In Friends of Thayer Lake LLC v. Brown, 2016 NY Slip Op 03647, the issue recently in front of the Court of Appeals of New York was whether a certain Adirondack waterway is navigable-in-fact, a question that determines whether the public has access to the waterway.

Plaintiffs own land in a remote area of the Adirondack Mountains, adjacent to the Williams C. Whitney Wilderness Area (the “Wilderness Area”), which consists of more than 20,000 acres of preserved forest.  A system of lakes, ponds, streams, and canoe carry trails known as the Lila Traverse Section of the Whitney Loops (the “Lila Traverse”) allows canoe travel between two water bodies on opposite sides of the Wilderness Area: Lilypad Pond and Shingle Shanty Brook.

This litigation concerns the Mud Pond Waterway (the “Waterway”), a two-mile-long network of ponds and streams within the Lila Traverse that crosses plaintiffs’ property.  Shortly after the Wilderness Area became public, defendant New York State Department of Environmental Conservation (“DEC”) constructed a .8-mile carry trail in order to allow canoeists to bypass the Waterway and complete the Lila Traverse without entering plaintiffs’ property.  DEC now asserts that canoeists are not required to use the carry trail because the Waterway is navigable-in-fact and therefore open to public use.  Plaintiffs disagree, claiming that the Waterway is their private property and that they are entitled to exclude members of the public from using it.

As a general rule, a waterway that is navigable-in-fact “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands,” whereas a waterway that is not navigable-in-fact “is the private property of the adjacent landowner.”  Adirondack League Club v. Sierra Club, 684 N.Y.S.2d 168, 170 (1998).  For a waterway to be navigable-in-fact, it must provide practical utility to the public as a way of transportation, whether for trade, travel, or recreation.  2016 NY Slip Op 03647 at 2-3.

While both sides requested a determination as a matter of law, the Court said there were too many unresolved facts.  The Court explained that “[t]he record is not conclusive with regard to . . . the Waterway’s historical and prospective commercial utility, the Waterway’s historical accessibility to the public, the relative ease of passage by canoe, the volume of historical travel, and the volume of prospective commercial and recreational use,” among other things.  2016 NY Slip Op 03647 at 5.  The Court decided that the trier of fact is ultimately in a better position to assess the navigability of the Waterway.

Thus, the case will head back downstream to the trial court.

Lieberman Blecher & Sinkevich has handled numerous public access cases and can assist clients in this unique area of law.