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Old 02-20-2015, 07:44 PM   #61
serotonin
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Richie...

Are you the guy who throws bottles of cold beer across the creek to freezing fishermen on the other side who are getting skunked?

If so, those bottles sink faster than we'd like to think.
We didn't spill a drop and of course carried them out.
But full cans float.

Cognac does too.

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Old 02-20-2015, 11:00 PM   #62
Glenn MacGrady
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There are many hundreds of more difficult routes commonly traveled by thousands of people every year. The loop mentioned in other current threads of the Oswegatchie to Cranberry back to Lows is 20 times more difficult.

For the record, is a typical and fairly easy backcountry canoe route.

Commerce happened all over the Adirondacks in every direction. Trappers, hunters, guides conducting business of transporting "sports". Trade, etc. Logging on other stretches.

Shingle shanty was certainly used to get to Lila and Stillwater and to Tupper and the Raquette river in the past before the roads were built, and not all of those people were doing it for fun.
Richie, you're bloviating, and irrelevantly.

Those are simply opinions of yours. They might even be facts. But, even if facts, they are irrelevant because they do not appear to be part of the agreed-upon factual record in this case.

The facts as stated by both the majority and dissenting opinions is that the only evidence of historical usage of the Wilderness Waterway was (a) by the landowners themselves for hunting, fishing, trapping and bringing in their personal supplies; (b) some canoe access for a brief period in the late 1800's when the landowners gave permission for some canoeing, which was quickly retracted because of abuse; and (c) some recreational wilderness canoeists, including Phil Brown, and two DEC officials after the public Lila Traverse was completed in 1998.

Both the majority and dissenting opinions, and all the parties, agreed that there was no possibility of public access to the Wilderness Waterway at any time in history until the late 20th century when the State bought tracts to the north and south of the Wilderness Waterway to create the so-called Lila Traverse.

Finally, all parties agree that canoes are the "only" craft that can navigate the two miles of the Wilderness Waterway -- that not even a rowboat can do it.

Those -- not your assertions -- are the only record facts in the case regarding the navigability issue, which is properly stated by the dissent as practical utility for commercial transport or for highway travel by the general public. The majority evidently thinks recreational wilderness canoeists prepared for multi-day journeys with multiple portages constitute the general public. The dissent doesn't.

Not that it's relevant to this litigation, but I'm curious about your claim that the Cranberry-Oswegatchie loop is 20 times more difficult than the Lila Traverse. Would that make the Oswegatchie more or less "navigable" than the Wilderness Waterway, assuming it was entirely on private lands? Which branches? How far up? Is there public access from Cranberry Lake to the Oswegatchie, assuming we agree Cranberry Lake is navigable? Is there evidence that the general public traveled up the 2+ miles of rapids from Cranberry Lake to Inlet as a highway having practical utility?

The Oswegatchie would be an interesting litigation.
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Old 02-21-2015, 03:04 AM   #63
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Originally Posted by Glenn MacGrady View Post
My main argument and policy point of view is this:

Do we really want a system of property rights law that divests private landowners of their exclusive rights to a two mile shallow stream, even though there is virtually no evidence that anyone ever used the shallow stream as a "highway" for practical commerce, travel or even recreation:

-- when the US conveyed the surrounding lands to the state 227 years ago; or

-- when the state conveyed the surrounding lands into private ownership 164 years ago; or even

-- at any time prior to the State's acquisition of adjacent private lands about 17 years ago; and

-- where there is a publicly-maintained portage trail around the shallow stream,

just because, now that there are adjacent public lands with seasonal public access roads, a very small percentage of the recreational paddling community, who, by the very fact that they are on the Lila Traverse, evidence a liking for multiple portage canoe trips, want a perpetual legal right to paddle the short shallow stream instead of taking one other available public portage around it?
My understanding is that the private property owners used the waterway in question to facilitate the transportation of equipment necessary for the construction of camps on their property, and that such use falls under the definition of "commercial use." I have no idea if this is correct or not. Perhaps someone could clarify this for me?
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Old 02-22-2015, 01:22 AM   #64
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We had an exceedingly difficult time fishing near Richie's property one day,
due to weather, timing, lockjaw.
But it became far more pleasant when he came out.

I look forward to meeting more people like him.
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Old 02-23-2015, 09:57 AM   #65
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I think Glenn and I have been saying the same thing from the beginning, not that he needs any defending.

We can all hold whatever opinions we have about the situation. The issue for lawyers is not our personal opinion, but in looking at the evidence, what facts are supportable and given those facts, how do they fit into the legal principles that exist.

When we started discussing it a couple of years ago, we really had no idea of the evidence and what facts were, in fact, supportable by the evidence.

All the evidence that is going to be part of this case has been produced and is part of the record. Judge Aulisi, the trial court judge, made whatever findings of fact he made and applied them to the legal principles he thought should apply.

If you look at all of the opinions dealing with whether or not there is an easement, almost all of the opinions recite the same key elements necessary to create an easement, they have been: (I'm paraphrasing)

1. Whether or not, in it's natural state;
2. The waterway in question, because of its practical utility, had taken on the character of a public highway. It is really this "public highway" notion that underlies the justification for saying there is an easement.

3. Traditionally, as part of basic property law, and not always stated in the opinions, this has been as of the time of the conveyance, in this case from the state to first person in the chain of title.

What Glenn and I have said, and as the well written dissenting opinion points out, this "public highway" character was never really supported by the evidence.

As a practical matter, unlike other areas of the law, property law principles are, and need to be, very stable. Allowing a claim of an easement because of some limited recreational use in the present, 150 years after the conveyance to the Brandreths, when there has never been any history of use as a public highway, really turns property law upside down. The implications of allowing such a claim in the present are really quite enormous.

These cases are very fact specific. There are, I'm sure, properties that are improperly posted or where landowners are claiming rights they really didn't have, that would have been better "test cases," to improve more access to more areas for more people. Whether or not this was a good case will be up to the Court of Appeals, I still don't see the evidence to support a public highway claim referenced in the majority opinion.

I just see a lot of collateral damage from a lot of landowners, far away from Shingle Shanty Brook posting more property and denying access because they feel the need to protect their property and their rights as they perceive them.

The fact the property may have been useful to the Brandreth's in the past in their own use of their property, does not support a claim of public use, any more that your own use of your driveway on your property would make your driveway a public roadway.

Last edited by Paradox6; 02-23-2015 at 10:01 AM.. Reason: typos
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Old 02-23-2015, 10:46 AM   #66
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In the historical context, though, wasn't posting of land done primarily to prevent others from using that land for hunting and fishing, and not to prevent access for travel?
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Old 02-23-2015, 11:59 AM   #67
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I can't be sure of the history, but most No Trespassing sign that I see today, while they may mention hunting, fishing or trapping, usually also finish with "trespassing for any purpose."
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Old 02-23-2015, 02:57 PM   #68
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DSettahr - Not really...When I was a kid, we never saw the number of posted signs along virtually every road ...Actually the problem, IMHO, stems from NY's approach to tort law. Without spending more time on it than I can afford to spend, now...landowner liability used to be rather formulaic, based upon one's status in one of three categories...was the plaintiff an invitee (guest,customer), a licensee(repairman, mailman) or a trespasser? In the case of a trespasser, there was originally no duty owed by the owner to a trespasser, except not to affirmatively injury the trespasser, and there was no liability. These fairly rigid distinctions were largely abandoned over several decades and liability determinations developed over time into a system based upon whether or not it was reasonably foreseeable a person would be on the land. The Penal Code was changed to where it basically creates a presumption that a person on unposted land enters with a "privilege," but posting removes the presumption, creates the offense of criminal trespass, which in turn has some bearing on the issue of what is foreseeable. The General Obligations Law was modified to create some protections for landowners when their property is entered for recreational uses, but the statute is riddled with exceptions and even if the defense based upon the statute is viable, it usually doesn't stop the landowner from getting sued and having to go through the process of being sued.

Posting, trying to keep people off in the first instance and calling the cops, is simply safer for the landowner, unfortunately. Ultimately, we all end up paying for the miscalculations of a few.
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Old 02-23-2015, 07:56 PM   #69
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Quote:
Originally Posted by serotonin View Post
We had an exceedingly difficult time fishing near Richie's property one day,
due to weather, timing, lockjaw.
But it became far more pleasant when he came out.

I look forward to meeting more people like him.
Your sense of humor escapes me… but maybe I'm reading it wrong and you aren't really trying. Must be the cognac and beer talking… or the residual effects.



Cheers & tight lines, hope that lockjaw clears up.

Last edited by RichieC; 02-23-2015 at 09:31 PM..
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Old 02-23-2015, 09:24 PM   #70
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Richie, you're bloviating, and irrelevantly.

Those are simply opinions of yours. They might even be facts. But, even if facts, they are irrelevant because they do not appear to be part of the agreed-upon factual record in this case.

The facts as stated by both the majority and dissenting opinions is that the only evidence of historical usage of the Wilderness Waterway was (a) by the landowners themselves for hunting, fishing, trapping and bringing in their personal supplies; (b) some canoe access for a brief period in the late 1800's when the landowners gave permission for some canoeing, which was quickly retracted because of abuse; and (c) some recreational wilderness canoeists, including Phil Brown, and two DEC officials after the public Lila Traverse was completed in 1998.

Both the majority and dissenting opinions, and all the parties, agreed that there was no possibility of public access to the Wilderness Waterway at any time in history until the late 20th century when the State bought tracts to the north and south of the Wilderness Waterway to create the so-called Lila Traverse.

Finally, all parties agree that canoes are the "only" craft that can navigate the two miles of the Wilderness Waterway -- that not even a rowboat can do it.

Those -- not your assertions -- are the only record facts in the case regarding the navigability issue, which is properly stated by the dissent as practical utility for commercial transport or for highway travel by the general public. The majority evidently thinks recreational wilderness canoeists prepared for multi-day journeys with multiple portages constitute the general public. The dissent doesn't.

Not that it's relevant to this litigation, but I'm curious about your claim that the Cranberry-Oswegatchie loop is 20 times more difficult than the Lila Traverse. Would that make the Oswegatchie more or less "navigable" than the Wilderness Waterway, assuming it was entirely on private lands? Which branches? How far up? Is there public access from Cranberry Lake to the Oswegatchie, assuming we agree Cranberry Lake is navigable? Is there evidence that the general public traveled up the 2+ miles of rapids from Cranberry Lake to Inlet as a highway having practical utility?

The Oswegatchie would be an interesting litigation.
First- Lake Lila was there forever, the Adirondacks were widely crossed way back before anybody owned them. A years income could be packed in a canoe… guide boats and canoes were used widely to make a living using the network of rivers and waterways and small streams/brooks/ponds/lakes, etc., etc.. Why considering a small stream such as this , a "navigable waterway" formerly used for "commerce" is not unusual at all in the Adirondacks. Rivers like the West Canada, not appearing high enough, was flooded intentionally, by simultaneous dam releases all along the route in conjunction with spring high water … to float logs down to make it a commercial route.

No, no water craft other then something like a canoe, perhaps a guideboat/kayak- are indeed the only type of craft in question, as it is illegal to have a motor in either the Whitney Wilderness or the Five Ponds Wilderness. However, a guide boat is a row boat, and is very capable on this trip, if you don't mind scratching it.

Trying to get a handle on if you are aware of any of these stretches… Thinking the Oswegatchie and Shingle Shanty as equal is a clue. I was using the Oswegatchie as an example of a "heroic" loop and because it can be connected to this one. 20 times more difficult is being very kind IMHO. They are not really in the same ballpark. And all on state land- so who would be litigating whom.. and for what? And why would that cross anybody's mind to do so? Frankly the concept of suing somebody for being on their land is foreign to me… other then something set intentionally as a hazard. That thought processes is also telling.

And I'm not talking about the particular legalities of the case, that is out of my pay grade, even if if it was, it wouldn't matter. I can point out that apparently legal minds whose opinions do in fact matter directly on this, seem to have seen it differently.. perhaps in fear of other routes' status because of their decision.

What I can attest to is the physical situation at hand, as I have been on both borders of it… and thus know it , and thought how nice it would be to continue on in my boat. I can also point out that Brandereths have a good deal, so do the people who sold Lila, and if I understand correctly, they still retain ownership of Nehasane. The elephant in the room and the gem that may hinge on this ruling is that route down to Stillwater. Shingle shanty being, more or less, a minor issue that will set a precedence, or so I have read. In fact. I'll bet they are not happy with the Brandereth's opening this whole can of worms up… I've been on both sides of that border as well. Keeping my fingers crossed- so are a lot of people who read this thread…

So my question to you is… have you ever been in a canoe? Have you ever been on a trip where you carried it farther then then you paddled it? Or are you more interested in posted signs and lawyers?

Alright I'm done… This poor horse has been beaten past dead. I don't think those judges are listening to a single thing any of us have said anyways! LOL


(That's a guideboat I am rowing in my pic, been to the cable in Shingle Shanty in it from Lila)

Last edited by RichieC; 02-23-2015 at 10:03 PM..
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Old 02-24-2015, 10:39 AM   #71
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I'll bet they are not happy with the Brandereth's opening this whole can of worms up...
The Brandreth's didn't open this can of worms....
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Old 02-24-2015, 01:09 PM   #72
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I'll bet they are not happy with the Brandereth's opening this whole can of worms up...

My guess is this comment is in regard to the Brandeth's willingness to pursue this as a legal matter instead of just ignoring Phil Brown's actions. I'm not trying to take sides here. That's just my interpretation of RichieC's comment. The way I see it, if this case ultimately comes down on the side of paddlers the adjacent landowners, who are currently keeping folks from paddling between Lila and Stillwater, will find themselves in the same boat as the folks who own the Brandeth property. My bet is they were hoping this would all just go away so they wouldn't have to deal with it too.

That's all for now. Take care and until next time...Be well.

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Old 02-24-2015, 09:45 PM   #73
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My context for analysis is what I perceive to be the historical general meaning of the navigability-in-fact criterion: Was the water body in question, in it's natural state, a practical highway for the public to engage in commercial travel or personal convenience travel -- as of the date the State entered the Union, which was 1788 for New York. This last requirement seems to be ignored in this litigation, but it's in many U.S. Supreme Court opinions defining the federal "title test" for navigability, which says that waters not navigable at the time of statehood were not subject to the Public Trust Doctrine when they were conveyed by the federal to the state government.
Thank you for the explanation. It gives perspective to your legal analysis (even though not everyone agrees with it).

On the separate question of navigability of Beaver River, I've read that there's documented history of log driving down from Lila. Which would place it in a different legal category. (with very little if any bearing from Shingle Shanty decision)
Also, there are no cables (that I'm aware of) or gates or deliberate impediments down that route. The signs along the bank state something to the effect that Nehasane Lake is private with no state land and asks persons not to trespass (which I thought was perfectly reasonable)
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Old 03-11-2015, 11:25 AM   #74
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Beaver River between Lila and Stillwater

Hey folks,

Just having read Phil's article again (http://www.adirondackexplorer.org/st...orbidden-river), I wonder if any brave souls out there would want to do a Lila - Stillwater trip this spring? I suppose the risk is the same one Phil took on, and it could result in a lot of grief..... Does anyone have an informed opinion as to the effect of the Shingle Shanty decision on waters such as the section of the Beaver between Lila and Stillwater?

Thanks,

Dave
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Old 03-11-2015, 11:29 AM   #75
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well, dang, I was looking at page one of four! after reading "some" of the long list of posts, I would like to retract my previous question! Looks like it is a wait and see game at this point, still....

Dave (still learning how to use a forum, I guess....)
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Old 03-26-2015, 01:07 PM   #76
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"goes to New York’s highest court"

read all about it on NCPR
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Old 02-10-2016, 12:44 PM   #77
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Next Chapter

If anyone is still following this,

Navigation Rights Case Heading To NYS Court Of Appeals

"Since its publication, amicus briefs have been filed on both sides, and the Court of Appeals has scheduled arguments for March 24"
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Old 02-11-2016, 01:38 PM   #78
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Thanks for posting the link. I'm still interested to see where all of this goes. I haven't heard anything about it for a while but I guess there wasn't much to hear. The machinations of the law seem to take a while.
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Old 02-18-2016, 01:11 AM   #79
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Planning to do a solo trip on the Whitney loop - Oswegatchie traverse in May (Little Tupper to "inlet"). Even though I enjoyed the DEC's .8 mile carry from Lilypad to Shingle Shanty on my previous trips, I'll take the Mud Pond route this time, pending a court decision that still allows it.
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Old 05-10-2016, 06:26 PM   #80
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Update - today New York's high court, the Court of Appeals, sent the case back to the lower court for a trial. Phil Brown's victory is now on hold pending the outcome of the trial and, presumably, a new round of appeals.

Link to decision: http://www.courts.state.ny.us/ctapps...6-Decision.pdf
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