Or did he have a right to be there because the waters he canoed are navigable and provide a useful link between parcels of public land?
The question rests with State Supreme Court Justice Richard T. Aulisi, who heard arguments on the case Friday in Johnstown.
Brown was sued for trespass by the Friends of Thayer Lake and the Brandreth Park Association for heading down a privately owned two-mile waterway that includes Mud Pond, Mud Pond Outlet and a portion of Shingle Shanty Brook. Their lawyer, Dennis Phillips of Glens Falls, argued that giving the public access to the waters—which he argued were barely floatable by anything but a lightweight craft—would be tantamount to stripping landowners of their rights. Phillips maintains that a privately owned waterway is open to the public only if it is useful for commerce.
Brown’s attorney, John Caffry of Glens Falls, and Assistant Attorney General Kevin Donovan contended that Phillips’s reading of the law was incorrect. Caffry argued that so long as the waters were navigable for trade or travel, Brown and others have a right to ply them. Caffry said the plaintiffs’ waters are part of a much longer waterway, most of which is owned by the state.
Aulisi probed Phillips’s argument that recreational use is not enough to declare a waterway open to the public. “What about the notion that tourism is commerce?” he asked Phillips.
Phillips agreed that tourism and commerce are partners, but he pointed out that the state has purchased a substantial amount of land in the Adirondacks to provide recreation to paddlers, hikers, and others. He said there is no need for private landowners to provide additional opportunities for recreation. “I do not think recreation by itself, somebody having fun, or having an experience, is enough to trigger the … exception to the idea that a person’s land is his domain,” Phillips said.
The case was heard in the Fulton County Courthouse, which opened in 1772, making it the oldest existing courthouse in the state. All three parties have asked Aulisi to decide the matter without a trial. Aulisi did not indicate whether he would do so. A decision could be months away.