Adirondack League Club, Inc. v. Sierra Club

• Decision Date: 17 December 1998
• Citation: 92 N.Y.2d 591,684 N.Y.S.2d 168,706 N.E.2d 1192
• Parties: , 706 N.E.2d 1192, 1999 A.M.C. 756, 29 Envtl. L. Rep. 20,374, 1998 N.Y. Slip Op. 11,281 ADIRONDACK LEAGUE CLUB, INC., Appellant, v. SIERRA CLUB et al., Respondents, and State of New York et al., Intervenors-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 168

684 N.Y.S.2d 168

92 N.Y.2d 591, 706 N.E.2d 1192, 1999

A.M.C. 756,

29 Envtl. L. Rep. 20,374, 1998 N.Y. Slip Op. 11,281

ADIRONDACK LEAGUE CLUB, INC., Appellant, v. SIERRA CLUB et al., Respondents, and State of New York et al., Intervenors-Respondents.

Court of Appeals of New York.

Dec. 17, 1998.

Shamberg Marwell Hocherman Davis & Hollis, P.C., Mount Kisco (John S. Marwell, Adam L. Wekstein and Stuart R. Shamberg of counsel), and Bertine, Hufnagel, Headley, Zeltner, Drummond & Dohn, L.P.P., Scarsdale (Peter K. Bertine and Frank M. Headley, Jr., of counsel), for appellant.

Whiteman Osterman & Hanna, Albany (Philip H. Gitlen and Michael G. Sterthous of counsel), for Sierra Club and another, respondents.

Proskauer Rose, L.L.P., New York City (Robert J. Kafin of counsel), and Bartle, McGrane, Duffy & Jones, Troy (Nancy E. Jones of counsel), for Robert Wolfe and others, respondents.

Dennis C. Vacco, Attorney-General, Albany (William S. Helmer, Nancy Spiegel, Roger W. Tippy and Barbara G. Billet of counsel), for State of New York, intervenor-respondent.

John W. Caffry, Inga L. Fricke, Glens Falls and Neil F. Woodworth, Lake George, for Adirondack Mountain Club Inc., intervenor-respondent.

Phillips, Lytle, Hitchcock, Blaine & Huber, L.L.P., Buffalo (Robert E. Glanville of counsel), for New York Rivers United and others, amici curiae.

Matthew R. Atkinson, White Plains, for Riverkeeper, Inc., amicus curiae.

Bond, Schoeneck & King, L.L.P., Syracuse (H. Dean Heberlig, Jr., of counsel), for Adirondack Landowners Association, amicus curiae.

Hiscock & Barclay, L.L.P., Syracuse (Diane L. Van Epps of counsel), and Jeffery H. Kirby, Glenmont, for New York Farm Bureau, Inc., amicus curiae.

OPINION OF THE COURT

CIPARICK, J.

This case presents the Court with the opportunity to decide to what extent recreational use can be considered in determining whether a river is navigable-in-fact. The river at issue is the South Branch of the Moose River (the South Branch), 12 miles of which run through property owned by plaintiff Adirondack League Club, Inc. (ALC). On June 15, 1991, the individual defendants traveled down this portion of the South Branch in two canoes and a kayak, an endeavor that required several portages around various obstacles in the river. ALC, a private club, preserves 50,000 acres around this portion of the South Branch for use, including hunting and fishing, by its members. After defendants' trip, ALC sued the Sierra Club, which organized the excursion, and the five individual defendants, some of whom are members of the Sierra Club, for trespass. ALC claims that this section of the South Branch is its private property. Defendants counter that because the South Branch is navigable-in-fact, they were entitled to use the easement reserved to the public in all such waterways. The State of New York and the Adirondack Mountain Club, Inc. intervened as defendants and along with the other defendants moved for summary judgment on the issue of navigability of this portion of the South Branch.

This Court must decide, based on the common-law standard of navigability-in-fact, whether factual questions exist as to the South Branch's navigability. Like the Supreme Court and the two--Justice dissent in the Appellate Division below, we conclude that summary judgment is not warranted. We hold, however, that evidence of the river's capacity for recreational use is in line with the traditional test of navigability, that is, whether a river has a practical utility for trade or travel. Since questions of fact remain regarding whether the South Branch is navigable-in-fact, plaintiff is entitled to have the competing evidence weighed and the credibility of the witnesses assessed at trial. Accordingly, we modify.

I.

The parties differ regarding the type of evidence that will suffice to satisfy the standard of navigability-in-fact. Specifically, the parties differ on the extent to which recreational use should enter into the analysis. Appellant ALC contends that navigability references only commercial utility and that the focus thus should be on the South Branch's use as a logging river during the first half of this century. Reliance on recreational uses, ALC asserts, would disrupt settled expectations regarding private property and would expand the common-law rule beyond its traditional foundation. Defendants argue that recreational and commercial use are both properly part of the analysis.

As a general principle, if a river is not navigable-in-fact, it is the private property of the adjacent landowner. If, however, a river is navigable-in-fact, it is considered a public highway, notwithstanding the fact that its banks and bed are in private hands (Morgan v. King, 35 N.Y. 454). This rule is longstanding and recognizes that some waterways are of such practical utility that private ownership from the time of the original grant from the State or sovereign is subject to an easement for public travel (see, id., at 458). Typically, such utility implicated commerce. The seminal case of Morgan v. King sets forth the standard for navigability-in-fact:

"[A] river is, in fact, navigable, on which boats, lighters or rafts may be floated to market *** [Additionally,] the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks. It is not essential to the right, that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can, ordinarily, be carried safely, without such guidance ***. If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported" (id., at 458-459).

Necessity of use by the public was essential to the Morgan Court when it crafted this definition from its English ancestor. Inasmuch as the English common-law rule was "but an outgrowth or product of the peculiar circumstances and necessities of the people with whom it originated," the New York rule found its basis in New York necessities (id., at 459). Because "valuable products", namely timber, "would have no avenue to market" the public easement could not be restricted, as in England, to those streams navigable by boats or rafts. Instead, those "capable of floating to market single logs or sticks of timber" could be also deemed navigable-in-fact (id., at 459).

In addition to Morgan v. King, ALC relies on Douglaston Manor v. Bahrakis, 89 N.Y.2d 472, 655 N.Y.S.2d 745, 678 N.E.2d 201, in which we quoted a "commercial" definition of navigable-in-fact from the Navigation Law--a river is navigable-in-fact if it is

" 'navigable in its natural or unimproved condition, affording a channel for useful commerce of a substantial and permanent character conducted in the customary mode of trade and travel on water *** hav[ing] practical usefulness to the public as a highway for transportation' " (id., at 480, 655 N.Y.S.2d 745, 678 N.E.2d 201, quotingNavigation Law § 2[5] ).

The Court in Douglaston Manor, however, was not asked to decide whether a waterway was navigable-in-fact. Instead, the Court had to determine whether the public had a right to fish in the Salmon River, which was concededly navigable-in-fact. In holding that the public did not have that right, the Court maintained the distinction between those waters that are navigable-in-law, that is, those that partake of the sea and are thus dedicated to the public use, including the right to fish, and those waters, above the tide, that are navigable-in-fact, over which the public retains only a servitude for transportation.

Using this navigability language from Douglaston Manor as persuasive authority, however, does not necessarily bolster ALC's view that the ability to carry goods to market is the sole criteria in determining the question of navigability. Both the Navigation Law definition and that of Morgan have as their touchstone the idea that a river must have "practical usefulness to the public as a highway for transportation" (Navigation Law § 2[5] ). The fact that before the middle of the 20th century a river's practical utility was measured by its capacity for getting materials to market does not restrict the concept of usefulness for transport to the movement of commodities. Although evolving necessities and circumstances may warrant a different emphasis regarding a river's usefulness, the central premise of the common-law rule remains the same--in order to be navigable-in-fact, a river must provide practical utility to the public as a means for transportation. Thus, while the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel (see, Van Cortlandt v. New York Cent. R.R. Co., 265 N.Y. 249, 254-255, 192 N.E. 401; Fulton Light, Heat & Power Co. v. State of New York, 200 N.Y. 400, 412, 94 N.E. 199; Fairchild v. Kraemer, 11 A.D.2d 232, 235, 204 N.Y.S.2d 823).

Certainly, as all members of the Appellate Division panel held, evidence of recreational use will support a finding that a river is susceptible to commercial use. Beyond this, however, evidence of a river's practical utility for transport need not be limited to evidence of its capacity for the movement of commercial goods. By offering opinions of river guides regarding the feasibility of running boat tours of the South Branch, both plaintiff and defendants correctly recognize that recreational boating has commercial aspects. More importantly, however, unlike the circumstances presented to this Court when Morgan was decided in 1866, the necessity of using the South Branch as a means of moving goods in commerce has waned. Once one of the five busiest rivers in New...