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Old 06-24-2011, 06:28 AM   #3
Join Date: Dec 2005
Location: Washingtonville, NY
Posts: 255
What is not discussed and what is not entirely clear from the opinions referenced is whether or not a waterway is navigable in fact, that is, “if it is so far navigable or floatable in its natural state and its ordinary capacity, as to be of public use in the transportation of property," is based upon it's historical use, its present usability, the date the property was conveyed from the state to the first private owner in the chain of ownership, the date of the Morgan opinion (1866) or some other date. Generally, real property rights are supposed to be very stable, the principles the Courts apply generally do not like suddenly shifting rights or suddenly changing interpretations of the law. I don't think the Courts are going to change property rights every time Pete Hornbeck or Charlie develops a smaller or lighter canoe. The better legal arguments are for the long term historical use time frames.
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