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Old 01-26-2015, 06:46 PM   #21
RichieC
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TCD is correct. The ruling in this cast is very bad and foretelling an erosion of individual property rights all around the State. In a previous thread on this case I related how my family farm is constantly under siege by people who see open space as free for the use by all. Nothing could be further from the truth. My family bought the property, pay the taxes, pay the insurance and pay for the upkeep and maintenance. It’s ours to the exclusion of everyone uninvited. The only reason Shingle Shanty is at all “navigable” is because the landowner kept the stream clear of deadfalls for their own use. It’s no different than a woods road kept clear by the landowner for their own use. By the defendant’s own admission a portage around rapids is required regardless of water level attesting to the limited navigability. The only reason the public would want to travel Shingle Shanty is because NYS acquired land on either end. Prior to that there was no need or desire. The defendant’s claim that the stream has the “potential” for commercial use as an argument to the navigability of it is absurd on it’s face. I am also livid that the NYSDEC joined in the case and used public tax dollars to support a private person defend a civil suit that boils down to nothing but a case of trespass. I hope it is appealed again and I hope Brown looses.
I live on a trout stream, everyone, including you, have 15 feet on either side to fish it. I had no say in this, some previous landowner s signed it. However, the option would be to have it as it is in Europe, where if you wanted to fish from the stream bank, you'd have to pay each of the 15 people or so on my block that own to the bank just to fish some part of it- which as we all know, you have to do to properly fish and cover a steam… so I am all for it, even though I see strangers from time to time on my bank out my bedroom window. so I've done my part in this.

Anyways, I like the freedom to be able to be able to walk up a stream, all of our tax dollars go to its stocking and preservation. It belongs to everyone. While people have a 15ft right of way up the bank, they have no right to cross my land to get it to it. They have to access from the nearest access point, usually a public road.

Nobody has a right to walk your farm land, the two issues are specious at best. However, If someone owns a property and have accessed it for many years across your land, and you let them…or that has been the accessed for many years before you took ownership, you can't prevent their access to it. This is a good thing, but you may not like it, or it would be a mess everywhere. Many farmers I know, own various plots behind building lots or parcels owned by other people that would be land-locked… , do you think the farmer should be denied access to his land?

The portage around obstacles in a stream only go to the high watermark. That is the bed of the stream. Frankly, if the original issue had been ignored, it would have been better for him, this pushed it to a decision. That stream is on the far outer edge of his property, I seriously doubt he ever sees it. Know that his private lands adjoin public lands that are not easily accessible to the general public, his road crosses public lands. THis means he is taking advantage of owing an island in the middle of "our" ocean, and pays nothing on these ajoining lands which in effect belong to him alone at our expense. He has a very good thing there, and the waters he does use are far removed and off limits to the public as they are the gem of that property.

Thank god it came down as it did, or you'd see all sorts of issues popping up everywhere and you'd have hunting and fishing as they have in Europe, where only those that can afford it can do anything. You pay one fee to hunt, and if you actually shoot something, you have to buy it from the landowner.

Finally, I might point out that you don't own your land, (neither do any of us) you rent it from the state. Don't believe me? fail to pay taxes on it, and the real owners will kick you off in short order… and promptly rent it t the next guy. YOu'll still have to pay for any rent (taxes) you still owe.

So sorry, I am all for this, you are welcome in my back yard, and I will respect his land when I paddle that stream as I expect you to respect mine. I have never had any quarrel, except for some kids causing trouble.. but we came to an understanding… that is life.
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Old 01-26-2015, 10:35 PM   #22
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We beat the dickens out of this a few years ago. A trip to the Court of Appeals is likely.

It is a 3-2 decision with a very strong dissent by two highly respected appellate judges. The majority decision understands they are on very thin ice in their Footnote #5. Nobody apparently disagrees that the area in controversy never had the character of a public highway. It is only navigable because the Brandreths cleared the waterway (not in it's natural state) and the state itself has apparently treated the property, for years, as a private waterway.

One of the issues in the Court of Appeals will be whether the property rights are set at the time of the conveyance in 1851, (as has always been the case in property law), or if they are transitory or "morphable" by developments a century and a half later, in which case hundreds of years of property rights legal principals goes out the window.
Yes, it's been discussed at length. (and yes, it's headed to the Court of Appeals not IF but WHEN)

Which of plaintiff's rights are you referring to as "transitory" in this case?

I could be in error, but my understanding is that flowing water is not conveyed as part/with real property in NYS.

The public is not gaining a right to fish, wander around their land, trap, hunt, picnic, etc. (only to paddle the stream (flowing water), portaging only when necessary)

The issue the owners seemingly rely on for their case is that of access to the stream. Land which once was private (inaccessible) is now state owned and public is free to roam on adjacent lands and waters (and access parts of the waterway).

The point of no lengthy commercial history on this stream is also weak - it was inaccessible in the past, but now it is accessible to the public due to NYS spending tax money it collected from the residents (public) to purchase the adjacent lands (for the benefit of the public).

Furthermore, "not in its natural state" is also a weak argument at best. Water levels are not augmented by a man made dam or water releases. Any obstacles in a navigable waterway may be portaged around (common law)...

The question goes back to what if any right to privacy/exclusivity was/is granted to the land owner(s) that is now being taken away? This is a very complex issue in our times... (satellites/cameras/drones/air planes/etc)

To the issue of liability, a tort reform is the only way to address it. As it stands, the landowners are not charging a fee so they should be protected (as best as is currently possible).

To the issue of 'burden', DEC attempted to work with the owners to try out a trial (temporary) mutual arrangement and patrol the stream (on private lands) - this offer was rejected.

In some respects this case seems similar to some of the sportsman's clubs which were displaced by recent land acquisitions. (we can't and won't relocate to adjacent lands, we must preserve out exclusive access... which was never conveyed to begin with)

The original owners were not naive, they sought out a parcel with a source water body, they knew full well what implications a stream through the property had...
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Old 01-27-2015, 10:51 AM   #23
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Here is a picture of the signage the landowners posted after the route was opened up. Photo was taken in July 2013.

John M.
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File Type: jpg Adirondacks 094.jpg (157 Bytes, 198 views)
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Old 01-27-2015, 01:04 PM   #24
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The farm where I live and work has a stream running through it to which the state owns the fishing rights. They were bought by the state in the 1950s if I recall correctly. We have had some trouble with fishermen leaving trash behind but there seem to be more who pick up trash than who throw it, so overall it is not a problem. Legally access is only from the two points where the stream crosses the road but we let anyone who asks walk across the farm to the stream since that is a much shorter distance. They are welcome to park here in a number of areas but we don't allow anyone to drive through the fields. I don't fish myself but I am glad that people who want to come here and fish are able to, and I am glad to have various recreational opportunities in other places where people let the public cross their land, like at Blue Mountain or Castle Rock where the hiking trails begin on private land.
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Old 01-27-2015, 02:51 PM   #25
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The farm where I live and work has a stream running through it to which the state owns the fishing rights. They were bought by the state in the 1950s if I recall correctly. We have had some trouble with fishermen leaving trash behind but there seem to be more who pick up trash than who throw it, so overall it is not a problem. Legally access is only from the two points where the stream crosses the road but we let anyone who asks walk across the farm to the stream since that is a much shorter distance. They are welcome to park here in a number of areas but we don't allow anyone to drive through the fields. I don't fish myself but I am glad that people who want to come here and fish are able to, and I am glad to have various recreational opportunities in other places where people let the public cross their land, like at Blue Mountain or Castle Rock where the hiking trails begin on private land.
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Sounds like a good situation for all involved...

For argument's sake let's say the littering gets worse, or another problem pops up. You decide to post the land and ask the fishermen to not cross your land anymore. But they refuse and continue to trespass and your only recourse is the courts. The State decides to back the trespassers and you lose the lawsuit and the appeal at great expense. Now anyone is free to use your land as their own, except that you still have to pay the taxes, insurance, and clean up their litter. And then 5 years down the road you decide to sell the land, only to find out the value has plummeted because there is a court ordered recreational access easement in the middle of it.

How would you feel then?
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Old 01-27-2015, 04:11 PM   #26
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Sounds like a good situation for all involved...

For argument's sake let's say the littering gets worse, or another problem pops up. You decide to post the land and ask the fishermen to not cross your land anymore. But they refuse and continue to trespass and your only recourse is the courts. The State decides to back the trespassers and you lose the lawsuit and the appeal at great expense. Now anyone is free to use your land as their own, except that you still have to pay the taxes, insurance, and clean up their litter. And then 5 years down the road you decide to sell the land, only to find out the value has plummeted because there is a court ordered recreational access easement in the middle of it.

How would you feel then?
This is kind of a leading statement, as technically they aren't trespassers if the courts rule in their favor.

IMO, portraying it as a "loss of rights" really isn't accurate, as the rulings (as I understand them) are that the property owners never had those rights to begin with. I agree, however, that such a situation can be extremely frustrating and off-putting.

I would argue, though, that if land owners (or prospective land owners) aren't seeking out accurate information upon which to base decisions made about their own land, then there is little sympathy to be had when they unexpectedly find out that their rights to that land don't extend as far as they originally thought. Granted, without established legal precedent, the original buyers in the case of Shingle Shanty had limited opportunity to educate themselves about navigable waters and how those laws would affect the land that they purchased. In the modern era, though, I would have to imagine that information about the potential for public navigation of waterways across private property is information that could easily be gained. Even just awareness alone of the potential for such a situation can likely obtained through a single consultation with a licensed land surveyor.

I did some work inventorying properties for a short while, and I was astounded at the number of potential encroachments I found. It is obviously not uncommon for people to make improvements to their property without knowing where the boundary lines lay exactly. In doing so, many of them, with good intentions, inadvertently constructed fences, driveways, sheds, garages, and even in one case, part of a house, in such a manner that it was possible that these improvements were at least partially on property that they did not own. Definitely a different situation than the issue of navigable waters, but still a situation in which a landowners rights did not extend as far as they presumed, and a situation that a land owner could easily have been made aware of had they taken the time to seek out accurate information about those rights from a licensed surveyor.

Also, a lot of people don't have insurance policies that cover undeveloped portions of their land. By default, insurance generally only covers developed parts of a property, and many land owners don't realize this. (This is a frequent issue when land owners get sued for negligence.)

(Edited for accuracy- By law, only licensed surveyors are allowed to say where a property line is. As I am not a licensed surveyor, I can not legally say that any of what I saw was definitely an encroachment.)

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Old 01-27-2015, 05:22 PM   #27
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Good points, DS.

If I understand the history correctly, this land has been owned by the Brandreth family since 1851:

http://en.wikipedia.org/wiki/Brandreth_Park

I doubt there was any case law available then about recreational use of "navigable" waterways.

If I were in their position, my biggest concern would not be privacy, or litter, but liability, as you mentioned. The first "recreationalist" that gets hurt in there will be suing them on the basis that now that it's a public route, the owners have a "duty" to keep it safe or something like that.

If I were them, I would propose a settlement wherein anyone can pass through - no more contest on that; but the State provides an ironclad immunity from liability for anything that happens to anyone passing through.
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Old 01-27-2015, 05:57 PM   #28
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If I were in their position, my biggest concern would not be privacy, or litter, but liability, as you mentioned. The first "recreationalist" that gets hurt in there will be suing them on the basis that now that it's a public route, the owners have a "duty" to keep it safe or something like that.
I'm not 100% familiar with the specifics, but there is inherent liability protection in NY for land owners who open their land to recreational use without any expectation of compensation. I'm not sure if this is applicable to the issue of navigable waters, though, as I think that is a different situation entirely.
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Old 01-27-2015, 06:31 PM   #29
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It seems reasonable to me (though I have no knowledge about it) that if a stream is declared to be a public right of way it would not be the responsibility of the owner of the surrounding land to maintain it. Thus they would not be liable for anything that happened in it unless they had deliberately done something that a reasonable person would expect to cause harm to passers-by.
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Old 01-27-2015, 06:47 PM   #30
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It seems reasonable to me (though I have no knowledge about it) that if a stream is declared to be a public right of way it would not be the responsibility of the owner of the surrounding land to maintain it. Thus they would not be liable for anything that happened in it unless they had deliberately done something that a reasonable person would expect to cause harm to passers-by.
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Normally I would agree, but this is NY. I remember taking a business law class in college (my only law class) and the prof mentioned in passing about a burglar who fell thru a painted-over (black) glass skylight on the roof of an apt. building in NYC. He had no business being there and was going to break in anyway, but he fell thru onto the floor below and broke his leg. He sued and won and that started much of the legal BS today.
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Old 01-28-2015, 11:29 AM   #31
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Normally I would agree, but this is NY. I remember taking a business law class in college (my only law class) and the prof mentioned in passing about a burglar who fell thru a painted-over (black) glass skylight on the roof of an apt. building in NYC. He had no business being there and was going to break in anyway, but he fell thru onto the floor below and broke his leg. He sued and won and that started much of the legal BS today.
As the creek has been designated as a kind of public highway, the landowner does not own it. He can't unilaterally dam it, redirect it, nor dump anything into it. I don't think landowners who own on either side of any road running through or between parcels is responsible for accidents on the road either. Once again, as I have previously mentioned in this thread, my property is a variable depth parcel, I own to the middle of a constantly shifting creekbed, wherever it may fall! It has been designated as a public fishing stream, Yet according to homeowners and the bank, I have no added liability because of it... and the bank would be a professional worrier about such things if it were an issue.

If he lays a trap, or other intentional or dangerous feature, perhaps... The black painted skylight without railing or other safety precautions, was a tiger trap of sorts for any worker, child, or adult. His intent was obvious but thank god you can't be help responsible for thought crime... You can't put explosive or dangerous booby traps in your home either. They are a different situation entirely.
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Old 01-28-2015, 11:54 AM   #32
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Just to be clear, a stream can only be used as a "highway" of sorts if it is navigable, correct? And if so, how much of the stream must be navigable for it to be deemed navigable? Is it 50% or more? Or is it ambiguous?

If I have a small stream running through my land I assume it it was say half a foot deep that someone wouldn't be able to walk down it in rubber boots through my land using the technicality of it being a water highway.
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Old 01-28-2015, 11:57 AM   #33
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An important distinction is that not being liable doesn't necessarily prevent you from being sued anyways. You can still end up incurring high costs defending yourself in court, even if there is no legal ground upon which the lawsuit is based.

Insurance can cover these legal costs, but again, that is still a financial burden for the property owner to bear.
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Old 01-28-2015, 04:10 PM   #34
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An important distinction is that not being liable doesn't necessarily prevent you from being sued anyways. You can still end up incurring high costs defending yourself in court, even if there is no legal ground upon which the lawsuit is based.

Insurance can cover these legal costs, but again, that is still a financial burden for the property owner to bear.
I'm not pretending to be an expert, but from everything I have read, the creek below the high water line, is no longer classified as private property, it is a public "highway". The landowner has no more legal exposure then he ever did unless people leave the right of way and trespass on his land. But then, that is how it was before the ruling. If an obstacle is not man made, they won't have any grounds This ruling does not change any legal exposure then before.

The sad fact is our legal system rewards people with specious lawsuits behind the dubious shield of pretending to protect rights of legitimate claims of people who might be dissuaded in not suing wealthy litigants. Loser pays all court and legal fees, as they do in Europe, would result in ridiculous claims being an expensive risk and thus never brought to court in the first place. It would also result in many less lawyers, all needing to make payments on BMW's, big houses, etc., etc. .... who are willing to "throw the dice" to see what comes up. After all, maybe "they" will settle out of court- worth a shot. But lawyers, by-and-large, write the laws to benefit lawyers....

It's not an entirely new problem.. LOL

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Old 01-28-2015, 04:21 PM   #35
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Just to be clear, a stream can only be used as a "highway" of sorts if it is navigable, correct? And if so, how much of the stream must be navigable for it to be deemed navigable? Is it 50% or more? Or is it ambiguous?

If I have a small stream running through my land I assume it it was say half a foot deep that someone wouldn't be able to walk down it in rubber boots through my land using the technicality of it being a water highway.
No. The public does not have rights to all streams. Only those that fall under certain legal circumstances, or that have had the permanent rights purchased or arranged with a landowner.
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Old 01-28-2015, 05:59 PM   #36
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Loser pays all court and legal fees, as they do in Europe, would result in ridiculous claims being an expensive risk and thus never brought to court in the first place. It would also result in many less lawyers, all needing to make payments on BMW's, big houses, etc., etc. .... who are willing to "throw the dice" to see what comes up. After all, maybe "they" will settle out of court- worth a shot. But lawyers, by-and-large, write the laws to benefit lawyers....
I couldn't agree more.
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Old 02-07-2015, 12:50 PM   #37
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As one who has practiced and published on the law of navigable waters, who is also an avid canoeist and landowner, I am of the opinion that the majority opinion in this decision distorts settled principles of law, ignores the relevant facts, overemphasizes irrelevant facts, and does great damage to centuries-old, settled property expectations of landowners in New York State. The decision is almost ideological.

To me, the dissent nails the facts and law with precision.

The majority opinion literally holds that any stream is "navigable-in-fact" and subject to public usage as long as:

(1) someone can get access to it through public lands and float a canoe on part of it;

(2) even though that public access only came about a few years ago and was never historically present;

(3) even though the access is only via miles of arduous and multiple portages;

(4) even though the canoe-only passage is blocked in part by impassable rapids, requiring portage on the private lands;

(5) even though parts of the canoe-only floatable water is passable in places only because the private landowner clears out the dead-fall and sweepers for his personal use;

(6) even though no one, in actual history, ever considered this waterway to be public navigable waters until the State of New York acquired the adjacent lands 20 years ago; and

(7) even though this decision would change centuries-old expectations of private landowners whenever the State acquires adjacent private lands.

The general idea of the "public highway" character of navigable waters has always been that the general public could relatively conveniently use those waters for purposes of commerce or practical travel. The historical idea was that private property owners, in wilderness areas that did not yet have roads, couldn't block off access to those water routes that were the obvious and convenient ones for merchants to bring goods to market or for the general public to travel from place to place. Any good sized river or lake can meet this practical utility standard of navigability, and have.

But to say that any small creek or series of muddy ponds, no matter how remote, no matter how far off the beaten track of any population center, no matter how difficult to access, can become a "public highway" just because some late 20th century recreational canoeist, after the State has purchased adjoining properties, can bushwhack in and float a canoe on part of the water, distorts the historical navigability concept beyond recognition. Worse, it completely reverses settled expectations of the landowners of every canoe-floatable stream in New York.

And why limit the decision to canoe-floatable streams? Expert kayakers now run 190 foot waterfalls and every class 5 rapid in America. What creek that can float an 8 foot, 24 inch wide kayak is immune from this NY Appellate Court opinion? None, logically, for all those creeks are susceptible to recreational kayaking.

I don't know the philosophical or ideological makeup of the NY Court of Appeals, but I hope they reverse this disastrous opinion. All it does is give a few miles of extra paddling to a few heroic canoe hobbyists, while doing violence to settled law and common sense.
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Old 02-07-2015, 01:55 PM   #38
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I find this entire discussion very interesting because if you think about it, ultimately, none of us 'own' any of the land in this country we may think we own, even if we outright paid for it. Stop paying your property taxes for some time and then you will find out who really owns 'your' land.

And even so, the concept of land ownership was so foreign to native Americans that I'm sure they would have amusingly proposed the Dutch after buying Manhattan for some wampum if they'd also like to buy the sky above it as well. I think in this day and age, with the amount of people that we have on this planet, situations such as this one make things alot more complex. I can think or pros and cons for both sides of this yet I can't come to a conclusion one way or the other whether this is indeed a net victory or a net loss. Much to contemplate...
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Old 02-07-2015, 06:43 PM   #39
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Well said

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As one who has practiced and published on the law of navigable waters, who is also an avid canoeist and landowner, I am of the opinion that the majority opinion in this decision distorts settled principles of law, ignores the relevant facts, overemphasizes irrelevant facts, and does great damage to centuries-old, settled property expectations of landowners in New York State. The decision is almost ideological.
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Old 02-07-2015, 10:02 PM   #40
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Well said
Agree.
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