Friends of Thayer Lake LLC v. Brown

• Citation: 2016 N.Y. Slip Op. 03647,27 N.Y.3d 1039,53 N.E.3d 730,33 N.Y.S.3d 853
• Parties: FRIENDS OF THAYER LAKE LLC et al., Appellants, v. Phil BROWN, Respondent, and State of New York et al., Intervenors–Respondents, et al., Defendant.
• Decision Date: 10 May 2016
• Court: New York Court of Appeals

27 N.Y.3d 1039
53 N.E.3d 730
33 N.Y.S.3d 853
2016 N.Y. Slip Op. 03647

FRIENDS OF THAYER LAKE LLC et al., Appellants,
v.
Phil BROWN, Respondent,
and
State of New York et al., Intervenors–Respondents, et al., Defendant.

Court of Appeals of New York.

May 10, 2016.

33 N.Y.S.3d 854

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

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

Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg, Barbara D. Underwood, Andrea Oser, Andrew B. Ayers and Philip M. Bein of counsel), for State of New York and another, respondents.

Pacific Legal Foundation, Palm Beach Gardens, Florida (Mark Miller, of the Florida bar, admitted pro hac vice, of counsel), and New York Farm Bureau, Inc., Albany (Elizabeth C. Dribusch of counsel), for Pacific Legal Foundation and others, amici curiae.

Diane Van Epps Finnegan, Manlius, for Adirondack Landowners Association, amicus curiae.

Adirondack Mountain Club, Inc., Lake George (Neil F. Woodworth of counsel), and Schoeman Updike & Kaufman LLP, New York City (Charles B. Updike and Jeremy M. Weintraub of counsel), for Adirondack Mountain Club, Inc., and another, amici curiae.

Hancock Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for Empire State Forest Products Association, amicus curiae.

OPINION OF THE COURT

MEMORANDUM.

53 N.E.3d 731

27 N.Y.3d 1042

The order of the Appellate Division should be modified, without costs, by denying defendants' motions for summary judgment and, as so modified, affirmed.

Plaintiffs are the collective owners of real property in a remote area of the Adirondack

53 N.E.3d 732

33 N.Y.S.3d 855

Mountains. The property is bounded on the north by the William C. Whitney Wilderness Area, which consists of more than 20,000 acres of state forest preserve land. The Wilderness Area was privately owned, at least during the twentieth century, until fully acquired by the State in 1998. Within the Wilderness Area, a network of lakes, ponds, streams, and canoe carry trails known as the Lila Traverse Section of the Whitney Loops permits canoe travel between two lakes on opposite sides of the Wilderness Area.

The parties' dispute concerns the Mud Pond Waterway, a two-mile-long system of ponds and streams within the Lila Traverse that crosses plaintiffs' property. Shortly after the Wilderness Area entered public ownership, defendant New York State Department of Environmental Conservation constructed a 0.8–mile carry trail in order to permit canoe travelers to avoid the Waterway and complete the Lila Traverse without entering plaintiffs' property. Defendants now assert that members of the public are not obligated to use the carry trail, as the Waterway is subject to a public right of navigation. We are asked to determine whether the Waterway is navigable-in-fact and therefore open to public use.

As a general principle, if a waterway is not navigable-in-fact, “it is the private property of the adjacent landowner” (Adirondack League Club v. Sierra Club, 92 N.Y.2d 591, 601, 684 N.Y.S.2d 168, 706 N.E.2d 1192 [1998] ). A waterway that is navigable-in-fact, however, “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” (id., citing Morgan v. King, 35 N.Y. 454 [1866] ; see Van Cortlandt v. New York Cent. R.R. Co., 265 N.Y. 249, 254–255, 192 N.E. 401 [1934]...