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AG intervenes in Shingle Shanty case

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  • #91
    Originally posted by Pumpkin QAAD View Post

    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
    "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

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    • #92
      I said I would not chime in again but I changed my mind.

      In my opinion it’s 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 he’s 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 don’t 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 it’s 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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      • #93
        Originally posted by WaterRings View Post
        In my opinion ...
        Thanks for sharing!

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        • #94
          Originally posted by WaterRings View Post
          See you on the water - real water, not SSB.

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          • #95
            Originally posted by WaterRings View Post
            In my opinion it’s 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 he’s 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 don’t 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 it’s 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
            "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

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            • #96
              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....
              Be careful, don't spread invasive species!!

              When a dog runs at you,whistle for him.
              Henry David Thoreau

              CL50-#23

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              • #97
                Originally posted by redhawk View Post
                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.

                Comment


                • #98
                  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.

                  Comment


                  • #99
                    Originally posted by sp_nyp View Post
                    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.

                    Originally posted by sp_nyp View Post
                    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
                    "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

                    Comment


                    • [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.

                      Comment


                      • Originally posted by Paradox6 View Post
                        Civil disobedience is standing up against a government authority. The other folks are just private citizens.
                        Has it occurred to anyone that the real culprit in this case is the state (Government) for not making a classification and that Phil's action forced their hand?

                        I'm well aware of what Civil Disobedience is. I'm not sure that people on either side really understand what this case is really about.

                        Hawk
                        "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

                        Comment


                        • Apparently the fears of an underfunded defense were unfounded - the Explorer's defense fund seems to have been an overwhelming success. The Explorer is no longer soliciting donations on their legal defense fund page - http://www.adirondackexplorer.org/st...efensefund.php

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                          • Any news regarding this suit?

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                            • The state’s effort to intervene in the trespassing case against Adirondack Explorer editor Phil Brown hurts private property owners, the lawyer representing the plaintiffs in the lawsuit argued early last week. “This case is asking the court to say, basically, ‘Have canoe, will travel,’” said Dennis Phillips, the Glens Falls attorney representing the Friends of Thayer Lake and the Brandreth Park Association. In a hearing before Justice Richard T. Aulisi in Fulton County Supreme Court, Phillips argued the state’s stance would give the public the right to travel down just about any waterway that can be floated upon by canoe. “That is a very extreme » Continue Reading.
                              Last edited by Pumpkin QAAD; 12-27-2011, 12:49 PM.
                              A society grows great when old men plant trees whose shade they know they never shall sit in

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