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-   -   Lila Traverse appellate victory! (http://www.adkforum.com/showthread.php?t=21092)

aoc-1 01-15-2015 10:36 AM

Lila Traverse appellate victory!
 
Congratulations to Phil Brown for his terrific appellate victory today establishing the Lila Traverse from Little Tupper Lake to Lake Lila navigable-in-fact and thus open to canoeists. The court was split 3-2 so the case may be headed to New York's highest court. A great win for us all.

http://decisions.courts.state.ny.us/...015/518309.pdf

snapper 01-15-2015 11:21 AM

That's great news! Let's hope this is the end of it but, with the group's deep pockets, I'm guessing it won't be.

That's all for now. Take care and until next time...Be well.

snapper

aft paddle 01-15-2015 12:27 PM

I've canoed up the Shingle Shanty to the property line but gone no further on the water. Is it alright to snowshoe on the frozen waterway to check out the area to see if I'd want take the route with a light pack canoe?

Zach 01-15-2015 12:57 PM

I wonder if the decision on Shingle Shanty will have any relevance to traveling from Lake Lila to Stillwater. That's a trip I hope to be able to make sometime during my lifetime.
Zach

stripperguy 01-15-2015 12:58 PM

great news for paddlers and Phil!!

Hmmm, I'm looking at the Beaver River...

I just saw your post, Zach...I'm sure many of us would like to do that route.

charlie wilson 01-16-2015 09:02 PM

Another good result, although the 3/2 vote is disturbing, and we'll probably need a Supreme Court decision to put this to bed. So it goes.

yellowcanoe 01-16-2015 09:28 PM

I bet tan appeal happens and it wont be this year that the case goes to the State Supreme Court

Wldrns 01-17-2015 05:11 PM

Quote:

Originally Posted by Zach (Post 226448)
I wonder if the decision on Shingle Shanty will have any relevance to traveling from Lake Lila to Stillwater. That's a trip I hope to be able to make sometime during my lifetime.
Zach

I've seen it, some people have run it. Lots of boulders. Definitely need to do a portage, or use a boat you don't mind banging up when the water is high enough. I have made the trek from Lows to Stillwater via the Oswegatchie headwaters. Lots of bushwhack/portage there too.

Cold River Bob 01-18-2015 10:21 AM

Here is a link to a trip he took Down Beaver River

http://www.adirondackexplorer.org/st...orbidden-river

I would like to do it.

Gunney 01-21-2015 08:58 PM

Congratulations on navigation rights. I, too, wonder if there will be positive repercussions. I wouldn't mind seeing Slim Pond and Big Brook, Saint Regis River, and Beaver River open for paddling.

TCD 01-22-2015 10:34 AM

I'm not sure what to think about this. Here, there seems to be universal celebration of this outcome. I'm not sure that's shared everywhere.

While I like the idea of more areas to recreate, personally I expect to never run out of state land that I have not yet visited. I feel no urge to force my way onto private land for more recreational opportunities. So while this may be a fun route, and the others discussed may be fun as well, let's not kid ourselves that this decision does not represent an erosion of private property rights.

Your backyard is "navigable." Do you really want averyone walking through it at will, and fighting you in court to say that your "no trespassing" signs don't mean anything? How about hunting? Bikes? Other activities with their attendant liability concerns?

Who knows what's in Pandora's Box?

dundee 01-22-2015 11:56 AM

I look at it the other way. It has been my understanding that waterways were originally public highways. This was English law, what we now call "common law". In the late 1800's rich landowners in the ADKs had the law changed just for them and these highways then closed off. Other areas in NY and the US still recognized waterways as public.

The problem is that we have/had two different laws in the same state. I don't pretend to know the law inside and out, but this is how it was explained to me.

All that is being done now is to bring things back to their original ways.

Zach 01-22-2015 12:00 PM

The same argument could be made for roads, that if you own the land on both sides you should be able to close the road to the public. The waterways in the Adirondacks are the historical means of getting around, and it seems too bad to me for portions of them to be closed when they are reasonably navigable.
Zach

charlie wilson 01-22-2015 12:07 PM

Towards the end of the last century, I lived in Illinois, and it's MiddleFork of the Vermilion River was designated a National Scenic River. About a linear mile of it made a bend from North to East in the middle of our family farm. Yeah, it was easier not to fence or try keeping cattle in the bottom, but cleaning up the odd, paddler induced, luncheon mess was hardly a bother compared to living around the cleanest river in East Central Illinois. It became a thrill to see fellow paddlers enjoying the river and our ash grove.

TCD 01-22-2015 02:06 PM

Quote:

Originally Posted by Zach (Post 226668)
The same argument could be made for roads, that if you own the land on both sides you should be able to close the road to the public. The waterways in the Adirondacks are the historical means of getting around, and it seems too bad to me for portions of them to be closed when they are reasonably navigable.
Zach

Thanks, all. Food for thought, certainly.

But I disagree that there is any valid analogy with a road. A river is a natural feature that already exists on the land, like a hill, swamp, or meadow. A road is a manmade object, typically built with taxpayer money and owned by the taxpayers. Totally unrelated case.

A more reasonable analogy would be if there was a natural meadow on your otherwise forested land, and the snowmobilers found it to be a good place to travel.

timberghost 01-22-2015 08:04 PM

Quote:

Originally Posted by TCD (Post 226659)
let's not kid ourselves that this decision does not represent an erosion of private property rights.

Who knows what's in Pandora's Box?

Perhaps one can argue paddling down a remote stream erodes adjacent landowners' rights to privacy.
The plaintiffs argument is still fairly weak - adjacent parcels were once private but now that NY state bought them it presents an opportunity for public access...
One has to question if a private citizen or an organization such as OSI bought a parcel on LTL and allowed public to access the waterway (for free or fee) would the argument still hold?

Pandora's Box is wide open with military drone surveillance overflights and ever increasing numbers of 'consumer' drones - at least paddlers are easy to spot and have a set of rules to follow.

Paradox6 01-23-2015 12:54 PM

We beat the dickens out of this a few years ago. A trip to the Court of Appeals is likely.

It is a 3-2 decision with a very strong dissent by two highly respected appellate judges. The majority decision understands they are on very thin ice in their Footnote #5. Nobody apparently disagrees that the area in controversy never had the character of a public highway. It is only navigable because the Brandreths cleared the waterway (not in it's natural state) and the state itself has apparently treated the property, for years, as a private waterway.

One of the issues in the Court of Appeals will be whether the property rights are set at the time of the conveyance in 1851, (as has always been the case in property law), or if they are transitory or "morphable" by developments a century and a half later, in which case hundreds of years of property rights legal principals goes out the window.

Long from over.

WaterRings 01-26-2015 05:03 PM

Bad ruling
 
TCD is correct. The ruling in this cast is very bad and foretelling an erosion of individual property rights all around the State. In a previous thread on this case I related how my family farm is constantly under siege by people who see open space as free for the use by all. Nothing could be further from the truth. My family bought the property, pay the taxes, pay the insurance and pay for the upkeep and maintenance. Itís ours to the exclusion of everyone uninvited. The only reason Shingle Shanty is at all ďnavigableĒ is because the landowner kept the stream clear of deadfalls for their own use. Itís no different than a woods road kept clear by the landowner for their own use. By the defendantís own admission a portage around rapids is required regardless of water level attesting to the limited navigability. The only reason the public would want to travel Shingle Shanty is because NYS acquired land on either end. Prior to that there was no need or desire. The defendantís claim that the stream has the ďpotentialĒ for commercial use as an argument to the navigability of it is absurd on itís face. I am also livid that the NYSDEC joined in the case and used public tax dollars to support a private person defend a civil suit that boils down to nothing but a case of trespass. I hope it is appealed again and I hope Brown looses.

DSettahr 01-26-2015 05:45 PM

Quote:

Originally Posted by charlie wilson (Post 226497)
Another good result, although the 3/2 vote is disturbing, and we'll probably need a Supreme Court decision to put this to bed. So it goes.

Do you mean the Court of Appeals? This case has already been through the state Supreme Court (the first trial). This outcome is from the Appellate Divisions of the Supreme Court.

In NY, the Court of Appeals is higher than the state Supreme Court: http://www.nycourts.gov/courts/structure.shtml

Zach 01-26-2015 06:23 PM

We have a very special and unique court system in this state. I still get mixed up about it even though I have lived here for long enough to have gotten it straight by now.
Zach


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