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Old 03-03-2011, 08:52 PM   #61
redhawk
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I think the problem with the DEC is that you may get multiple opinions depending on who you got out on that brook. [edited out river]

I've had some experience with the DEC where you get conflicting information but anything they tell me to do I pretty much follow because they do have quite a bit of enforcement power.

I am really surprised, considering the language used in the state's intervention, that if these barriers were as they say the DEC didn't immediately dismantle these horrendous obstructions.

I hope for the owners sake there isn't a group of tire tubers with beer floats getting ready to exercise their rights in this case. I'm sure that's their ultimate fear not a couple environmentally conscious paddlers.
Then they would have been best served to not post or erect barriers and draw publicity as a result of it.

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Old 03-06-2011, 02:41 PM   #62
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The Adirondack Daily Enterprise ran a poll this weekend on their website:

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Should boaters in general be allowed rights of passage on navigable waterways through private property?
The options were Yes, No, and Undecided. As of right now, Yes has 72% of the votes, No has 24%, and Undecided has 5%. Pretty interesting... certainly not a scientific study by any means, but it would seam that the majority of locals support the opening of navigable waters through private lands.
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Old 03-06-2011, 05:51 PM   #63
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The Adirondack Daily Enterprise ran a poll this weekend on their website:

The options were Yes, No, and Undecided. As of right now, Yes has 72% of the votes, No has 24%, and Undecided has 5%. Pretty interesting... certainly not a scientific study by any means, but it would seam that the majority of locals support the opening of navigable waters through private lands.
yes, but I wonder what the average person considers to be "navigable". It is a fairly subjective term ... which is why there is the issue at hand.

When I think navigable, I think... Erie Canal, St Lawrence River, Lower Hudson etc...
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Old 03-06-2011, 05:56 PM   #64
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yes, but I wonder what the average person considers to be "navigable". It is a fairly subjective term ... which is why there is the issue at hand.

When I think navigable, I think... Erie Canal, St Lawrence River, Lower Hudson etc...
Good point sp I wouder how many would object to jet skis heading up SSB or any other brook of that size. I personally wouldn't however if it is good enough for one group it should be good enopugh for all.
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Old 03-06-2011, 06:03 PM   #65
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One could be forgiven for concluding that the extent of property rights here are to be determined by public opinion, as opposed to the law.

There was a fine gem in the Times Union today that regurgitated the AG's suggestion that paddlers are being stopped and harassed, and which stated "Now the DEC has succeeded in getting the attorney generalís office to take its side in its quest to expand the law to open up Shingle Shanty and similar waterways to everyone."

So, the Times Union supports the DEC and Attorney General's "quest to expand the law" to the detriment of property owners. At least they aren't shy about it and don't make any effort to conceal what this is about for some.
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Old 03-06-2011, 10:23 PM   #66
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Good point sp I wouder how many would object to jet skis heading up SSB or any other brook of that size. I personally wouldn't however if it is good enough for one group it should be good enopugh for all.
Lake Lila and Little Tupper already prohibit motorized boats. So that thought has no merit here. Just because a waterway is navigable doesn't mean it is open to jet skis or other motorized craft.
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Old 03-07-2011, 10:34 AM   #67
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Interesting and maybe a seperate thread but how can the law allow for non-motorboat lakes when recreational activity is considered in the NIF rules.

Very interesting.
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Old 03-07-2011, 01:30 PM   #68
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Interesting and maybe a seperate thread but how can the law allow for non-motorboat lakes when recreational activity is considered in the NIF rules.

Very interesting.
Exactly. I don't believe when we are looking back to the 1800's and calling waters NIF that they could ever imaging that jet ski's etc would be around.
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Old 03-07-2011, 02:29 PM   #69
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Don't be silly guys, only paddlers have rights.
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Old 03-07-2011, 06:33 PM   #70
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I seem to remember something about "customary modes of travel" as a clause in the navigable in fact common law. I wonder if Glenn McGrady could shed some light on this.
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Old 03-08-2011, 05:55 PM   #71
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My 2 cents

I rarely comment on this forum but have followed this particular issue since it started. My family has owned a good size chunk of ground for 100 years. We are constantly asking trespassers to leave. Why is it that anytime people see open space they think it is free to use? Hikers, picnickers, Ďnaturalists,í ATV owners all use our property like it is publicly owned and free for the taking. We are the ones who bought the land, we are the ones who pay the taxes, we are the ones who maintain it and we are the ones who insure it. We take good care of the property and take pride in our ownership. Itís ours to the exclusion of all others unless invited in. I might also add that I am an avid canoeist that paddles in the Adirondacks every season. I have plenty of fun without trespassing.

I earn my living as a Professional Land Surveyor licensed in NYS. I have been called as an expert witness in several court cases both in NY Supreme Court and Federal Court. I am not an "arm chair expert" like most everyone else on this forum.

As the law reads now the case with Phil Brown boils down to a simple trespass case. Phil forced his way through private property and then used his magazine and this website as a bully pulpit to brag about his exploits daring the landowner to call his bluff. He now wants the readership to help pay his legal fees. If I drove my car onto Philís front lawn, opened up a picnic basket and fired up the boom box Iím sure Phil would call the cops in a heartbeat. The only difference is the size and remoteness of the property involved and a percevied right of access.

If Phil wanted to open up this brook to public access he should have been the Plaintiff not wait to be sued and be the Defendant. Or better yet use the $50-100K in legal fees to purchase an access easement through it rather than spend it all in court. 95% of all lawsuits are settled before they go to trial. My prediction is this one will too and resolve nothing beyond a resolution of SSB and maybe not even resolve SSB.

As a resident and taxpayer in NYS, a state that is flat broke, I think it is outrageous that the NYSDEC and now even the Attorney Generalís office is involved in this case. If NYS has money to spend it would be better spent to re-hire some of the DEC people that got laid off or pay down some State debt.

Fisher39, AlgonquinBob and others are 100% correct. Phil was wrong, his method was wrong, his tactics are wrong and he deserves to loose and I hope he does. I will contribute to the Plaintiff not to Phil Brown.

I will not respond to the slings and arrows surely to be thrown my way. I have to spend my time earning a living in order to pay my taxes to pay the salaries of lawyers to prosecute a lawsuit that will provide little or no benefit to 95% the the residents of New York.
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Old 03-08-2011, 07:11 PM   #72
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.
.
.
I have to spend my time earning a living in order to pay my taxes to pay the salaries of lawyers to prosecute a lawsuit that will provide little or no benefit to 95% the the residents of New York.


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Old 03-08-2011, 07:31 PM   #73
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Originally Posted by WaterRings View Post
I rarely comment on this forum but have followed this particular issue since it started. My family has owned a good size chunk of ground for 100 years. We are constantly asking trespassers to leave. Why is it that anytime people see open space they think it is free to use? Hikers, picnickers, Ďnaturalists,í ATV owners all use our property like it is publicly owned and free for the taking. We are the ones who bought the land, we are the ones who pay the taxes, we are the ones who maintain it and we are the ones who insure it. We take good care of the property and take pride in our ownership. Itís ours to the exclusion of all others unless invited in. I might also add that I am an avid canoeist that paddles in the Adirondacks every season. I have plenty of fun without trespassing.

I earn my living as a Professional Land Surveyor licensed in NYS. I have been called as an expert witness in several court cases both in NY Supreme Court and Federal Court. I am not an "arm chair expert" like most everyone else on this forum.

As the law reads now the case with Phil Brown boils down to a simple trespass case. Phil forced his way through private property and then used his magazine and this website as a bully pulpit to brag about his exploits daring the landowner to call his bluff. He now wants the readership to help pay his legal fees. If I drove my car onto Philís front lawn, opened up a picnic basket and fired up the boom box Iím sure Phil would call the cops in a heartbeat. The only difference is the size and remoteness of the property involved and a percevied right of access.

If Phil wanted to open up this brook to public access he should have been the Plaintiff not wait to be sued and be the Defendant. Or better yet use the $50-100K in legal fees to purchase an access easement through it rather than spend it all in court. 95% of all lawsuits are settled before they go to trial. My prediction is this one will too and resolve nothing beyond a resolution of SSB and maybe not even resolve SSB.

As a resident and taxpayer in NYS, a state that is flat broke, I think it is outrageous that the NYSDEC and now even the Attorney Generalís office is involved in this case. If NYS has money to spend it would be better spent to re-hire some of the DEC people that got laid off or pay down some State debt.

Fisher39, AlgonquinBob and others are 100% correct. Phil was wrong, his method was wrong, his tactics are wrong and he deserves to loose and I hope he does. I will contribute to the Plaintiff not to Phil Brown.

I will not respond to the slings and arrows surely to be thrown my way. I have to spend my time earning a living in order to pay my taxes to pay the salaries of lawyers to prosecute a lawsuit that will provide little or no benefit to 95% the the residents of New York.
I understand your view entirely. You're a property owner and most side with the Brandeth's in this case for all the logical reasons.

And unless you've actually been involved in litigation concerning Navigable-in-Fact under common law in NY state, you are just another armchair lawyer, just like the rest of us. No smarter, no dumber, No more or less expert then anyone else here, with the exception perhaps of Paradox 6.

And yes, there are a lot of people who trespass backpackers, hunters, fishermen, atv'ers, snowmobilers, and paddlers as well in cases where there is no question of N-I-V. Every endeavor always has people who have no respect for others.

However, I find you description of Phil and what he did distasteful, unfair, uninformed and slanted, based on your own values. In the first place it's just not that easy to sue to establish N-I-F. If it were I am sure that there are enough parties around that would have already done so, some with deep pockets. Sometimes acts have to be committed to force a court case, and yet it wasn't Phil that brought the suit, it was the property owners, why do people keep forgetting that fact? And since it is a belief in what the common law defines as N-I-F that motivated Phil to paddle SSB in the first place, do not be so quick to accuse him of trespassing or breaking the law. I could just as easily put all kinds of labels on the owners of SSB for posting and putting a cable across the brook and impeding traffic that is legal under N-I-F.

And I'll bet a dime to a dollar that if it was the other way around, that the AG was entering the suit to enforce the rights of some property owners, you wouldn't have an issue with it.

You have your beliefs, Phil has his. It's about time there was some kind of clarification. That's what this is ultimately all about.

Hawk
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Old 03-08-2011, 08:47 PM   #74
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Only one comment ... 99.999%

YUP YUP YUP!!!!!

What a waste of time except for the periodical industry....
Which is in a steep decline....rate bases are done......
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Old 03-08-2011, 09:01 PM   #75
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Well said WaterRings.
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Old 03-08-2011, 11:43 PM   #76
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I am not an "arm chair expert" like most everyone else on this forum.
I've been seeing these words mentioned here more and more often whenever discussion/debate gets contentious. Do we really need to be "real experts" in order to have and voice an opinion? The DEC has "real experts" in the field of forestry and in managing our wilderness areas, but what would happen if they did away with the public commenting sessions for UMPs and other management decisions simply because many members of the public are "armchair experts" (and there certainly are quite a few of them!)? To belittle or lessen the opinions held by others simply because you have more knowledge and experience in the topic of discussion, and then to further belittle the entire discussion as a whole and refuse to participate in it further isn't going to sway those who disagree with you.

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As the law reads now the case with Phil Brown boils down to a simple trespass case.
How does the law read now? And, more importantly, how does your interpretation of the law imply that Phil's case is a simple trespass case? The only argument that you really give to back this up is that you are an expert in the field of surveying. That's like me saying "Apples are a fruit, because I'm an expert on fruits." It might be true, but I won't be convincing anyone who isn't an expert on fruits if they think about it.

That's certainly not to say that your argument is without merit, you just don't provide enough information for the reader to determine the validity of the facts upon which your opinion is based. I'm definitely curious to know more about your viewpoint, especially since as a licensed surveyor there is a lot you could share on the topic that everyone else here would certainly benefit from hearing. You state quite emphatically that you have a lot of knowledge about the subject, and just as emphatically that Phil is in the wrong. What you don't state is why, and without this key link between the extensive knowledge base you have and your opinion, your post won't change anyone's mind.

Help us to not be "armchair experts" and gain a better understanding of the situation.

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And I'll bet a dime to a dollar that if it was the other way around, that the AG was entering the suit to enforce the rights of some property owners, you wouldn't have an issue with it.
I agree with Hawk... I'm confused that those on the "private property rights" side of the discussion can argue that one of the negative aspects of the case is that it benefits so few people. If Phil loses, won't that have helped to solidify the rights of every New York State resident who owns property? If private property rights, and the defense of those rights, is what this case is about, then doesn't it potentially benefit a group of people far larger than the group of recreational paddlers who would use this route?
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Old 03-09-2011, 12:23 AM   #77
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I agree with Hawk... I'm confused that those on the "private property rights" side of the discussion can argue that one of the negative aspects of the case is that it benefits so few people. If Phil loses, won't that have helped to solidify the rights of every New York State resident who owns property? If private property rights, and the defense of those rights, is what this case is about, then doesn't it potentially benefit a group of people far larger than the group of recreational paddlers who would use this route?
The argument of many to few is being used to invoke an emotional response in favor of the land owners, since it's easy to imagine hordes of many people invading your private property/space. Your, in my opinion, correct recitation of the reciprocal component to the many to few argument is counter to invoking the emotional reaction that is being lobbied for when the few become the many.
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Old 03-09-2011, 04:54 AM   #78
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The rights of the many vs the few and the rights of the few vs the many, are what our legal system was/is designed to protect. However, those rights are largely already defined. The argument that an internet poll or newspaper survey should weigh in on the outcome, means those historically defined rights no longer matter. Just a more modern evolution of the lynch mob. The law of private property protected the rights of the individual against the masses. The law of easements protects the rights of the public against the few.

Water Ring's position is really the first direct statement of the landowners perspective in this discussion. Is there some emotion in it, absolutely, but no more emotional than many of the pro-paddling statements made so far. The funny thing about emotions is that we all have them, they belong to us and nobody has the right to say they are not valid to us. So when you start the analysis, take the emotion out of it, assume both sides believe the correctness of their position.

Just keep in mind that most prospective jurors who actually get notices for jury duty and who actually show up, the people who may ultimately decide the factual issues in the case, are probably going to be property owners.
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Old 03-09-2011, 07:43 AM   #79
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I agree with Hawk... I'm confused that those on the "private property rights" side of the discussion can argue that one of the negative aspects of the case is that it benefits so few people. If Phil loses, won't that have helped to solidify the rights of every New York State resident who owns property? If private property rights, and the defense of those rights, is what this case is about, then doesn't it potentially benefit a group of people far larger than the group of recreational paddlers who would use this route?
I was letting my cynical side show through. The 0.001% to which I was referring would be the lawyers, not the paddlers or the land owners. I hope I'm wrong.
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Old 03-09-2011, 08:35 AM   #80
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The rights of the many vs the few and the rights of the few vs the many, are what our legal system was/is designed to protect. However, those rights are largely already defined. The argument that an internet poll or newspaper survey should weigh in on the outcome, means those historically defined rights no longer matter. Just a more modern evolution of the lynch mob. The law of private property protected the rights of the individual against the masses. The law of easements protects the rights of the public against the few.
and that is the difference between our Republic and a 'democracy'.
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