Sunday, April 10, 2016

Phil Brown: The True History of Mud Pond Waterway

john caffryLast month, the state’s top tribunal, the Court of Appeals, heard arguments in a legal dispute over the public’s right to paddle a two-mile stretch of water near Lake Lila. It is sometimes referred to as the Mud Pond Waterway.

I paddled the waterway in 2009 and was sued for trespass the following year. A state Supreme Court judge dismissed the lawsuit in 2013. The Appellate Division upheld the ruling in 2015, but the landowners appealed a second time.

Given that a ruling in the Court of Appeals could have statewide ramifications, there is a fair amount of interest in the case. Several reporters and photographers attended the oral arguments, and a number of newspapers around the state and outside the state ran stories.

Some news stories said the appellants — the Brandreth Park Association and the Friends of Thayer Lake — have owned the property since the mid-1800s. This is understandable, as a summary of the case on the Court of Appeals website stated that the land in question has been in the hands of the Brandreth family “since an ancestor bought it from the State in 1851.”

This needs clarification. Yes, it’s true that Benjamin Brandreth bought the property in 1851. But the Brandreth clan sold it to International Paper in 1974. At that time, they held onto the recreational rights (which differ from navigation rights, which they had never owned). In 2000, IP sold the land to The Nature Conservancy, and in 2007, the Conservancy sold it to Friends of Thayer Lake LLC, owned by a subset of the Brandreth family.

This history is important because it undermines a central claim of the appellants, namely that allowing the public to paddle the Mud Pond Waterway would upset longstanding expectations of the landowners and amount to a judicial taking of their property rights.

Circumstances have changed significantly since the Brandreths sold the property to IP. In 1979, the state bought neighboring Lake Lila. Two decades later, it acquired some 14,000 acres in the vicinity of Little Tupper Lake. These two purchases gave the public access to both ends of the Mud Pond Waterway, which connects Lake Lila to Lilypad Pond, one of many ponds on the state’s Little Tupper tract. Thus, the appellants’ waterway became useful for paddling between two parcels of state land.

Friends of Thayer Lake knew of these circumstances when it purchased the property from The Nature Conservancy in 2007. In fact, the deed conveying the land to Friends of Thayer Lake recognized the “right of the public to navigate the surface waters” of the Mud Pond Waterway.

That’s right, Friends of Thayer Lake is suing me for paddling the same waterway that its deed said would be open to the public. The appellants now claim that this provision in the deed is void as The Nature Conservancy did not own the recreational rights.

Nevertheless, the deed is clear evidence that Friends of Thayer Lake was aware of the public’s interest in navigating this waterway when it bought the property from The Nature Conservancy. It seems disingenuous for it to argue that allowing people to paddle through the property would upset expectations dating back to the nineteenth century when it has owned the property for less than a decade.

In any event, what matters is the law, not the expectations of landowners. For many years, the public did not have a legal way to reach the Mud Pond Waterway. The Brandreths may have expected that such would be the case in perpetuity. It was the case for a long time, but not forever. We, the public, now have legal access to both ends of the waterway, and we should be allowed to use it to travel between public lands.

Both my lawyer, John Caffry, and the state attorney general contend that the common law gives the public the right to paddle any waterway that has a practical utility for travel, assuming people can legally access and exit the waterway. Most rivers in the Adirondacks and the state pass through private land at some point. The common law ensures that landowners, whatever their expectations, cannot close these age-old public highways.

Click on the link below to a read a transcript of the oral arguments.


Photo by Nancie Battaglia: John Caffry addresses the Court of Appeals, while Dennis Phillips looks on.

This article originally appeared on the opinion page of the Albany Times Union.



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Phil Brown is the former Editor of Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack. Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing. He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.Visit Lost Pond Press for more information.

25 Responses

  1. Justin Farrell says:

    Poland is next!

  2. Todd Eastman says:

    Good explanation of the facts.


  3. Joe Hansen says:

    Thank you for a clear (and compelling) statement of you’re case. Facts do matter! But you made no mention of the Stuka bombers and Panzer tanks?

  4. adkDreamer says:

    Great! Concise read and very helpful. I am confused about 2 things: How is it Brandreth Park Association (BPA) is a party with the claimant of this appeal when they are not owners of the property? I believe BPA could provide Friends of Thayer Lake (FoTL) potential support via witness testimony, but in my view BPA has no legal standing as a claimant. Next question: How is it that FoTL’s believes ownership of “recreational rights” are somehow automatically extended to the “right of the public to navigate the surface waters”? These appear to be two distinct “rights” and I would like to believe that any conveyance of “rights” implies the “rights” can and shall peacefully co-exists with one another.

    • Curt Austin says:

      A court once ruled that recreation counted as “commerce” for purposes of settling questions of navigability. Phil was successfully navigating at the time – obviously. No deed covenant or private exchange of rights can overrule common law rights.

      It really is as simple as that. It may come as a shock to those who regard property rights as an absolute, but the law has never treated them that way: private property derives from a license granted by the state, and the rights are defined by common law.

      The plaintiffs must plunge the case into murkiness to win. A sympathetic justice can work with murkiness. There’s a fair amount of murkiness to exploit here; Caffrey’s challenge was to steer clear of it.

    • Phil Brown says:

      Brandreth Park has standing because it still owns the recreation rights to the property. Recreation rights do not trump the common-law right of public navigation. The dispute here is whether the common law applies to this waterway. We believe it does. Simply put, it’s useful for travel between two pieces of public land and can be a link in longer canoe trips.

  5. Bruce says:

    The law (which is a separate issue) aside for the moment…does it really matter if the Brandreth family actually owned the land continuously for all these years, or bought it back from someone else years later? I’ve seen ownership history be explained what, 3 times so far? I have to ask why? Ownership history is being used to “muddy” the real issue.

    Whomever owns the land (or for how long) is not really germane to what the law may say about using the waterway.

    • adkDreamer says:

      Bruce – I agree completely,which is why I find it odd that Brandreth Park Association is a party to this claim.

  6. Marco says:

    Obviously, if Phil paddled the waterway (even with portages) there is no reason that the law for navigable rights not to be upheld. Selling the land makes no difference. Holding recreational rights to the land makes no difference to navigational rights. I agree with adkDreamer. BPA has no interest making this rather frivolous.

  7. Randy says:

    I’m sure there is a legal interpretation, explanation and precedent that will put my thoughts in an early grave, but here goes:

    Who owns the water between the waterway? The State of New York, and thereby the people. If the state-owned water from one body of water flows through this waterway into another body of state-owned water, then doesn’t the water IN the waterway belong to the State (and the people)? So long as a person doesn’t step out of the waterway or on the bottom of the waterway onto land that does not belong to the State of NY it seems that the actual water could not be owned by anyone other than the State.

    I rest my “case”, your honor………

  8. Paul says:

    This should be tried in court – not online.

    • Boreas says:

      After two appeals, the plaintiffs will likely have their case looked at by the courts yet again. But the principle of navigation is a major factor and involves everyone in the state. I feel the public has every right to weigh in on the case, be it here or anywhere.

      • Paul says:

        It is being looked at a third time now. That is what this is talking about. Last stop (at least in NYS) COA.

  9. Dan Ling says:

    Again, to remind people, “Wallace’s Descriptive Guide,” the definitive paddling guide to the Adirondacks of the late 1800’s, describes this route as one which had been used by sportsmen for many years since the early to mid-1800’s, to connect Smith’s Lake (now called Lake Lila) with the “Tupper Waters.” According to Wallace, boats “are generally towed or poled” up much of the route, which was a common procedure then as now all over the Adirondacks. And though today’s route is different where it passes through State land around Hardigan Pond (it originally passed through private Salmon Lake), the contested portion below Mud Pond is exactly the same route as it was described by Wallace over 125 years ago.

    • Bruce says:

      Dan Ling,

      Unless you regard Wallace just as a history lesson, I don’t believe what Wallace had to say is really germane to the current issue, because if you read Nessmuk and his travels in the 1880’s, or Adirondack Murray’s book, folks regarded all waters (including lakes and waterways entirely enclosed by the huge private holdings of absentee landowners) more or less fair game for hunting, fishing, travel, and in some cases, homesteading.

      • Dan Ling says:

        You are likely correct. In past articles about this case, some asserted that this route was likely not used much or at all in the past, and that it was most certainly not used for “commerce.” Though such points are also likely irrelevant to the legal issues, Wallace’s book makes it clear that indeed, the very portion of the route that is in question was actually used by many people, and for some guides, for their livelihood. This was one of the points I was trying to make, just to help people understand the route, and it’s place in our culture, more fully. Also, this route connects two major watersheds, the Beaver and the Raquette, and so is one of the not-too-numerous critical links for long-distance canoe travel, which in recent years has been severely restricted by illegal river closures. So this is not just a remote path for crazy paddlers. It is a critical link in travel routes and to our cultural history. The wilderness guide concept was born in the Adirondacks (leatherstockings). And the canoe “grew up” in the Adirondacks (Rushton). This is a heritage we all should know about, and perhaps more fully appreciate and support, in part by re-establishing its legality, and allowing it to continue into the future for the benefit of all the people.

  10. Dan Ling says:

    I meant to mention two other things (my memory is not what it used to be). For those interested you can find the description of the route on p. 114 of “Descriptive Guide to the Adirondacks, Land of the Thousand Lakes,” by E.R. Wallace, 12th Edition of 1887. It’s long out of print of course, but can be perused at the NYS Library in Albany. I also should have mentioned that Wallace referred to this portion of the route as being on the “Beaver River,” as it is indeed the headwaters of the Beaver. This route was clearly important to sportsmen and the guides who made their living along these special watery highways.

  11. Paul says:

    “Thus, the appellants’ waterway became useful for paddling between two parcels of state land.”

    Why just padding?

  12. Paul says:

    In these kinds of cases where the AG joins the suit it seems like they are ganging up on the appellant. That’s gotta raise the bar some.

    • Phil Brown says:

      Ganging up? The state joined the suit to protect the public right of navigation. It’s an obligation.

      Meanwhile, the appellants are backed by an outside interest group, the Pacific Legal Foundation, which is headquartered in California.

  13. George L. says:

    On the phony question of expectations, in 1850, New York Senator Benjamin Brandreth, representing Putnam, Rockland, and Westchester Counties, voted to declare the Rackett River a public highway. Presumably Senator Brandreth knew that the Legislature’s public highway declaration was an acknowledgement of the public’s pre-existing common law easement of travel over an otherwise privately-owned river.

    In 1851, Senator Brandreth, whose fortune derived from mass-marketing a “vegetable universal” pill, purchased 24,000 acres from the State. Senator Brandreth knew that one source of the Beaver River was on his lands, and that the Beaver River, part of a larger water system, was used for transport by hunters, trappers, and sports.

    Indeed, in 1853, two years after Senator Brandreth voted to declare the Rackett a public highway, the Legislature declared most of the Beaver River to be a public highway.

    While the Friends of Thayer Lake vehemently declare their right to exclude the public from paddling a tributary of the Beaver River, Benjamin Brandreth, their founding patriarch well-understood that certain Adirondack rivers were public highways, and susceptible to be declared such by an act of the Legislature, or the judgment of a court.

    Most certainly Senator Brandreth did not share the expectations (desires?) of the Friends of Thayer Lake, because he understood the law in New York, as they do not.

  14. Tim Rowland says:

    Phil, I might be misunderstanding the role of a nature conservancy, but it strikes me as odd that it would sell to an outfit that would move to restrict public enjoyment of the land in question.

  15. Bruce says:

    I just looked at the Nature Conservancy website, and the only conclusion I could draw is they sold it to an organization which has stricter protection goals than the Conservancy espouses. The Conservancy is about protection from irresponsible use, not necessarily opening lands for recreation.

    • Tim Rowland says:

      Thanks Bruce, that makes sense. It all depends on what one is conserving the land for, I suppose.

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