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Old 01-19-2018, 05:56 PM   #90
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Join Date: Mar 2008
Posts: 60
I agree with Glenn MacGready. His take on the whole case, in his several posts, in my opinion, is correct.

When the Court of Appeals referred the case back down to the trial court they were, in effect, saying that the decision by the Appellate Division was defective. It did not fully develop answers to at least five items. Both parties wanted the matter decided “as a matter of law” not a trial. The Court of Appeals correctly noted that the volume of material that the parties submitted including maps, documents, photographs, letters, articles, guidebooks, affidavits etc., etc. were complicated or contained too “conflicting or inconclusive evidence” to render a determination based on a matter of law. The five items the decision listed that needed to be more fully addressed were:
1. The waterway’s historical and prospective commercial utility.
2. The waterway’s historical accessibility to the public
3. The relative ease of passage by canoe.
4. The volume of historical travel.
5. The volume of prospective commercial and recreational use.

Quoting the Court’s Opinion, “Collectively, these factual assessments present material considerations that, left unresolved, permit more than one conclusion to be drawn concerning the Waterway’s practical utility.”

I my opinion because the Court of Appeals faulted the decision of the Appellate Division it’s value as a citation in future tests of navigability is weak at best. The preceding trial court (Supreme Court) decision was completely neutered. The whole sorted affair is back to square one as if the original suit never happened.

With the whole matter back at the trial court any one of several things could happen. The whole thing could be settled with the litigants deciding that “half an apple is better than no apple.” With the costs incurred to date by both sides and the potential for even greater costs in the future a settlement is a viable option. In New York at least 90% of all cases before trial courts are settled – they never go to trial despite the bluster of the lawyers involved. If Hamilton County only has one Supreme Court judge a change of venue could be requested and the new trial started before a different judge in a new location. The plaintiff could sell NYS a restricted easement or sell a piece of the property in fee thus ending the case or the trial could simply begin again with the outcome appealed by one party or the other.

I guess we will just have to wait and see.

My interest in this case is three fold: I am a Licensed Land Surveyor in NYS with 40 years experience including work as an expert witness in a number of real property disputes involving title issues and adverse possession. Secondly, my family has owned a farm here in NYS for over 100 years that is still in operation and run by the sixth generation. Our sovereignty and private use of the property is continually tested by people who see open space as free for the use of everyone even though they don’t own it. Lastly, I love to canoe in the Adirondacks and have done so for years always respecting the private property of others.

It will be interesting to see how it all shakes out.
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