Tuesday, July 2, 2013

Adirondack Legal History: The Lake George Trespass Case

erosionI recently came across an essay by Edmund H. Richard in The Forest Preserve, written during the big conservation battle over the proposed construction of Panther Dam in 1947:

“A citizen may not have title to his home, but he does have an undivided deed to this Adirondack land of solitude and peace and tranquility.  To him belong the sparkling lakes tucked away in the deep woods and the cold, pure rivers which thread like quicksilver through lush mountain valleys.  His determination to preserve his personal treasure for posterity has been tempered by memories of campfires, and strengthened by pack-laden tramps along wilderness trails and by mountaintop views of his chosen land.  To him the South Branch of the Moose is a River of Opportunity, for he has come to regard it as the front line of defense against the commercial invasion of his Forest Preserve.”

island disappearingWhen John Apperson retired from G.E. in 1947 he began to narrow the scope of his environmental conservation activities, leaving the leadership of the battle against the Panther Dam project largely to his protégé Paul Schaefer.  He continued, however, to vigorously defend the islands at Lake George.  A few years earlier, when the State of New York initiated a suit against the owners of a dam at Ticonderoga, Apperson served as chief witness for the State.  This litigation, now known as the Trespass Case, continued over many years, pitting Apperson against Lithgow Osborne, Conservation Commissioner (in 1942) and Charles H. Tuttle, attorney for the Lake George Association (in 1951).  This story has been passed over by many of the environmental historians, and it deserves our attention.

By the end of the nineteenth century, Lake George was already highly developed, with its hotels, steam boats, and centers of population. Once John Apperson started camping on its islands, around 1908, he made up his mind to do whatever he could to prevent further development.  To paraphrase Mr. Richards, Apperson considered Lake George as his “Lake of Opportunity” and his “front line of defense against the commercial invasion of his Forest Preserve.”  To him the issues were crystal clear.  The owners of the dam at the northern outlet of Lake George, at Ticonderoga, were controlling the water levels of the lake…as if it were a mill dam!  First he enlisted the help of hundreds of friends, hauling out rocks and boulders and building protective walls around the islands.  Later he managed to persuade the state to help.  However, the islands continued to disappear.

Work CrewLetters from the Apperson archives illustrate the sort of opposition he faced.

  1. Letter from Lithgow Osborne, Commissioner, State Conservation Department to Kenneth G. Reynolds, attorney. August 28, 1942

“While it is always a pleasure to see you it is anything but a pleasure to tolerate such a high grade crook as Mr. Apperson….What Messrs Apperson, Langmuir and Reynolds et al apparently want is to have the lake levels operated for their specific benefit and pleasure as campers and users of the lake. I don’t blame them for wanting that.  But I should think they might recognize there are other interests involved and that it does not follow that the interests of the state are co-terminus with their own.  And furthermore, that it is extremely improper for the state to back one set of private interests as against another set of private interests.”

  1. Letter to the Editor of the Post Star, August 22, 1951, by Charles Tuttle:

The impression created by Mr. Apperson’s statements that the islands are being washed away is utterly erroneous.  I have been on this lake for over 70 years and have a painting done in 1864.  The islands are still with us.

  1. Letter to the Editor of the Post Star, August 27, 1951, by John Apperson:

“…your…letter from Mr. Charles Tuttle… ignores the record of the court, also the list of islands in Lake George publicized by the Conservation Department, and other pertinent facts available to him.  For instance, the Conservation Department includes Manhattan Island in their list which was damaged year after year until the last wild rosebush and other shrubs were washed off about 20 years ago.  The part left underwater is now a hazard to navigation and is marked by two tin-can buoys.  …Mr. Tuttle knows these facts but he testified in the court to the effect that no material damage to islands had occurred…”

So what happened after that?  Here is a summary from the Apperson papers, apparently written after 1957…author unknown…

The 60 year-old controversy over Lake George water levels has been fully documented officially and unofficially but the material is too voluminous for most readers.  …The Association intervened on the side of the power company in the suit brought by the State against the power company.  This Association was also committed by agreements to high lake levels which flooded Forest Preserve land.  Such use of Forest Preserve lands is forbidden by the State Constitution.  It will be observed the lower court’s decision was unfavorable to the people of the State.  Mr. Tuttle seemed satisfied and did not recommend an appeal to the higher court. However, after much effort and delay an appeal to the higher court was obtained.  After 14 years of litigation the highest court in the State ruled in 1957 that the State had the sole right to regulate the water in the lake and the water in the outlet of the lake.  While the court awarded the ownership of the dam site to the power company, the dam can only be operated as directed by the State, since the State has the sole authority to regulate the water.  The private shore owners lost their riparian rights, having failed to assert them before the lapse of time.

Clearly, the Lake George Association sided with the owners of the dam, a commercial interest. They may have been disappointed by the outcome, and unhappy to relinquish control to the State.

Apperson and his Forest Preserve Association, trying to protect the islands in Lake George, fought to remove the artificial dam and restore the natural stone dam that had been in place in the nineteenth century. This strategy was unpopular, and they were unable to convince the judges.  So, the Supreme Court decided to keep the dam and allow the power company to continue to operate it, but with state oversight.

Although Apperson may have been disappointed in the outcome, he could take comfort in the fact that he had stirred up interest in the important issue of riparian rights, and helped clarify policy regarding waterways in the Forest Preserve.

It would be interesting to know what scholars and attorneys can tell us today about the effects this ruling had on other litigation in the Forest Preserve. From my perspective, this case illustrates the courage and persistence of a remarkable man!

Photos by John Apperson: Above and middle, Lake George island erosion; below, a crew of island volunteers. More photos of erosion of the Lake George islands in the early 20th century, and other examples of Apperson’s documentary photography, can be found at on the Apperson Associates webpage.

Ellen Apperson Brown


Ellen Apperson Brown is working to preserve and publish materials from John S. Apperson Jr.'s papers in the Adirondack Research Library at Union College.

She also maintains Apperson Associates, a website designed as an introduction to the life and accomplishments of John Apperson.

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8 Responses

  1. [...] Adirondack Legal History: The Lake George Trespass Case [...]

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  2. Avon says:

    I’m one lawyer with a longtime interest in the Forest Preserve, but with no knowledge of this Lake George litigation. I doubt it has much effect today, since the State’s right to regulate water in the Preserve has never been in serious doubt anyway, and the Lake George facts were too unusual to crop up again.

    To clarify, the New York State “Supreme Court” is the lowest court with jurisdiction of cases generally. It is in each county of the State, and conducts trials. Above it is an appellate division. The highest court in the State (a 7-judge panel sitting in Albany) is called the “Court of Appeals.”

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    • Ellen Brown says:

      Thanks for your response. I’m no lawyer, but I think that the Lake George Trespass case provides an interesting example of how much time and effort it sometimes takes to prod the government into action. The issues boiled down to a classic dispute between commercial interests (controlling the dam at Ticonderoga) and environmental activists (Apperson, Langmuir, et al…) and had all the usual players – corrupt public officials, wealthy and elitist property owners, and organizations that failed to stand up for the rights of the average citizen. Without the leadership and persistence of Apperson and his friends, Tongue Mountain, the Narrows, Paradise Bay, and the Eastern Shore of Lake George would look entirely different today. Perhaps Lake George seems like an insignificant, tiny portion of the huge New York Forest Preserve, but it served as a key battle ground for legal wrangling, especially in the first half of the Twentieth Century. I plan to go have a look at a stash of papers that have been kept under lock and key (at the Adirondack Museum) for fifty years, left there by Warwick Carpenter, a talented young man who was fired from his job as Secretary of the Conservation Commission in 1921. He hoped that John Apperson would somehow find a way to see that these controversial papers eventually got into the right hands. I’m sure there will be some evidence there of illegal behavior by state officials…way back in the 1920s. I hope some legal experts will help me sift through these documents…and I’ll do my best to tell the story.

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      • Judson Witham says:

        I am seeking information on the Shoreline Damage and Destruction evidence and investigations / photographs that were undertaken by John Apperson in his Opposition to the Mill Pond Operation of Lake George. It should be noted that lowering and raising the Mill Pond during ice cover is enormously destructive to Boat Houses and Docks as well as Shoreline during Ice In and Ice Out and Throughout the Winter. I am particularly interested in the decade of the 1960s as I have evidence that the Ice and Snow Sheet over LG was manipulated to Flush International Paper’s Mess into Lake Champlain, ALL Information will be appreciated. See http://dockets.justia.com/docket/north-carolina/ncedce/5:2013cv00611/131378/

        Thank You

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      • Judson Witham says:

        I would sincerely appreciate all Photos and Writings Court Evidence regarding Intentional Lake Level Manipulations during Winter Ice and Snow Cover. As Mr Apperson and His Associates discovered Raising and Lowering the Ice Sheet was Immensely Damaging, I am particularly interested in the decade of the 1960s as I have evidence that the Ice and Snow Sheet over LG was manipulated to Flush International Paper’s Mess into Lake Champlain, ALL Information will be appreciated. See http://dockets.justia.com/docket/north-carolina/ncedce/5:2013cv00611/131378/

        Thank You

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  3. N. Donald Boink, O.D. says:

    I have been following the writing of Ellen Apperson Brown concerning Lake George and its trials and tribulations.

    Years ago I found a book in the Diamond Point Library that detailed the controversy over the control of the lake level.

    I wrote to the Albany Legislative Library requesting a copy of this legislative report. I shortly received a copy, gratis, from a legislator, I can’t remember his name.

    My recollection is that it had an introduction describing the geologic history of how the lake came to be, written by a Professor of Geology at Colgate Univ.

    In order to resolve the controversy a study was undertaken to ascertain what riparian rights were involved and what the significant effects of water level fluctuation were.

    The state had substantial interest in preserving the islands in the lake. Property owners likewise were inconvenienced by having either property damage or low water for boating.

    The mill owners at Ticonderoga based their rights on grants from the King. Their methods of controlling lake level were described. Flash-boards were used to contain
    Spring run off and the natural dam was dynamited to allow
    additional flow in the Fall.

    The upshot of all this study was legislation that gave the state control of lake level and established a gauge at Roger’s Rock to be used to set the upper and lower limits of lake level.

    I donated my collection of Adirondack books, copies of Colvin’s survey reports, to the legislature for a number of years as well as the book mentioned above, along with other historical writings to the Adirondack Research Library now owned by my alma mater, Union College.

    My reason for writing is that no mention has been made of the legislation referred to. Perhaps other readers of the Almanac can verify this.

    The Almanac and Explorer are truly great publications. thanks.

    N. D. Boink, (summer address 573 State Rt. 28, Warrensburg, NY)

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  4. John Apperson’s Work and the Lake George Trespass Case is still relevant. Sjore Line and Dock and Environmental Damage is Back In The Federal Courts THIS TIME

    http://dockets.justia.com/docket/north-carolina/ncedce/5:2013cv00611/131378/

    Witham v. New York State et al :: Justia Dockets & Filings
    dockets.justia.com › … › Real Property › Torts to Land‎
    Aug 23, 2013 – North Carolina Eastern District Court – Real Property – Torts to Land – Witham v. New York State et al – Justia Federal Dockets and Filings.

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  5. This in response to the interesting comments of Donald Boink…I believe you are right about the legislation, and I am glad to know that your papers have been left in the care of the research library at Union College. I would add, however, that in the fifty years since Apperson’s death, one has to wonder if the State of New York has been able to properly monitor the water levels in Lake George. Apperson’s Lake George Protective Association did not stay active for very long following his death. Without an effective watchdog(s)…what would ensure that the state regulates the water flow, or takes action to protect the property owners and their riparian rights.
    According to Judson Witham ( see his letter above)…the state of New York turned a blind eye to the destruction of docks and a marina in Lake George, allowing the International Paper Company to flush contaminated water from the dam at the northern tip of Lake George, in the winter, and into Lake Champlain, causing the water levels to drop precipitously and damaging docks. The water levels and the pollution certainly would have been a great concern to John Apperson, and I hope other activists and concerned citizens will keep up the good fight today!

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