The Third Department of the Appellate Division of State Supreme Court, located in Albany, handed down the 3-2 decision on Thursday morning. It affirmed a 2013 ruling by State Supreme Court Justice Richard T. Aulisi supporting the public’s right to travel down an isolated, two-mile waterway that connects two pieces of the William C. Whitney Wilderness.
“We’re thrilled and gratified that the Appellate Division agreed that Phil Brown did not commit trespass because he and the general public have the right to canoe through this waterway,” said Tom Woodman, publisher of the Explorer, a nonprofit newsmagazine which also publishes Adirondack Almanack. “We believe that this decision will influence courts across the state and strengthen the right of the general public to have access to rivers that for some stretch pass through private lands. These are fundamentally public thoroughfares and are available to all.”
Because two judges dissented, the landowners have an automatic right to appeal the decision to the Court of Appeals, the state’s top court. Dennis Phillips, the attorney representing the landowners, said it was “too early to tell about any appeal.” John Caffry, who represents Brown, said he would not be surprised if there is an appeal.
In May 2009, Brown paddled through land owned by the Brandreth Park Association and the Friends of Thayer Lake. He later wrote a story for the Explorer about the common-law right of public navigation.
The following year, the landowners sued Brown for trespass. The New York State Department of Environmental Conservation, however, agreed with Brown that the waterway is “navigable-in-fact” and therefore open to the public, and so Attorney General Eric Schneiderman intervened in the case in defense of that position.
The landowners contended that a waterway must have a history of, or capacity for, commercial use to trigger the common-law right of navigation. Attorneys for Brown and the state argued that any waterway suitable for trade or travel is navigable-in-fact.
In its ruling today, the Appellate Division pointed to testimony by Donald Potter, one of the landowners. Potter’s description of getting to and from camp via canoe and ferrying in food, building materials, and other goods proved that the waterway is useful for transportation and therefore legally navigable, the court found.
The fact that the waterway was small didn’t matter, according to the majority’s opinion, written by Justice Elizabeth A. Garry. “A stream that can carry only small boats may nevertheless be navigable-in-fact,” Garry wrote.
And while the waterway is well off the beaten path, “the standard for navigability-in-fact is more concerned with a waterway’s capacity and characteristics than its location,” the justices found.
“The evidence establishes that the waterway has the capacity to provide practical utility to the public for both trade and travel,” the ruling said.
The two dissenting justices said that the waterway’s remoteness – and the difficulty of undertaking such a journey – makes the stream of little practical use to the public. Concluding that such a small route is open to the public, wrote Justice Robert S. Rose, would “unnecessarily expand our navigability-in-fact doctrine and destabilize settled expectations of private property ownership by opening up remote, unpopulated, privately owned bodies of water as long as the public has some way, however arduous and recently acquired, of gaining access to them.”
UPDATE: This story was updated with a comment from Dennis Phillips, the attorney representing the landowners.
DISCLOSURE: The Adirondack Almanack is a publication of Adirondack Explorer magazine. Phil Brown is Editor of Adirondack Explorer and a regular contributor to Adirondack Almanack.