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Old 01-26-2018, 02:10 PM   #101
snapper
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I'm not saying I'm correct here but I thought I remembered reading in the original arguments that Shingle Shanty was used at some point to bring down logs in a commercial operation used by the property owners. If that's true, wouldn't that make the "commercial use" argument mute? I'm not a lawyer (and I don't play one on TV) but if that's the case, it would seem to me the land owner opened the door to navigability.

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

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Old 01-26-2018, 11:29 PM   #102
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Navigability aside, I found quite interesting that (according to published reports) The Nature Conservancy added a note to the deed with intent of public passage...

“subject also to the right of the public to navigate the surface waters of Lilypad Pond, Mud Pond, the outlet leading from Mud Pond to its confluence with Shingle Shanty Stream, and Shingle Shanty Stream northeasterly from its confluence with the Mud Pond outlet to the property line between the lands herein conveyed and lands owned by the State of New York.”

Is there a full text of the Appellate Division decision that had that rejection reason (foot note):
“as no private ownership interests affecting such rights had been acquired or could be conveyed.”

When TNC held the deed, did they not have recreational rights? is that the legal reasoning here?
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Old 01-29-2018, 10:23 AM   #103
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I said I wasn’t going to reply again but I couldn’t help myself.

When real property is conveyed it is not unusual to see clauses added in that note that there exists rights of others, unrelated to the transfer, in the property for specific reasons such as, “subject to a power line easement…”subject to mineral rights…”subject to vehicular access…etc etc”…you fill in the blank., but all of them presuppose that the right already exists prior to the conveyance and they are included in the deed to make the purchaser aware that some other party has a limited right in the property. In the present case there was no established pre-existing right of the public so the TNC should not have included it. You can not sell something, or subject a sale to something if you don’t own it or control it in the first place. I re-read the Appellant Division opinion to refresh my memory and there was no mention of a “subject to” anywhere in it.

The notion also that a commercial use had already been ongoing because of the landowners use of the stream and hence navigability already established is also bogus. Just because the landowner used the stream to transport personal items back and forth to his hunting camp (there being no road) does not confer any rights to the public in and to the stream. The dissenting opinion in the Appellant Division made a rather clear statement that the use by the landowner of the stream was merely his exercising of his rights of land ownership not a demonstration of navigability.

Now I will be quiet.
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Old 01-30-2018, 03:08 PM   #104
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WaterRings - Not trying to rile you up but again, if my memory is correct, the landowners used the stream for a commercial operation they set up. If that's true, than I think navigability was proven whether their operation made money or not. Again, I'm not a lawyer but at some point doesn't a certain level of common sense have to prevail? If you establish a commercial operation, even if it's just for your own personal gain, it would seem to me that you're the one who originally opened Pandora's Box. Not much you can do about it now when you don't want folks using the stream.

Just my thoughts. Take them for what they're worth.

Until next time....be well.

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Old 02-01-2018, 05:04 PM   #105
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“Once more unto the breach, good friends, once more…”

Sorry Snapper but I don’t agree.

Of the five items that the Court of Appeals listed as needing to be adjudicated in a future trial were two that addressed whether the “Waterway [had any] historical and prospective commercial utility” and “the volume of prospective commercial and recreational use.” The key word being “commercial.” A commercial use, by people other than the riparian owner, has long been one of the standards in determining whether a waterway is Navigable by Law.

The dissenting opinion from the Appellant Division, which the judges at Court of Appeals most certainly read, stated it as follows, and I quote:

“Finally, to suggest that the private owners’ personal use of the Waterway reflects a capacity for commercial use also ignores its remote, isolated nature. Notably, based on the Waterway’s narrow, meandering path and impassable rapids, it is incapable of transporting any timber, a traditional test for navigability. Based on the lack of any nearby roads or population centers, and the portages required to reach the Waterway, the only goods that would be transported through it would be for personal use. The proof the plaintiffs’ predecessors allowed individuals to travel through the Waterway for a period of time in the 1800s before closing access to it, and that individual members of plaintiffs used the Waterway for hunting, trapping and carrying supplies to their isolated hunting camp, merely reflects their private property rights in the Waterway and does not establish any practical utility to the general public for travel or transport. Nor does the fact that a back country guide may propose to take canoeists through the Waterway if it were to be adjudicated as navigable prove the waterway’s capacity for common use by the general public.
In summary, we cannot agree that the feasibility of using the Waterway for recreation and the fact that the public is capable of reaching it through a series of lakes, ponds, streams and portages render it a practical means of transportation so as to be navigable-in-fact. To conclude that they do would, in our view, unnecessarily expand our navigability-in-fact doctrine and destabilize settled expectations of private property ownership by opening up remote, unpopulated, privately owned bodies of water as long as the public has some way, however arduous and recently acquired, of gaining access to them.”

There was never any historical documented commercial use of the waterway. Any future commercial use would have to come from guide services sponsoring canoe or kayak trips from Little Tupper Lake to Lake Lila or vice a versa. Now I’m not the smartest guy in the world but let’s think for a minute. Everyone agrees that this route is a “back country” or “wilderness” trip. It entails nearly 15 miles of water travel broken up by six portages totaling at least three miles. It cannot be easily done in one day, Brown himself took two days and he should be considered as an experienced canoeist and camper. The average guy who employs a guide service is not. It seems to me if you have limited canoeing and camping experience, so limited that you need help from a guide, limited or no equipment of your own and don’t own your own boat this type of trip should not be on your list. If I was a guide looking at a group of “City Slicker” clients standing in front of me I wouldn’t pick this trip either. If you have the experience, equipment and know how to do this route you don’t need a guide. If you need a guide pick a more civilized route that allows you to “bail” when the weather turns sour or when some dope breaks his leg because he never climbed over a beaver dam before. My point is simply this – future commercial use is limited at best and strains the definition.

If there is no commercial use it fails the test and is not Navigable by Law.

Now I will shut up. I promise.
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Old 02-02-2018, 08:40 AM   #106
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This might be a little off topic, but how do the Whitneys get away with gating off portions of forked lake?
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Old 02-02-2018, 10:46 AM   #107
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(Continuing off-topic)

From the NY State Whitney Area Stewardship Plan (1998):

"While recent court cases have established the public right to
traverse private lands by boat on specific waters in
other parts of the State, the question of the legal right
of the public to navigate any of the waters that enter
private lands from the William C. Whitney Area has
not been resolved. Private property owners may take
legal action if the public enters their property by boat
beyond State land boundaries."

The plan also includes an action to "Clarify public rights of navigation." But there is no stated schedule for completion of that action. So "how they get away with it" is as agreed in the 1998 NY State plan, at least for now.

opinion/ This is the thanks that landowners get for allowing access to part of their land. There will always be the "it's never enough" people that want access to all of it. This makes it less likely that the public will get more access in the future. /opinion
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Old 02-02-2018, 10:49 AM   #108
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Quote:
Originally Posted by JohnnyVirgil View Post
This might be a little off topic, but how do the Whitneys get away with gating off portions of forked lake?
This is a gray area. If you were to pass thru the gate, you'd end up in a dead-end section of Forked Lake that is surrounded by more Whitney land. You wouldn't, AFAIK, be able to paddle thru to another stream or pond that is "navigable" (there's that term again) and you'd be crossing their property.

Also, AFAIK, there is no title to running water. Is the upper part of Forked Lake, running? IDK. If you started at the state campground, on forest Preserve land, there are those that would argue that you'd have a right to paddle on all the water you want, as long as you don't get out of the canoe.

It's all about what is considered "navigable".

The Native Americans had it right, no one owns the land.
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Old 02-02-2018, 10:52 AM   #109
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Quote:
Originally Posted by TCD View Post
(Continuing off-topic)

From the NY State Whitney Area Stewardship Plan (1998):

"While recent court cases have established the public right to
traverse private lands by boat on specific waters in
other parts of the State, the question of the legal right
of the public to navigate any of the waters that enter
private lands from the William C. Whitney Area has
not been resolved. Private property owners may take
legal action if the public enters their property by boat
beyond State land boundaries."

The plan also includes an action to "Clarify public rights of navigation." But there is no stated schedule for completion of that action. So "how they get away with it" is as agreed in the 1998 NY State plan, at least for now.

opinion/ This is the thanks that landowners get for allowing access to part of their land. There will always be the "it's never enough" people that want access to all of it. This makes it less likely that the public will get more access in the future. /opinion
Thanks for that info. I didn't mean to imply they were "getting away with" anything. That was bad phrasing on my part. I was curious if maybe there was some kind of stipulation in the contact when they sold the property to the state that part of the waterway would be blocked off. It just seemed to be in opposition to what I had been reading in this thread about whether something is "navigable" or not, and I was curious.
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Old 02-02-2018, 11:26 AM   #110
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Quote:
Originally Posted by JohnnyVirgil View Post
Thanks for that info. I didn't mean to imply they were "getting away with" anything. That was bad phrasing on my part. I was curious if maybe there was some kind of stipulation in the contact when they sold the property to the state that part of the waterway would be blocked off. It just seemed to be in opposition to what I had been reading in this thread about whether something is "navigable" or not, and I was curious.

The gate has been there for years, well before the sale of PART of their land to the state. The area the state bought, Little Upper Lake, is separate from the Forked Lake property. The upper part of Forked is still Whitney property.
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Old 03-06-2018, 02:26 PM   #111
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For those still following this saga:
Quote:
Originally Posted by NCPR
"... and now it's slated for trial again this year in July," Brown said
https://www.northcountrypublicradio....own-steps-back
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Old 03-07-2018, 10:57 AM   #112
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Question for those that have done the trip both ways - I have only canoed the private land when it opened up.

What is the rough time estimate to canoe the private land vs the .8 mile port?

What condition is the .8 mile port trail in? Blow downs, mud, etc?

Are there any nice camping spots along the port?

Wheelable?

I would like to do the loop again before I get too much older.

Thanks!

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Old 03-30-2018, 04:34 PM   #113
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If you 1-time the .8-mile carry, there wouldn't be much time difference vs. paddling. It's been a few years since I did the Little Tupper to Lila route (with 5 carries), but the .8-mile trail wasn't wheel friendly then, so it's a bit less friendly now. Either way you do it, it's a nice long day of paddling & portaging.


Quote:
Originally Posted by Viking View Post
Question for those that have done the trip both ways - I have only canoed the private land when it opened up.

What is the rough time estimate to canoe the private land vs the .8 mile port?

What condition is the .8 mile port trail in? Blow downs, mud, etc?

Are there any nice camping spots along the port?

Wheelable?

I would like to do the loop again before I get too much older.

Thanks!

Viking
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Old 08-24-2018, 10:14 AM   #114
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Anyone know if the Shingle Shanty case went to trial this week as expected?
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Old 08-24-2018, 10:02 PM   #115
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Anyone know if the Shingle Shanty case went to trial this week as expected?
Yes, according to Adirondack Explorer twitter:

"Brandreth Park Assn wraps up testimony in Adirondack paddling-rights case. In all, plaintiffs called 8 witnesses, including defendant Phil Brown, the longtime @adkexplorer editor."
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