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Canoe trespassing case in the hands of judge

December 1, 2012
By MIKE LYNCH - Outdoors Writer ( , Adirondack Daily Enterprise

A lawsuit that claims Adirondack Explorer Editor Phil Brown trespassed while paddling on waterways that run through private property is now in the hands of a judge.

The case brought by the Brandreth Park Association and Friends of Thayer Lake LLC went before state Supreme Court Justice Richard T. Aulisi at the Fulton County Courthouse in Johnstown on Friday, Nov. 16. All parties involved asked for a summary judgement, which means that those involved agree on the facts, and the case wouldn't have to go to trial. Instead, Aulisi would decide based on the arguments already presented.

The case stems from a May 2009 canoe trip during which Brown skipped a mile-long portage in the William C Whitney Wilderness in favor of paddling on Mud Pond and Shingle Shanty Brook, which are surrounded by private land owned by the plaintiffs. It took him about an hour to paddle these two miles. The rest of the trip from Little Tupper Lake to Lake Lila - connected by a series of streams, ponds and portages - took about two days.

Article Photos

Posted signs hang over a section of the Shingle Shanty Brook in September 2008.
(Enterprise photo — Mike Lynch)

After finishing the trip, Brown wrote about his experiences in the Explorer, eventually drawing the attention of the landowners who then filed the trespassing lawsuit in Nov. 2010. Brown said in his articles that his desire was to clarify the law regarding those waters, which had been chained off by the landowners in an attempt to keep the public out.

In his writings, Brown claimed that he had the legal right to canoe those waters because of the "common-law right of navigation," which would make them a public easement or "public highway."

After pursuing the issue through articles, Brown was later backed by the state Department of Environmental Conservation, which ordered the landowners to take down cables across the waterways. When the case went to court, the attorney general's office took Brown's side as one of three involved parties.

In August, Assistant Attorney General Kevin Donovan filed court documents stating "that plaintiffs' interference with travel on the waterway constitutes a public nuisance. The waterway meets the legal standard of navigability because it has 'practical utility for trade or travel,' as it is floatable in its natural state and of use in transportation in its ordinary capacity."

None of the parties dispute the fact that the waterways are navigable in the general sense of the word. What they disagree about is the legal definition of the term navigable in fact. How this is interpreted by the judge will ultimately decide the outcome of the case.

"The question is whether navigability in fact can be supported purely by recreational use, or is navigability in fact supported by a combination of recreational use and commercial use," said the plaintiff's attorney Dennis Phillips.

Phillips said that a waterway must have a history of commercial use to meet the legal definition. He said that there was no commercial use of these waterways, in part because they are too small and couldn't support those types of activities.

"There was no log driving for example," he said. "So that was a big factor that we looked at in the case, that there was no history of commercial use on the property."

Phillips also says that that the trip isn't part of a historical canoe route that was open to the public.

"Prior to the state's acquisition to the Whitney Property in 1998, there was never any historical use of the Brandreth property by the public," Phillips said.

Phillips said that the public canoe route was established once the state purchased the adjoining Whitney Wilderness properties that include Lake Lila and Little Tupper Lake.

However, Brown's attorneys have argued that the route was documented in a guidebook from as far back as the 19th century. Phillips said that the guidebook author Edwin R. Wallace used the route with permission of the Brandreth family.

One of the attorney's representing Brown in the case is John Caffry of Glens Falls. Caffry was involved in what was considered a landmark case in the 1990s that eventually opened up a 12-mile stretch of the South Branch of the Moose River to paddlers.

Caffry said that the waters Brown paddled should be open to the public, whether they have been used publicly or privately over time.

"The question under the law is whether or not there is evidence for the capacity for use," he said. "It doesn't matter who used it in terms of proving the capacity. Use by anybody can be used to prove the capacity exists."

Caffry also said that the law allows paddlers to use the waterways, regardless of whether there is a history of commercial use.

"They seem to think that's essential," he said. "The commercial use, either logging or shipping goods or whatever. We think that argument by them would totally turn back the clock on what the court said in the Moose River case, where it said commercial or recreational use could be evidence. The real question that the court said was whether or not the river has capacity for trade or practical utility to the public for trade or travel. They didn't frame it as exclusively commercial or recreational, they said you have to look at trade or travel. So you don't need to have any commercial use. That's what 'or' means."

Either way, Phillips said paddlers should realize that whichever way the court rules, people will have the right to do a trip between Lake Lila and Little Tupper Lake.

"It's important to know that there's no blockage of the route from Lake Lila to Little Tupper Lake. There's no blockage of the route from Lake Lila to Lilypad Pond," he said. "It's not as if anyone is being prevented from making the trip from Little Tupper Lake to Lake Lila, all on state land because state land connects this entire area. This is a case where the trip would be better. But in the meantime, the people who have written on it in this case have enjoyed the trip as it is, and they've gotten a sense of accomplishment out of it."



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