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Old 03-09-2011, 09:21 AM   #81
fisher39
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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?
Property owners should be thankful for the opportunity to fend off the State's "quest to expand the law to open up Shingle Shanty and similar waterways to everyone" as the Times Union so candidly puts it? Is this some sort of 'what doesn't kill you makes you stronger' argument?

The only thing that property owners should be happy about is that this dispute is finally entering the realm of due process. Let's hope it stays there until a meaningful decision is made, and that the apparent efforts of the AG, the Sierra Club, the Times Union and others to rhetorically bludgeon the property owners into abandoning their effort to get a fair hearing are unsuccessful.
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Old 03-09-2011, 11:38 AM   #82
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The argument that an internet poll or newspaper survey should weigh in on the outcome, means those historically defined rights no longer matter.
I never said that the newspaper poll should weigh in on the outcome. I just thought it was interesting and decided to share it.

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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.
There's nothing wrong with displaying emotion. I wasn't faulting Waterring's statement because he was emotional. As a land owner who has had problems with trespassers in the past, he certainly has sympathy with the land owners in the Single Shanty Brook case, and no one should fault him for feeling the way he does.

My response was doing just what you say- take the emotion out of it. On the surface, his post looks like an impassioned statement that one would feel cold to disagree with. When you strip away all the emotion in his post, though, there's not really much there. He makes some good statements about the impracticality of pushing this issue and spending public money on such an issue when the state is broke, but as to exactly why Phil is in the wrong, he doesn't elaborate, other than to say Phil is wrong and he knows this for sure becuase he's "not an armchair expert." It's too bad, because it sounds like he has a lot of experience with similar situations that we could all benefit from having him share.

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Property owners should be thankful for the opportunity to fend off the State's "quest to expand the law to open up Shingle Shanty and similar waterways to everyone" as the Times Union so candidly puts it? Is this some sort of 'what doesn't kill you makes you stronger' argument?

The only thing that property owners should be happy about is that this dispute is finally entering the realm of due process. Let's hope it stays there until a meaningful decision is made, and that the apparent efforts of the AG, the Sierra Club, the Times Union and others to rhetorically bludgeon the property owners into abandoning their effort to get a fair hearing are unsuccessful.
If the property owners are so sure of their legal standing, shouldn't they be glad to have the opportunity to prove it in court? The cost of doing so aside (and I agree that there are certainly better things money can be spent on), isn't it a good thing for the issue to be finally taken to a court of law where it will be decided on definitely? Don't all property owners stand to benefit from a ruling in favor of the land owners, as it will solidify their rights through precedent? That was my point.
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Old 03-09-2011, 11:44 AM   #83
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I would argue that the state intervention benefits noone let alone .0001%.

There is no arguement that private landowners own that stretch of SSB and the owners did not "license, invite, or privilege" Phil's presence.

Under that definition, a person does not transgress when he enters or stays in a place open at the time to the public, unless he is specifically warned not to enter or remain. The fact that some portions of the premises were open to the public, including the defendant, does not mean that he has a privilege with reference to closed-off portions.

Phils and the state's argument is that the waterway should not be closed-off they do not dispute ownership.

That is why it's a simple trespass case.


Said firmly from my armchair.


RE Deshatt: I don't know anyone that wants to defend rights or privileges they currently enjoy in a court of law. Actually that would be unwise, said politely.
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Old 03-09-2011, 12:39 PM   #84
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RE Deshatt: I don't know anyone that wants to defend rights or privileges they currently enjoy in a court of law. Actually that would be unwise, said politely.
If they feel those rights are being violated, I sure bet they do.
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Old 03-09-2011, 01:25 PM   #85
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If the property owners are so sure of their legal standing, shouldn't they be glad to have the opportunity to prove it in court? The cost of doing so aside (and I agree that there are certainly better things money can be spent on), isn't it a good thing for the issue to be finally taken to a court of law where it will be decided on definitely? Don't all property owners stand to benefit from a ruling in favor of the land owners, as it will solidify their rights through precedent? That was my point.
Whoever said that wasn't the case? WaterRings didn't seem to be objecting to the fact that this dispute has ended up in court, but rather the fact that this dispute was generated in the first place, and that the DEC and the AG have intervened on behalf of the activists when such a trivial percentage of New York taxpayers would benefit from the state's "quest to expand the law."
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Old 03-09-2011, 01:59 PM   #86
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Only one comment ... 99.999%
Randomscooter, you're a numbers guy, right? Any guesses as to the percentage of the people of the state of New York who have benefited from the various SSB threads here on ADKForum?
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Old 03-09-2011, 02:27 PM   #87
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randomscooter, you're a numbers guy, right? Any guesses as to the percentage of the people of the state of new york who have benefited from the various ssb threads here on adkforum?
.0007
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Old 03-09-2011, 02:58 PM   #88
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.0007
you are far too generous
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Old 03-09-2011, 03:06 PM   #89
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you are far too generous
You are probably right, I underestimated the 20 million state population
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Old 03-09-2011, 03:22 PM   #90
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Cost of course is an important consideration, and I'd say the cost is commensurate with the benefit.

Last edited by fisher39; 03-09-2011 at 05:03 PM..
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Old 03-09-2011, 05:11 PM   #91
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RE Deshatt: I don't know anyone that wants to defend rights or privileges they currently enjoy in a court of law. Actually that would be unwise, said politely.
ah and that's the gist of it. The paddlers feel their rights are being violated by not having access to SSB. So it becomes necessary to have a lawsuit to enforce those rights. Ironically, it's the property owners who have brought the suit.

Hawk
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Old 03-10-2011, 03:08 PM   #92
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I said I would not chime in again but I changed my mind.

In my opinion itís a simple trespass case because that is essentially what Phil is being sued for. He paddled SSB which crosses property owned with clear title by a private owner. When the local police declined to arrest him they sued. Phil is banking on the navigation issue to justify and sanctify his actions and heís hoping that it will have repercussions beyond SSB . If you strip out all the emotion and his intentions for going in the first place all that is left is a trespass case.

My point in stating that I felt that the case would be settled without going to trial is based on my experiences in court on other real property cases. Every trial lawyer will tell you that a settlement, even if you donít get everything you want is better than risking a trial with an unknown outcome. Think about it. Why would you put your entire case, all your risk, money etc. into the hands of six jurors who were too stupid to get themselves out of jury duty? And if itís a bench trial with only the judge making the decision then you are placing all your faith into one person whose background and education will play a part in the decision. Judges are supposed to be impartial but their opinions on things are a product of their life experiences just like the rest of us. 95% of all cases are settled and a settlement will not set any precedent for navigation beyond SSB even if that issue is discussed. Eventually the plaintiff or the defendants will make a business decision and seek a settlement. It boils down to dollars and cents.

You also have to remember that most lawyers and hence most judges who were private lawyers before being appointed or elected to the bench are woefully under educated in real property law. If the judge does not want to spend the time to truly understand the case he/she will press the parties very hard to settle it.

See you on the water - real water, not SSB.
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Old 03-10-2011, 05:15 PM   #93
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In my opinion ...
Thanks for sharing!
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Old 03-10-2011, 05:20 PM   #94
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See you on the water - real water, not SSB.
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Old 03-10-2011, 06:28 PM   #95
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In my opinion itís a simple trespass case because that is essentially what Phil is being sued for. He paddled SSB which crosses property owned with clear title by a private owner. When the local police declined to arrest him they sued. Phil is banking on the navigation issue to justify and sanctify his actions and heís hoping that it will have repercussions beyond SSB . If you strip out all the emotion and his intentions for going in the first place all that is left is a trespass case.

My point in stating that I felt that the case would be settled without going to trial is based on my experiences in court on other real property cases. Every trial lawyer will tell you that a settlement, even if you donít get everything you want is better than risking a trial with an unknown outcome. Think about it. Why would you put your entire case, all your risk, money etc. into the hands of six jurors who were too stupid to get themselves out of jury duty? And if itís a bench trial with only the judge making the decision then you are placing all your faith into one person whose background and education will play a part in the decision. Judges are supposed to be impartial but their opinions on things are a product of their life experiences just like the rest of us. 95% of all cases are settled and a settlement will not set any precedent for navigation beyond SSB even if that issue is discussed. Eventually the plaintiff or the defendants will make a business decision and seek a settlement. It boils down to dollars and cents.

You also have to remember that most lawyers and hence most judges who were private lawyers before being appointed or elected to the bench are woefully under educated in real property law. If the judge does not want to spend the time to truly understand the case he/she will press the parties very hard to settle it.

See you on the water - real water, not SSB.
Better post.

remember, it's the landowners who chose to risk the lawsuit, not Phil Brown.

And it has nothing to do with real property law, it has to do with Common Law and navigability issues.

Hawk
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Old 03-10-2011, 06:31 PM   #96
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Does floating logs down stream in the spring flood. both natural and man made, play a factor in this?

How many years ago was that....
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Old 03-10-2011, 06:57 PM   #97
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remember, it's the landowners who chose to risk the lawsuit, not Phil Brown.
I think that is the issue at the heart of things.

Due to the non-obvious status of SSB, perhaps Phil should have:

1) Inquired with the authorities and/or owners of the surrounding property before-hand to determine what the status actually was.

I'm no law expert, but it would seem that until/unless that section of SSB is proven to be open to the public, what he did would be considered trespassing - which is why he finds himself in court.

2) If he was not happy with the results from step 1, then HE should have taken the case to court to challenge that outcome.

If one thinks a law or statute is in question, the way to challenge that in our current legal system is within the courts - not in the field.

-----------------------------------

It means the difference between...

Challenging a regulation in court

OR

Defending one's self against criminal charges by means of challenging a regulation in court.

-----------------------------------

I can see how, by choosing the course he did, it leads some to speculate as to possible underlying motives... or his state of mind.
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Old 03-10-2011, 07:38 PM   #98
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Like I said

in my first post: Brown should have been the plaintiff not the defendant. If his motive was truly noble and he was trying to achive a benefit for everyone he should have used a different approach than trespassing to dare a response from the landowner.

I'm done here. I'm heading to the shop to work on another canoe - a much better use of my time.
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Old 03-10-2011, 09:05 PM   #99
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I think that is the issue at the heart of things.

Due to the non-obvious status of SSB, perhaps Phil should have:

1) Inquired with the authorities and/or owners of the surrounding property before-hand to determine what the status actually was.

I'm no law expert, but it would seem that until/unless that section of SSB is proven to be open to the public, what he did would be considered trespassing - which is why he finds himself in court.
I think that the status of that section of SSB was already contentious. The DEC considering it as NIF while the property owners contended that it wasn't.

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2) If he was not happy with the results from step 1, then HE should have taken the case to court to challenge that outcome.

If one thinks a law or statute is in question, the way to challenge that in our current legal system is within the courts - not in the field.

-----------------------------------

It means the difference between...

Challenging a regulation in court

OR

Defending one's self against criminal charges by means of challenging a regulation in court.

-----------------------------------

I can see how, by choosing the course he did, it leads some to speculate as to possible underlying motives... or his state of mind.
Here is the problem. The agencies involved as well as the courts seemed to be reluctant to classify it once and for all. In order to challenge something in a civil suit, the court has to agree to hear the case. from past histor f cases like this it would appear that the courts were reluctant to do so.

Therefore the case had to be "forced" by taking the actions that Phil did. It's an American thing, one of the things that Americans say "makes America great". So Phil only did something that goes back to Revolutionary times and has been practiced by Americans ever since. It called "Civil Disobedience".

hawk
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Old 03-10-2011, 11:04 PM   #100
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[QUOTE=redhawk;166160 So Phil only did something that goes back to Revolutionary times and has been practiced by Americans ever since. It called "Civil Disobedience".

hawk[/QUOTE]

Civil disobedience is standing up against a government authority. The other folks are just private citizens.
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