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Court rules waterways on private land only navigable for trade or travel

Court rules waterways on private land only navigable for trade or travel

Ruling comes after years of wrangling
Court rules waterways on private land only navigable for trade or travel
Phil Brown, recently retired editor of the Adirondack Explorer, is pictured.
Photographer: Photo provided

HAMILTON COUNTY -- After years of legal wrangling, a court ruling by state Supreme Court Justice Richard Aulisi has decided that waterways running through private lands are not "navigable" if the only reason to navigate them is for recreation. 

Aulisi ruled on Dec. 20 in favor of the plaintiffs in the long-running court battle between some Adirondack landowners and paddler Phil Brown and the Adirondack Explorer magazine. 

At issue was whether the waterway in question was a legally "navigable" waterway, which would mean it was open for public use in the same sense as a public highway.

The case stems from a 2009 article written by Phil Brown for the Adirondack Explorer magazine. Brown described paddling through a section of a mud pond waterway known as the "Shingle Shanty Brook," which runs through the Brandreth Park private preserve in northern Hamilton County.

The owners of the land sued Brown for trespass in 2010 and the case has moved from lower to higher courts since then, all of them siding with Brown that the waterway was considered historically navigable.

In 2016, the Court of Appeals, New York state's highest court, sent the case back to the original judge -- Aulisi -- for a trial to resolve facts about whether the remote stream is actually navigable under state law. 

This time Aulisi reversed his earlier ruling in 2013, and decided the waterway should not be considered navigable because recreational use by itself is not enough to trigger that designation. Aulisi wrote that a waterway must provide practical utility to the public as a means for transportation for trade or travel to be considered navigable. 

“Recreational use alone is insufficient to deem a waterway navigable-in-fact, and the record reveals that only a marginal segment of the general population would benefit from using the disputed waterway for recreational travel," Aulisi wrote, according to published accounts of the ruling.

The legal ruling does not conclude, however, that Brown was trespassing in 2009. 

Brown, who retired after 19 years as editor of the Adirondack Explorer in August, said he has not decided yet whether to appeal the ruling. 

"The lawyers need time to analyze the decision," he said. "We were disappointed in the judge’s ruling. A number of paddlers testified at the trial that they found it easy to canoe or kayak the disputed waterway. Since the waterway provides a link to two areas of the Forest Preserve, it seems to us to be of practical utility to the public."

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