At issue was whether some navigable waterways in New York state are like public highways, to be freely used for travel, or private roads, to be used only with the approval of the owner. And to the relief of anyone who loves to enjoy nature while paddling a canoe or kayak, a state Supreme Court judge ruled last week that any navigable waterway can be used for travel and recreation, whether it passes through private property or not. This is consistent with reason and law, a decision to be applauded — and accepted.
The case was brought by some private landowners in the Adirondacks after Phil Brown, an editor for the Adirondack Explorer, ignored their warnings and traversed their wilderness property for a 2009 article he called “Testing the Legal Waters.” The owners had put up no trespassing signs, cameras, even chains, to discourage people from doing exactly what Brown did, despite a 1993 Court of Appeals decision siding with canoeists in another “test paddle” elsewhere.
In that case, the Court of Appeals found that the public had a common-law right to use navigable waterways not just for commerce, which in the 19th century Adirondacks mostly meant logging, but for travel and recreation. The water may be privately owned, the court said, but the state had a public interest in an easement.
The landowners in the Brown case could appeal, but shouldn’t — and probably won’t — because they would almost certainly lose, as they have lost at every stage. They wanted the state Department of Environmental Conservation to enforce their prohibition on travel across their land; instead the DEC determined that the shallow waterway was “navigable in fact,” told them to remove their signs and chains, and said they wouldn’t stop, ticket or prosecute “trespassers.” The DEC and state attorney general’s office both sought a court injunction stopping them from posting their property, and the attorney general wound up intervening on behalf of Brown in the Supreme Court case. And now the court ruling in Brown’s favor.
While perhaps less urgent now, what’s still needed is state legislation codifying the common-law right to use navigable waterways. Bills have been introduced at various times during the last 25 years that would do that, but were blocked by the Senate. It’s a different Senate now. Someone needs to test paddle a new bill through those chambers.