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Old 02-24-2011, 04:18 PM   #4
redhawk
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This is what I find particularly of interest and strong for Phil's and now the states case.

Page 13 --------------------------------
"3. The 1851 deed by which the state of new york conveyed the Mud Pond Parcel to Plaintiff's claimed predecessot in title did not convey to the purchasers the public easement of the right to travel on navigable waterways."

4. Plaintiffs Friends of Thayer Lake, LLC took title to the Mud Pond Parcel by deed dated December 27, 2007, which deed acknowledges and states that it is subject to the right of the public to navigate the surface waters of Lilypad Pond,, Mud Pond, it's outlet, and Single Shanty Brook, and states that the deed was subject to any and all easements whether of record or not, and the right of navigability is such an easement"

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Page 16 --------------------

"12. A waterway that is navigable-in-fact is considered a public highway notwithstanding that it's banks and beds are in private hands.
13. Waters are navigable-in-fact if they have practical utility for transport, whether for for trade or travel.
14. Recreational use of waters is within the traditional test of navigability"

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It also goes on to state that since outdoor recreation is a part of the Adirondacks economy as are Adirondack guides, it would also serve as a commercial use of the river.

I like that the state is now being proactive and suing them for the actions they have taken to deny the public access.

I think the irony here is that they may have opened up a can of worms with this uit that most property owners in similar situations feared. And if the plaintiffs lose, and are required to remove the signs and impediments to travel, the lawsuit will generate enough publicity to entice a great number of people to paddle the waters and see for themselves. That would mean that there would be volumes more traffic then there would have been had they been willing to reach a compromise, which the documents also make very clear they did not.

On the other side of the coin, if the plaintiffs do lose the case, I hope that the paddlers will respect the fact that they are only allowed to paddle through and portage and will otherwise respect the property owners legal rights. I also hope that the DEC will patrol those waters and enforce those rights. It's a 2 way street.

Hawk
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