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Old 02-15-2012, 11:29 PM   #1
DSettahr
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Public access to isolated parcels of State Land

It's my understanding that in New York State, there is a right to access your own land. This means that even if your property is not adjacent to any public highway/road, you still have a right to maintain a right-of-way across other property to get to yours. You may not have the right to motor vehicle access, but you do have that right to access even if it's just by foot.

(Someone please correctly me if I'm wrong on this- I tried to do a search for property rights in NY, but the best I could come up with was the PRF website, which is horrendous to navigate and isn't exactly an unbiased source).

I'm curious- does anyone know if this right is also extended to the public with regards to isolated parcels of state land? If you look on any hiking map, you can find numerous parcels of Wild Forest land that is not contiguous with other parcels of state land, and is not adjacent to any public highways. So what rights, as New York State citizens and therefore owners of this land, do we have in accessing it?

I'm curious because one of the long term hiking goals I've been thinking about is trying to visit every single parcels of State Land in the Adirondacks. Obviously, if I cannot access a good number of them, I might not be able to ever reach this goal.

So... has anyone here had any experience with trying to access those isolated parcels of state land?
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Old 02-16-2012, 07:25 AM   #2
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Quote:
Originally Posted by DSettahr View Post
It's my understanding that in New York State, there is a right to access your own land. This means that even if your property is not adjacent to any public highway/road, you still have a right to maintain a right-of-way across other property to get to yours. You may not have the right to motor vehicle access, but you do have that right to access even if it's just by foot.

(Someone please correctly me if I'm wrong on this- I tried to do a search for property rights in NY, but the best I could come up with was the PRF website, which is horrendous to navigate and isn't exactly an unbiased source).

I'm curious- does anyone know if this right is also extended to the public with regards to isolated parcels of state land? If you look on any hiking map, you can find numerous parcels of Wild Forest land that is not contiguous with other parcels of state land, and is not adjacent to any public highways. So what rights, as New York State citizens and therefore owners of this land, do we have in accessing it?

I'm curious because one of the long term hiking goals I've been thinking about is trying to visit every single parcels of State Land in the Adirondacks. Obviously, if I cannot access a good number of them, I might not be able to ever reach this goal.

So... has anyone here had any experience with trying to access those isolated parcels of state land?
As far as the right of way for private land, I think you will find that it must be in continuous use. If it is not used for a period of time, then the right of way is revoked.

The people who bought the house I used to live in in ells ran across this problem with the town. And it wasn't even remote. This was a 40 foot strip of state land between Algonquin Road and the house.

I don't think that your theory extends to going through private land to reach state land. I believe that the state needs to have an easement in order to allow access by the public across private land.
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Old 02-16-2012, 08:48 AM   #3
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As far as the right of way for private land, I think you will find that it must be in continuous use. If it is not used for a period of time, then the right of way is revoked.

I don't think that your theory extends to going through private land to reach state land. I believe that the state needs to have an easement in order to allow access by the public across private land.
Ah, that makes sense. Is there any definition of what is necessary to have "continuous use?" Is it a pretty strict definition that, for example, stipulates a certain amount of visits per year, or is it more open to interpretation?

I would imagine that some of these parcels must get regularly visited by those who own land adjacent to them- would that be enough to fulfill the criteria of continuous use?
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Old 02-16-2012, 10:02 AM   #4
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IIRC, the continuous use provisions that Hawk mentioned are enforced pretty strictly. I can remember several other "in town" cases. And I don't think you can get a "right of way by use" across the private land based on the private landowners own use; that just doesn't make sense. The only situation where you are likely to be able to get that kind of right of way would be where the private owner had routinely been granting verbal permission for years, and the route was in popular (maybe weekly?) and well known use. And even then, there are plenty of cases where those kinds of permissions have been revoked.

Buying a deeded easement is the best way to ensure access.

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Old 02-16-2012, 11:33 AM   #5
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IIRC, the continuous use provisions that Hawk mentioned are enforced pretty strictly. I can remember several other "in town" cases. And I don't think you can get a "right of way by use" across the private land based on the private landowners own use; that just doesn't make sense. The only situation where you are likely to be able to get that kind of right of way would be where the private owner had routinely been granting verbal permission for years, and the route was in popular (maybe weekly?) and well known use. And even then, there are plenty of cases where those kinds of permissions have been revoked.
Cathead Mountain might be a good example. The R&G club that owns the mland gave access to the public and to the state (to maintain their radio towers) for years. Then there was/is a dispute over the club hauling logs out over a section of the state land and not being allowed to use motorized equipment. Hence the club made the mountain legally inaccessible to everyone but it's members.

As far as the other instance goes, No, just use by the owner won't cut it. The town took the area of land although there was a driveway through it (which at one time had been a town road) and was still in use.
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Old 02-16-2012, 12:18 PM   #6
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Brendan, look up adverse possession. Particularly the 'open and notorious' component.
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Old 02-18-2012, 10:16 AM   #7
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I dont think adverse possession would apply apply in any of situations discussed so far as that has to do with claiming title to property but look up prescriptive easements. Of course none of this really helps the original poster unless he's willing to continuously use someone elses property, without their knowledge to access state land and then go through the legal processes. Now I'm really curious to know how one would access these landlocked state parcels.
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Old 02-29-2012, 01:03 PM   #8
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Interesting. I always assumed that both the private and public pockets came with some sort of deeded right of way. The isolated pockets of state land without obvious access through a road / trail that I typically see are a square with one corner touching a corner of another rectangular parcel.

Why would the state - or anyone for that matter - buy a piece of land that they could not access?
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Old 02-29-2012, 01:21 PM   #9
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Why would the state - or anyone for that matter - buy a piece of land that they could not access?
The state might do it with an eye on future purchases or easements which could connect or link up in some way to the piece under question.
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Old 02-29-2012, 01:25 PM   #10
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I can see looking to the future - but wouldn't some state officials, at least, need to be access the state property regardless if it was open to the public? If the state - or whoever - bought a piece of land that didn't have some provision for accessing it I would imagine it would be bought for next to nothing because there would certainly not be a market for it.

I would imagine that the best source would be to call the DEC ranger in charge of that area and ask if / how someone could access the parcel.
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Old 02-29-2012, 01:37 PM   #11
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I dont remember the specifics but when I bought my property in the adks 7 years ago i had a related discussion with the realtor on these type of situations and he seemed to be very knowledgable. Try contact a realtor. They really should be up on these things as they do sell land locked pieces of property.

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Old 02-29-2012, 02:45 PM   #12
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Detached Forest Preserve Parcels

There are many small detached parcels of Forest Preserve lands that are seperated from each other, and isolated from any other Forest Preserve land.

In many cases these lands were acquired by tax sale, (forfeit), or sometimes through a gift to New York State.

Because of Article XIV, Section 1 these parcels cannot be "leased, sold or exchanged."
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Old 02-29-2012, 06:13 PM   #13
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Hope this helps rather than confuses

Often, when you start looking at the law, you get more questions than answers. FWIW, the law of easement by necessity is fairly settled: Even where there is no pre-existing use or deeded access, an easement may arise by implication as a matter of necessity. An easement of necessity is the result of the presumption that when a party conveys property, he or she conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he or she still possesses. An easement by necessity is created when a common grantor conveys a parcel which is entirely surrounded by the land from which it was severed, or by that land and the land of third parties, and is separated by that land from the highway. For instance, the owner of land abutting on a highway who sells a portion of the land without an outlet to the highway gives the grantee a right-of-way by necessity to the highway. A party claiming an easement by necessity must show that there was unity and subsequent separation of title. No property owner can have a way of necessity over the land of a stranger. A stranger in this context means a person whose land has no prior connection in titles to the land which needs a way of access. Interestingly, where there is access to property over navigable water which the property owner has the right to use, a way of necessity over contiguous lands may be denied, though a way by land would be more convenient. I am virtually certain that the doctrine of easement by necessity would not extend to the public with regards to isolated parcels of state land.
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Old 02-29-2012, 06:28 PM   #14
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Clarification

I should have said that my strong hunch is that the doctrine of easement by necessity would not extend to the public with regards to isolated parcels of state land. And, of course the member of the public would have to do a title search and find a prior unity of title first to have a shot at raising this as a good faith quasi-defense to trespass, which is not practical, obviously. It is more of an open question as to access by state officials in their official duties to administer the lands. Please don't ask me why I conclude this. It's just a judgment call based on some experience. Just trying to be of some help here. Cheers.

P.S. My thougths are on the situtaiton where there is no deeded access and the question is whether there might be an implied easement. Implied easements are disfavored. I do not think any other kind of implied easement would be pertinent here.

This is not legal advice.
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Old 02-29-2012, 06:42 PM   #15
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Interesting questions. Just thinking "aloud" here... Is it probable that the previous private owner of the parcel in question had an easement across another private parcel to access their parcel? If so, would that easement then transfer to the State? Not sure if I am using the correct terminology here. Any of you legal eagles understand my thoughts here?
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Old 02-29-2012, 06:48 PM   #16
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It would be in the deeds

If so, the easement terms would need to be recited in the deeds or other recorded instrument that would in turn need to show up in a title search. Otherwise, no.
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Old 02-29-2012, 07:00 PM   #17
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If I owned a large track of land that I intended to leave unmolested, I would love to GIVE it to the STATE,if no one could access it but me.....
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Old 02-29-2012, 07:15 PM   #18
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If I owned a large track of land that I intended to leave unmolested, I would love to GIVE it to the STATE,if no one could access it but me.....
There you go, subdivide a parcel into two portions, a large interior parcel and a 1 meter perimeter so you maintain private ownership of all access. Sell/gift that interior parcel to the State.
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Old 02-29-2012, 08:17 PM   #19
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Need to retain air overflight rights, as well...most of us could jump over a 1 meter perimeter.
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Old 03-01-2012, 12:33 PM   #20
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... So what rights, as New York State citizens and therefore owners of this land, do we have in accessing it?

I'm curious because one of the long term hiking goals I've been thinking about is trying to visit every single parcels of State Land in the Adirondacks. Obviously, if I cannot access a good number of them, I might not be able to ever reach this goal.

So... has anyone here had any experience with trying to access those isolated parcels of state land?
Why don't you just contact the property owners and ask permission? I'd be extremely surprised if any property owner denied you access - if you asked permission first.

If someone does deny you access, then that might be the appropriate time to look into the "rights" question. But if I absolutely had to visit that parcel and my two options were to risk getting a $250 trespassing ticket or spending god knows what trying to establish my "rights" in court, I think the rational choice would be the former.
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