Last 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.