Landowners to file appeal in paddling lawsuit

Landowners in Hamilton County plan to appeal a judge’s recent decision that the public has the right to paddle a 2-mile stretch of water through their property.

The Brandreth Park Association and Friends of Thayer Lake sued Adirondack Explorer Editor Phil Brown, of Saranac Lake, in November 2010, saying he trespassed when he paddled Mud Pond and Shingle Shanty Brook through their property that May. Brown paddled the waters as part of a two-day trip from Little Tupper Lake to Lake Lila, which are connected by a series of streams, ponds and canoe carries.

Most of the trip Brown took is in the state-owned William C. Whitney Wilderness, and there is a canoe carry on state land around the waters in question, if people choose not to paddle Mud Pond and the upper reaches of the Shingle Shanty Brook.

In late February, state Supreme Court judge Richard Aulisi ruled that Brown had the right to paddle through the private property and ordered the landowners to take down trespassing signs and a cable restricting access to the waterways.

Attorney Dennis Phillips, who represented the landowners, said the case should be looked at by a higher court but didn’t elaborate why he thought his clients would be able to win an appeal.

“I’m not really prepared to talk about that right now,” Phillips said. “We just received the notice of entry of the decision and the order in judgment, so our 30-day period in which to file an appeal just started Wednesday of this week. So we have made the decision to appeal. We do feel that there are valid points to be considered by the next level of the judiciary. So that’s all I can say right now.”

Phillips said the case would be heard by the state Supreme Court’s Appellate Division in Albany. He said the case wouldn’t be heard this spring and he hopes it will be on the fall calendar.

Brown was represented by both the state attorney general’s office and by attorney John Caffry of Glens Falls.

“We’re not surprised,” Caffry said. “They’ve been saying all along that they expected to take this to a higher court. I think that Judge Aulisi’s decision was very well done and was well supported by the existing binding precedents, and so I think it will hold up. Obviously, that’s what appellate courts are for. We’ll see.”

Brown had researched the navigation rights issue before his trip and wrote about it afterward in the Explorer. The first article appeared in the July 2010 issue and was called “Testing the Legal Waters.” Brown told the Enterprise at the time that he did this trip because he believed the public has a legal right to use this waterway based upon the research he had done. His writings attracted other paddlers to the property and drew criticism from the landowners.

The involved parties agreed that the waterways are navigable in the general sense of the word, but they disagreed about the legal definition of the term, “navigable in fact.” Waters that are “navigable in fact” have historically been open to the public and are considered public highways if there are public access points to enter and exit the waterways.

“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,” Phillips told the Enterprise in November.

Phillips said a waterway must have a history of commercial use to meet the legal definition. He said 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.

Caffry and the attorney general’s office argued that a waterway can be proven navigable in fact by commercial or recreation means. When Brown paddled waters, he proved the waters were navigable in a recreational sense.

The defendants also argued the waters had been used for commercial purposes in the past, including trapping, and that they would be used in the future by canoe guides, arguments the judge sided with.

Caffry and the attorney general’s case was largely based on the 1998 case, Adirondack League Club vs. the Sierra Club, which involved the Moose River. In that case paddlers were sued by the Adirondack League Club after paddling down the river through their land. A court later said they had the right to paddle the river and today the waterway is open on a seasonal basis.