respecting anything that does not directly belong to them. Then there is the fact that if someone is injured while trespassing the land owner is held liable, not the trespasser.

    I will always side with the rights of the land owner and some of you are going to have to resign yourselves to the fact that there is private land in the Adirondacks that you are not allowed to travel upon.

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  7. Marc says:

    Solidago asks “So why is it that ‘river navigation rights established by the courts in New York state under common law are very different than other kinds of private-property access laws'”?

    Perhaps it’s simply because rivers are very different than other routes. You can’t put a river wherever you like. Roads don’t ebb and flow with tides and seasons. Rivers were natural corridors long before roads were developed. That’s why English common law created rights of passage on them– passage for people, not just goods. And those English common laws became the basis for the New York State law.

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  8. wilmasboy says:

    Yes…you did step over the line of impartial journalism!!! Private property is just that…private. Public access to private waters can only lead to more problems for the landowners and the public….accidents, injury, invasive plants, tresspaasing on adjacent lands, damage to the environment, game law violations and more…The State of New York takes no responsiblity in this matter…just let the public go where they want without any controls or rules. The private landowners will bear all the downside and then have to deal with helping the general public when they get in trouble while on private waters. As for tha ALC case…there was no decision!! It was settled out of court. I think your intrusion onto someone’s posted lands is a criminal act and you should be prosecuted for tresspass.

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  9. Solidago says:

    Brian, in your piece on the radio you stated that landowners can “no longer restrict access to navigable rivers” – which completely misrepresents the law and gives listeners the mistaken impression that you can go where ever your boat takes you. Instead of “navigable” you should have made it clear that landowners can not restrict access to “navigable-in-fact” waterways… and then you should have made an effort to explain what exactly NIF means.

    As made clear by the settlement arrived at in the ALC-Sierra Club case, which prohibits access even at times when the waterway is navigable, and Hanigan v State – – just because a waterway is navigable, it doesn’t mean you have the legal right to use it.

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  10. Paul says:

    “Given that the landowners may be presumed to be rather well-connected politically, perhaps it has to do with the owners not _wanting_ the paddler’s to be ticketed.”

    Marc, it is my understanding that the reason they are not being ticketed is that the DEC has advised their law enforcement personnel not to ticket paddlers in these cases. I seriously doubt that the owners who are posting their waterways are asking that the DEC ignore the posting?? If someone has more information on this perhaps they can comment. Given that I would have to say that the “well-connected politically” are the paddlers and not the owners. Like I said earlier the DEC was a CO-DEFENDANT with the Sierra Club in the Moose River case AGAINST the Adirondack League Club. What makes you think that the state is somehow siding with property owners? The facts point to the opposite conclusion.

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  11. Paul says:

    “That flies in the face of the Court of Appeals decision, which recognized that recreational paddling is by far the more common use of rivers these days.”

    Phil if this were the case please explain why the court specifically said that recreational boating is NOT THE ONLY measure of navigability in fact. And why did the court throw the case back to the lower court for a trial that never happened?

    If everyone’s contention here is correct and recreational boating is the ONLY measure of navigability in fact why are we even having this discussion? I can only come to one conclusion based on what was in the decision. That it takes more that having a waterway canoe-able to make it navigable-in-fact, and hence to have the common law apply.

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  12. Paul says:

    “That flies in the face of the Court of Appeals decision, which recognized that recreational paddling is by far the more common use of rivers these days.”

    Also, Phil it may be a more common use of Shingle Shanty Brook but have you ever been on the Lower Hudson River or the St. Lawrence Seaway lately?

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  13. Phil says:

    Paul, I am not disputing that there are circumstances when a navigable waterway is not open tothe public. For one, it has to be legally accessible. Also, the Hanigan decision apparently rules out “keyhole ponds” that are completely surrounded by private land. The dispute on this thread boils down to this: how much overlap is there between “navigable” and “navigable in fact”? I think common sense and our common-law heritage suggest navigable=navigable-in-fact more often than not.

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  14. Paul says:


    Given the case was looking at the South Branch of the Moose River why do you suppose that the court appeared unable to rule that this particular stretch of river was Navigable-in-fact and decided to throw that decision back to the lower court? It is clearly Navigable for some craft. If this court was unsure of the legal status of the river how can you tell a paddler to just use his or her “common sense” when looking at a much smaller and shallower waterway. That just seems to fly in the face of the facts.

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  15. Solidago says:

    Brian, why haven’t you interviewed the DEC? If you were trying to provide your listeners with a thorough understanding of the situation, I’d think you’d certainly want to present the DEC’s position. After all, they are the authority who would or would not issue you a ticket for trespassing if the landowners asked them to take action, and the DEC cut and maintains a portage around the property. The fact that you didn’t bother to interview them seems to be a glaring omission.

    Brian and Phil, what we’re talking about is a right-of-way, justified by necessity, that needed to have been reserved when the State of New York initially sold its property to private individuals. So historical context does matter. If that public right-of-way exists, then you are free to use the waterway however you wish, which nowadays typically means recreationally. No one is arguing that recreational use doesn’t “‘fit within’ the acceptable range of uses” – of navigable-in-fact waterways.

    The mention of modern river guides and the commercial dimension of recreation was ancillary to the ALC-Sierra Club opinion, just like the capacity for recreational use. Note that the case centered around whether or not the South Branch was capable of transporting logs in “its natural state and its ordinary capacity.”

    Phil, the court did not rule that Stewart Pond was surrounded by private property – they felt that question was “academic” because, despite its navigability, it was not “navigable-in-fact.”

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  16. buddy says:

    Wow, You’re all obviously better versed in Law than I am and you make very good points, But my question is.

    If Navigating a body of water requires a portage, shouldn’t that be deemed unnavicable by water ?? I like to canoe myself, But I’d feel pretty shady if I had to cross private property to get to the water.

    Are you saying that I can go to any property along any river in the state including the st.lawrence, and carry my canoe acrossed anybodys yard and launch it ?? That doesn’t seem right. The next thing you know there will be a law saying that strangers can use my bathroom whether I’m here or or not. LOL

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  17. Bill says:

    This is another example of taking a court ruling and stretching it to the point that the rubber band is just about to snap. Similar to the claims of some that the SLMP is LAW based on a court ruling. Well that court ruling only dealt with one section of the SLMP, not the entire SLMP.

    What it boils down to is the fact that some people feel that every square inch of Adirondack Park land should be accessible to the public, period. That some people actually believe that all 6 million acres + / – of the Adirondack Park should be public land and with this kind of mind set these people will continue to push the envelope.

    Oh, who are the people with political connections? The environmental special interest groups are. It still baffles me at how 3 special interest groups representing a mere 1% of the state’s population is granted so much influence over state policy in the Adirondacks. Politically connect, which special interest group has three of their members sitting on the APA’s Board of Commissioners?

    Lastly, if I was that land owner I would have call in law enforcement to arrest Phil and I would have followed through with his prosecution. Although I would not have called DEC because they would not have acted, I would have called either the State Police or the County Sheriff.

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  18. Ali says:

    Legal or not, I feel you need to find out why the property owners felt the need to post the land and run the cable. I am sure there is a story there. Perhaps the other side of the story is trampled land, litter, and loud, obnoxious paddlers. I am lucky enough to spend time on the water and I try to be respectful. I often see people litter, hear them cuss when we clearly have children around, and tie boats up to property that is obviously private, and get out and swim. I am sure waterfront property owners get frustrated by premium taxes and mistreatment on and around their property. I also wonder if it is a liability issue. The signs may be up to help protect the owners from liability if someone was injured on the property.

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  19. Paul says:

    Phil, along with being navigable and legally accessible there are other measures that may need to be taken into account to determine if a river is navigable-in-fact. The court pointed out several of those in their decision. Some of these other waterways have not been measured according to the law, why do you think it is safe to assume they are NIF based on just one or two criteria?.

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  20. Solidago says:

    Bret4207, under the common law you are only allowed to use “navigable-in-fact” waterways for travel, so you don’t have to worry about someone duck hunting in your pond under the law. Buddy, you can’t cross private property to access a waterway, but if during your trip it is “absolutely necessary” to cross private land for safe passage, you can.

    That said, navigation rights advocates certainly are trying to push this “common law right” far beyond its historical constraints. Bret4207, with their reasoning, there is nothing preventing someone taking an airboat like this – – across your property as long as there is a trickle of water connecting two public access points. Any stream, ditch, swamp, pond, marsh or other waterway that connects two non-contiguous public access points is “navigable-in-fact” under their reasoning. Brian and Phil, please provide an explanation other than “just because” as to why this isn’t the case given your arguments.

    Ali, under New York State law, the public has a right to go onto “unimproved” land if it isn’t posted, so it is practically a requirement if you want to have a say about who ventures onto your property. The cable is probably just there because if you put a fence post in a stream, it would probably get washed away. From the pictures, it doesn’t look like a “dangerous barrier” or whatever the heck some have characterized it as. Beyond that, who knows what the original justification was, but it is clear that due to the recent publicity, they have stepped things up.

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  21. Paul says:


    I am curios why did you feel it was necessary to paddle onto the posted section of Shingle Shanty Brook to understand this story? Why did you feel you needed to “cross that line” as you say?


    (assuming it is the same Phil from the Explorer) why did you feel it was necessary to do the same for your story, and others like the one on the Beaver River?

    Are these trips ancillary to the story or something that you felt you had to do to get it right? It is an interesting “look” at the working of a journalist. Must be one of those “boots on the ground” things! (or boat in the water in this case) You have some pretty good locations for your work. If we could all be so lucky!

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  22. Paul says:

    Also, Brian you wrote:

    “After talking with legal experts and reading the case law carefully, we decided that on balance the issue seems fairly clear:”

    Do you feel that your readers wishing to paddle these water bodies should seek similar advice? Or do you think that they can paddle these places without the threat of a legal tangle based on what you learned in preparing for the story?

    Since it seems that the overwhelming consensus (in this story and others) is there that Navigability IS Navigability-in-fact then I don’t see a problem. I would say ignore the outlying opinions and paddle on! Or carry on, or whatever.

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  23. Bret4207 says:

    Solidago says:
    July 27, 2010 at 12:34 pm

    Bret4207, under the common law you are only allowed to use “navigable-in-fact” waterways for travel, so you don’t have to worry about someone duck hunting in your pond under the law. ”

    Well, the problem with vague “common law” is that “traveling” hasn’t really been defined. If someone is “traveling” and follows a crick onto private property and hasn’t reached their “destination”….vague doesn’t always cut it.

    Incidentally, I do have to worry about trespassers. Anyone that gets hurt on my land can sue me. Posted or not, damages have been awarded to the plantiff.

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  24. Ken Tucker says:

    “We don’t every want to be in a situation where there’s a potential conflict between our family members and members of the public who are going through the area.”

    hmmm, name of ‘Potter’ you say, eh? Wouldn’t happen to a relate of the ‘Bedford Falls Potters, descendants of ‘Old Man Potter’ would ya now?

    Certainly act it. Regardless of how long the property has been in the family’s ‘portfolio’, what the Potters don’t understand is that they are just ‘visitin’*and no cameras of cables are going to change that. Long before the Potter’s ‘bought in’ and long after they’re all ‘gone’, this ADK by-way will still be navigated by anyone lucky enough to happen upon it as they ‘pass through’ this small corner of the high country.

    * Clarence Petty’s $0.02 from beyond the grave (RIP Clarence):

    On land controversies in the Adirondacks:

    “There are two very definite differences of philosophy. One philosophy says, ‘I own the land, I pay taxes on it, so I can do whatever I like with it.’ The other philosophy says,

    ‘I’m only a temporary custodian of the land, but there are thousands of others who are going to own it in the future, and I have an obligation to those people who come after me.’ That’s the difference between the two sides in the controversy in the Adirondacks today.”

    If the Potter’s don’t want any conflict eg ‘(It’s) a Wonderful Life’ they should:

    – ‘check’ the ‘Old man Potter’ ‘tude
    – pull the cable and cameras > OR…
    – be ready for the ‘court test’ that’s just ‘beggin’ for an activist/.org

    Here’s a ‘thought’, donate to the Nature Conservancy, take the tax write off and go buy something/somewhere w/o any pesky little poeple paddlers / navigable waterways ‘problems’, you’ll sleep better.

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  25. jerry says:

    The problem RESPECT. some one else owns it, pays taxes on it. In a city you do not walk thru someones private yard to get from point A to point B. OH wait a minute maybe it is just plain lazness. Let me walk on posted private property so I do not have to lug my canoe/kayak 1 mile. So if it is so difficult why do you do it? I do agree you should be able to go down a river. Use a deserted stretch of river bank to get out if you need to. You do need to respect property owners wishes. If they do not want you portaging you should not do it regardless of what you think a court decision says. We all want RESPECT we should be able to give it wheather we think a land owner is right or not.

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  26. Linda says:

    Frankly, navigable in fact or not, this was activism, not journalism. What was there about the story that you couldn’t have written without portaging across that land? How much of the legal issues did you develop, before the blog commentary got going? How does NPR have an unlimited budget for lawyers to encourage this?

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  27. Phil says:

    Speaking for myself, I canoed Shingle Shanty Brook because (1) I believed I had a legal right to do so and (2) I thought a first-hand account of the navigability of the waterway would be preferable to relying on second-hand accounts.

    Solidago, it’s been a while since I read the Hanigan decision, but Stewart Pond is a different situation. It is a pond surrounded by private land that does not lead anywhere. The court that ruled against the fishermen in that case is the same court that ruled the South Branch of the Moose was navigable-in-fact. The judges thought the evidence was so compelling that no trial was needed. Court of Appeals disagreed and remanded the question to the trial court. Because the parties settled, there was no trial.

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  28. Paul says:


    They are probably are ready for the “court test”. They can’t take down the posters or this will never get into court. I don’t think they have an “Old Man Potter-tude”, but that analogy is clever. The folks that own this land as a corporation are just regular folks. I don’t even think they allow electrical lines to be laid to their camps, and it is all outhouses instead of septic. There was a very good story in Adirondack Life a while back about the place.

    The “court test” is clearly needed here. Like I said the DEC (or some other law enforcement agency) should ticket paddlers like Brian and Phil. Then we can settle this very easily. The preponderance of opinion and “expert” analysis seems to be telling us that the common law allows this passage. If that is the case then the judge will tear up the tickets. Then the DEC can arrest the owners for illegal posting of their land. Brain seems to think that probably the DEC already feels that this is an illegal posting. They must if they don’t want to intervene? Therefor they should arrest the owners NOW for illegal posting.

    Personally, and I know this is a minority opinion here, I think that the reason the DEC is not intervening is that they are not as sure as Phil or Brian (or the “experts”) on the illegality of the posting. Remember they sat in when their lawyers were explaining why it might be a good idea to settle the 1989 case. I think their legal counsel would have been liable for malpractice if they didn’t advise their clients that there was a chance that they could lose the case. There were many questions that were headed back to the lower court. Both sides knew that they could lose. That is why this is not a settled matter no matter what all the “experts” tell us.

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  29. Paul says:

    “Because the parties settled, there was no trial.” And no decision and hence the problem at hand. In my opinion anyone who ignores the wisdom of the higher appellate court could be doing it at their own legal peril. The problem for paddlers on Shingle Shanty brook is that even with a court decision ruling that the South Branch of the Moose River was Navigable-in-fact it wouldn’t help you much. Phil, common sense tells you that this brook is a lot different than that river. That is probably why the DEC dropped the “list” idea. If there had not been a settlement, and the South Branch was found to be NIF, the only river they could really put on the “list” is the South Branch of the Moose for a 12 mile stretch. I know that this irks paddlers to no end but how can it be any other way? Personally I think it was in the Sierra Club’s and the DEC’s best interest to settle the case even if they thought that they were going to get a ruling that the river was NIF. At the trial there would have to have been evidence showing all the logging history etc. of that river. That would have set the bar pretty high for some of these other brooks and rivulets. Like the court said recreational boating is only one measure for navigability-in-fact they would have had to present other evidence. Having to do that blows away this argument that just because you can canoe down the thing that it is NIF and covered under the common law.

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  30. Phil says:

    Paul, yes, the Court of Appeals said recreational paddling is one test of a river’s navigability. Another test, I suppose, is whether the river has the capacity to float logs. Which test do you think is more relevant in today’s world? The court itself noted that logs are not floated to market anymore, but that does not preclude recreational paddling. I would add that floating logs was not always considered a right under the common law. It took the 1866 Morgan v. King decision to establish that right. Yet you now suggest that floating logs is the only proper test for a river’s NIF status. That doesn’t make sense.

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  31. Paul says:


    That doesn’t make sense you are right. I hope that is not what I suggested. No, you misunderstand my comments. Just like recreational boating is now ONE of many tests of the navigability-in-fact of a river, these other measures are also part of defining the water body. One reason the appellate court threw the decision back to the lower court was because they felt that recreational boating alone was not sufficient to define navigability-in-fact. They said that IT, along with other uses of the river, and other factors regarding flow, levels etc, could be used to make a determination of Navigability-in-fact. Just like a history of floating logs is not the proper “test” in itself, neither is recreational boating. I know that you would like to apply only that one test, but that isn’t enough for a NIF determination. If it was it is safe to say that the appellate court would have ruled in favor of the Sierra Club and the DEC (and the paddlers) and we would not be where we are today in this discussion. Just go ahead and ask the DEC legal people. Can you please unequivocally tell me that the ability to navigate a water body in my canoe is the same thing as navigability-in-fact for that water body? If the answer is YES you can go just about anywhere that you want. If it is NO than we are still stuck.

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  32. Paul says:

    Phil, maybe this helps. From the courts decision:

    “We only hold that such transport need not be limited to moving goods in commerce, but can include some recreational uses. Practical utility for travel or transport nevertheless remains the standard.”

    The “practical utility” of a water body “for travel or transport” is what needs to be shown for a river to be called navigable-in-fact. The appellate court understood that the South Branch was capable of being navigated by a canoe. They did not feel that this alone was sufficient to render a decision in favor of the defendants in this case.

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  33. Paul says:

    This should help further:

    “In line with these modern circumstances and our precedents, we are satisfied that recreational use should be part of the navigability analysis.”

    Phil, PART, PART of the analysis.

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  34. Paul says:

    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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  35. Phil says:

    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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  36. Phil says:

    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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  37. Bret4207 says:

    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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  38. Paul says:

    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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  39. Paul says:

    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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  40. Phil says:

    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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  41. Paul says:

    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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  42. Paul says:

    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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  43. Phil says:

    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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  44. Paul says:


    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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  45. Paul says:

    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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  46. Phil says:

    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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  47. Paul says:

    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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  48. Phil says:

    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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  49. Paul says:


    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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  50. Josh says:

    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:

    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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