Douglaston Manor, Inc. v. Bahrakis

• Decision Date: 11 February 1997
• Citation: 655 N.Y.S.2d 745,89 N.Y.2d 472,678 N.E.2d 201
• Parties: , 678 N.E.2d 201 DOUGLASTON MANOR, INC., Appellant, v. George BAHRAKIS et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 745

655 N.Y.S.2d 745

89 N.Y.2d 472, 678 N.E.2d 201

DOUGLASTON MANOR, INC., Appellant, v. George BAHRAKIS et al., Respondents.

Court of Appeals of New York.

Feb. 11, 1997.

Hiscock & Barclay, LLP, Syracuse (Diane L. Van Epps, of counsel), for appellant.

Frank R. Webster, Rochester, for respondents.

Shamberg Marwell Hocherman Davis & Hollis, P.C., Mt. Kisco (John S. Marwell, Stuart R. Shamberg and Adam L. Wekstein, of counsel), and Bertine Hufnagel Headley Zeltner Drummond & Dohn, Scarsdale (Frank M. Headley, Jr., of counsel), for The Adirondack League Club, Inc., amicus curiae.

Bond, Schoeneck & King, LLP, Syracuse (John S. Ferguson, H. Dean Heberlig, Jr., and Thomas M. Shephard, of counsel), for New York Blue Line Council, Inc., and others, amici curiae.

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

Neil F. Woodworth and John W. Caffry, Glens Falls, for Adirondack Mountain Club, Inc., amicus curiae.

Jeffery H. Kirby, Glenmont, for New York Farm Bureau, Inc., amicus curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

Plaintiff-appellant, Douglaston Manor, Inc., owns approximately one-mile-long sections of both shorelines of the Salmon River in Oswego County and the riverbed in between. It traces its title back to a conveyance from the pristine State of New York in 1792. The issue is whether Douglaston's ownership entitles it to exclude the public from fishing in, though not from navigating through, its portion of the river.

Douglaston's property encompasses the shoreline properties, the riverbed, and 10 islands within and along the Salmon River. It operates the Douglaston Salmon Run within its section of the river. Salmon Run is an exclusively managed private sport fishery from which the general public is excluded and for which users pay Douglaston a fee. Douglaston provides security for the property and has constructed support facilities for the benefit of its patrons, including a parking lot and stairways down to the river's edge. It pays taxes upon the entire property, including riverbed land.

This lawsuit stems from Douglaston's desire to redress past trespasses (with compensatory and punitive damages) and to prevent (by injunction) defendants, commercial fishing guides, from future anchoring upon and fishing in Douglaston's privately owned section of the Salmon River. The complaint alleges that defendants entered upon the river at a point upstream of Douglaston's property, navigated into and within the Salmon Run, and anchored, waded and fished within Douglaston's protected enclave. Douglaston asserts that it possesses exclusive fishing rights by virtue of its ownership of the bed and both banks of the river. Defendants counterclaim for nuisance and intentional interference with business relations, also seeking compensatory and punitive damages, and for a permanent injunction barring Douglaston from interfering with their claimed public right to fish anywhere on the river.

Douglaston moved for partial summary judgment solely on its trespass claim. Defendants cross-moved for partial summary judgment to dismiss the complaint and for their injunction against Douglaston. Supreme Court held that defendants knowingly trespassed upon Douglaston's property, granted its motion and scheduled an inquest on damages; the trial court denied defendants' cross motion. Though the court found a public right of navigation because the Salmon River is a navigable-in-fact river, it held that navigation did not include a public right to fish and anchor.

The Appellate Division modified by striking the critical trial court holding and denying Douglaston's motion for summary judgment; instead, the Appellate Division granted defendants' cross motion in part and dismissed the complaint in its entirety (218 A.D.2d 300, 639 N.Y.S.2d 613). The Appellate Division held that the public has the right to fish, ferry and transport on the navigable waters of the Salmon River, including Douglaston's Salmon Run section.

We granted Douglaston leave to appeal. The order of the Appellate Division is brought to our review by a stipulation between the parties, treated as a final judgment, discontinuing all pending counterclaims. We now reverse and reinstate the ruling rendered by Supreme Court, because the settled law of New York continues to recognize the common-law distinction concerning the rights which a private owner may acquire and retain in nontidal, navigable-in-fact rivers and streams. These rights are distinguishable from public trust protections generally associated with waters deemed navigable-in-law or tidal navigable-in-fact waters, neither of which classification is before us in this case.

Douglaston rests its claim of exclusive fishing rights solely on its record ownership of the bed and the banks of the Salmon River, derived from the State's 1792 conveyance, classified as within the Macomb Patent. The defendants counter that because the Salmon River is navigable, the State irrevocably holds a public trust easement that protects anyone's navigation of the river, which includes a right of public fishery. We must decide, therefore, whether New York State, under these circumstances, has the power to transfer exclusive fishing rights to private parties in a nontidal, navigable-in-fact river, as part of a conveyance of property ownership, and whether the State in fact did so in the 205-year-old Macomb Patent, derivatively at issue here.

On this appeal, the parties do not dispute that the Salmon River is navigable. Their litigation positions differ, however, over what the key word connotes and what legal consequences flow from the applicable legal definition. The guides claim that the general classification of navigability alone defeats Douglaston's claim to exclusive fishing rights. Their argument fails to credit the more nuanced concerns and complicated analysis pertaining to differences in private ownership rights between rivers navigable as a matter of common law and those navigable as a matter of fact, recognized for centuries as having distinct historical characteristics and legal consequences.

A river is defined as "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" (Navigation Law § 2[5] [emphasis added] ). The common law more particularly distinguishes and "considers a river, in which the tide ebbs and flows, an arm of the sea, and as navigable, and devoted to the public use, for all purposes, as well for navigation as for fishing. It, also, considers other rivers, in which the tide does not ebb and flow, as navigable, but not so far belonging to the public as to divest the owners of the adjacent banks of their exclusive rights to the fisheries therein" (Hooker v. Cummings, 20 Johns. 90, 100 [Sup Ct. 1822 (emphasis added) ]; see, Hardin v. Jordan, 140 U.S. 371, 383-384, 11 S.Ct. 808, 812-13, 35 L.Ed. 428; see also, State of New York ex rel. New York State Dept. of Envtl. Conservation v. Federal Energy Regulatory Commn., 954 F.2d 56). A distinction has also been recognized between public trust interests, presumptively retained by the State in navigable-in-law and tidal waters, and navigational servitudes (compare, Trustees of Brookhaven v. Strong, 60 N.Y. 56; see also, Langdon v. Mayor of City of N.Y., 93 N.Y. 129).

The Hooker case acknowledged the key distinction by presuming the Salmon River was nonnavigable at common law because the tide did not ebb and flow in it. The court then held that the plaintiff could maintain an action in trespass against a defendant where plaintiff alleged that defendant fished in that portion of the river in which the plaintiff possessed riparian ownership rights including the exclusive right of fishery (Hooker v. Cummings, supra, 20 Johns, at 100). As to the discrete public right of navigation, the court noted that "in the case of a private river, * * * he who owns the soil has, prima facie, the right of fishing; * * * that the river was liable and subject to the public servitude, for the passage of boats; the private rights of...