Friends of Thayer Lake LLC v. Brown

• Decision Date: 15 January 2015
• Citation: 126 A.D.3d 22,1 N.Y.S.3d 504
• Parties: FRIENDS OF THAYER LAKE LLC et al., Appellants, v. Phil BROWN et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 22
1 N.Y.S.3d 504

FRIENDS OF THAYER LAKE LLC et al., Appellants,
v.
Phil BROWN et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 15, 2015.

1 N.Y.S.3d 506

McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Dennis J. Phillips of counsel), for appellants.

Caffry & Flower, Glens Falls (John W. Caffry of counsel), for Phil Brown, respondent.

Eric T. Schneiderman, Attorney General, Albany (Philip Bein of counsel), for State of New York and another, respondents.

Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and LYNCH, JJ.

GARRY, J.

Appeal from an order and judgment of the Supreme Court (Aulisi, J.), entered April 2, 2013 in Hamilton County, which, among other things, denied plaintiffs' cross motion for summary judgment.

126 A.D.3d 23

Plaintiffs are the collective owners of thousands of acres of real property in a remote area of the Adirondack Mountains in the Town of Long Lake, Hamilton County. The land was conveyed by defendant State of New York to Benjamin Brandreth in 1851 and, as pertinent here, has remained since then in the private ownership and control of descendants of the Brandreth family. Plaintiffs' property is bounded on the north by the William C. Whitney Wilderness Area, which was formerly privately owned, but had been fully acquired by the State by 1998, and now consists of over 20,000 acres of State Forest Preserve land. Within the Wilderness Area, a canoeing waterway known as the Lila Traverse Section of the Whitney Loop permits canoeists to travel across a network of lakes, ponds, streams and canoe carry trails maintained by defendant Department of Environmental Conservation (hereinafter DEC) between Little Tupper Lake on the Wilderness Area's eastern side and Lake Lila on the western side.

The subject of this litigation is a two-mile-long system of ponds and streams known as the Mud Pond Waterway (hereinafter the Waterway) that crosses the northernmost corner of plaintiffs' property between two water bodies in the Wilderness Area: Lilypad Pond on the northeast and Shingle Shanty Brook on the northwest. Both of these bodies of water are part of the Lila Traverse, and shortly after this part of the Wilderness

126 A.D.3d 24

Area entered public ownership, DEC constructed an .8–mile carry trail between them in order to permit canoe travelers to use the Lila Traverse without entering plaintiffs' property

1 N.Y.S.3d 507

or using the Waterway. Defendants now assert that canoeists are not obliged to use the carry trail, arguing that even though the Waterway is located on privately owned property, it is navigable-in-fact and therefore open to public use. Plaintiffs disagree, contending that the Waterway is their private property and that they are entitled to exclude members of the public from using it.

In May 2009, defendant Phil Brown, the editor of a publication called Adirondack Explorer, explored the question of the Waterway's navigability-in-fact by canoeing through it. In a subsequent article entitled "Testing the Legal Waters," Brown reported that he began his trip at a DEC access point on Little Tupper Lake and then traveled westward across the various lakes, ponds, streams and portages that make up the Lila Traverse until he reached Lilypad Pond. At that point, instead of exiting the pond and using the DEC carry trail, by which he could have reached Shingle Shanty Brook without leaving State-owned land, Brown canoed across Lilypad Pond into a narrow neck or outlet that crosses plaintiffs' property line. Brown saw and photographed plaintiffs' no trespassing signs at the boundary, but continued past them into Mud Pond-a shallow body of water comprising about 40 acres-and then to the pond's western edge, where the Mud Pond Outlet Brook begins. The first 500 feet of the Outlet Brook consist of rapids, which Brown avoided by removing his canoe from the water and portaging for approximately .1 miles on a nearby carry trail that plaintiffs had constructed and maintained for their own use. He reentered the Outlet Brook below the rapids, canoed westward to this stream's confluence with Shingle Shanty Brook on plaintiffs' property, and then continued northward on this brook for about a mile to the point where it crosses plaintiffs' property line and reenters the Wilderness Area. Thereafter, Brown completed the Lila Traverse by continuing on Shingle Shanty Brook to Lake Lila, where he exited at a DEC public access point.

Plaintiffs commenced this action after they learned about Brown's trip, seeking compensatory damages for trespass and a judgment declaring that the Waterway is not navigable-in-fact, and barring the public from using the Waterway and entering plaintiffs' property. Brown answered and asserted,

126 A.D.3d 25

among other things, that the State was a necessary party. The State and DEC (hereinafter collectively referred to as the State defendants) thereafter moved to intervene as defendants, and Supreme Court granted the motion. The State defendants then answered and asserted counterclaims, including a demand for a declaratory judgment that the Waterway is navigable-in-fact, and that plaintiffs created a public nuisance by interfering with the public's right to use it. The State defendants further sought an injunction prohibiting plaintiffs from posting the Waterway against trespass. Following discovery, Brown and the State defendants moved and plaintiffs cross-moved for summary judgment. Supreme Court declared that the Waterway is navigable-in-fact, granted the motions for summary judgment by Brown and the State defendants, denied plaintiffs' cross motion and enjoined plaintiffs from interfering with the right of the public to navigate the Waterway. Plaintiffs appeal.

As a preliminary matter, we note that in rendering its summary judgment determination, Supreme Court stated that it would have been inclined to find triable issues of fact as to the navigable character of the Waterway, but did not do so because the parties had asked the court to render a determination as a matter of law. On appeal, the parties renew that request,

1 N.Y.S.3d 508

jointly advising this Court that the material facts are fully and accurately presented in the record and are not in significant dispute. The determination whether a waterway is navigable-in-fact is heavily dependent on factual evidence and assessments and thus cannot always be resolved as a matter of law (see e.g. Adirondack League Club v. Sierra Club, 92 N.Y.2d 591, 605, 684 N.Y.S.2d 168, 706 N.E.2d 1192 [1998] ; Fairchild v. Kraemer, 11 A.D.2d 232, 236, 204 N.Y.S.2d 823 [1960] ; compare Morgan v. King, 35 N.Y. 454, 460 [1866] ; People ex rel. Erie R.R. Co. v. State Tax Commn., 266 App.Div. 452, 454–455, 43 N.Y.S.2d 189 [1943] ). Nevertheless, the parties in a civil dispute may chart their own course in litigation and may agree upon the factual basis for the resolution of a legal controversy (see Matter of Kaczor v. Kaczor, 101 A.D.3d 1403, 1404–1405, 956 N.Y.S.2d 650 [2012] ). In view of the comprehensive character of the record and the lack of any major factual disagreements in the parties' arguments, we grant their mutual request to resolve this matter as a question of law.

Pursuant to the common law, a waterway on private property that is not navigable-in-fact is owned by the adjacent landowners, but a waterway that is navigable-in-fact "is considered a public highway, notwithstanding the fact that its banks and

126 A.D.3d 26

bed are in private hands" ( Adirondack League Club v. Sierra Club, 92 N.Y.2d at 601, 684 N.Y.S.2d 168, 706 N.E.2d 1192 ; see Morgan v. King, 35 N.Y. at 455 ). The State cannot alienate the right of the public to travel on a navigable-in-fact waterway by transferring title in its bed and banks to a private owner (see Smith v. City of Rochester, 92 N.Y. 463, 479 [1883] ). As riparian owners never obtain ownership interests in the waters of navigable-in-fact waterways, a judicial determination that the public has the right of navigation does not result in a taking for public use without compensation (see Adirondack League Club v. Sierra Club, 92 N.Y.2d at 604, 684 N.Y.S.2d 168, 706 N.E.2d 1192 ).¹ Accordingly, the import of a judicial determination that a waterway is navigable-in-fact is that it has always been open to the public in that character, even though the riparian owners may not have believed it to be, and no trespass was committed by a traveler who navigated upon it before a court ruled upon its navigability.

Where, as here, a waterway passes through privately-owned property, a common-law standard is applicable in determining its navigability. While the Navigation Law contains a definition of navigability-in-fact, that legislation applies to the "navigable waters of the state," a term that is statutorily defined to exclude privately-owned bodies of water ( Navigation Law § 1 ; see Navigation Law §§ 2[4] ; [5]; People v. System Props., Inc., 281 App.Div. 433, 443–444, 120 N.Y.S.2d 269 [1953] ). In addition...