By Kenneth Aaron
The first time Dave Cilley encountered the no-trespassing cable across Shingle Shanty Brook, it was in the late 1970s or 1980s, shortly after the state purchased land around Lake Lila and he was exploring the area.
He turned back, and it’s been forbidden fruit for him ever since. Until this year, that is, after a state judge ruled that the public has a right to travel the waterway—Mud Pond, Mud Pond Outlet, and a privately owned stretch of Shingle Shanty Brook—under the common-law right of navigation.
The landowners, the Friends of Thayer Lake and the Brandreth Park Association, plan to appeal the decision to the Appellate Division of State Supreme Court, which may hear arguments late in the year.
Cilley, who owns St. Regis Canoe Outfitters, said his clients began using the route this spring and they reported back that the landowners have removed signs and cables meant to deter people from paddling the waterway. “The fact that they’ve taken the barrier out of the river is a big plus,” said Cilley, who has yet to paddle the stretch himself.
“I know it’s a relatively wild section,” he said of the waterway. “Places like that that haven’t been open to the public are generally pretty pristine.”
As a result of the ruling, paddlers no longer have to carry their boats three-quarters of a mile between Lilypad Pond and the state-owned portion of Shingle Shanty Brook, both of which lie within the William C. Whitney Wilderness. From Lilypad Pond, they can now paddle to Mud Pond, carry around a short rapid, paddle the outlet to Shingle Shanty, and take the brook to Lake Lila.
State Supreme Court Justice Richard T. Aulisi issued the decision in late February in a case involving Adirondack Explorer Editor Phil Brown, who paddled the disputed waterway in 2009 while researching an article for the newsmagazine. He was sued for trespass in 2010. New York State Attorney General Eric Schneiderman intervened to defend the public’s right to paddle the waterway.
The landowners’ attorney, Dennis Phillips of Glens Falls, declined to discuss the appeal, but he has notified the Appellate Division that he intends to offer several arguments for overturning Aulisi. In the lower court, Phillips contended that the common-law right of navigation does not apply to a waterway unless it has a history of or utility for commercial use and that the waterway in question is too small for commercial transportation.
In a document filed with the Appellate Division, Phillips indicates that he intends to stick to that argument. He suggests that Aulisi’s ruling amounts to “a reformulation of the common law.”
John Caffry, a Glens Falls attorney representing Brown, said he doesn’t think the court will accept that argument. He contends that recreational use is sufficient to trigger the common-law right. “We think the recreational test is the law at this point—or is certainly an option as one way to prove navigability at this point,” Caffry said.
Even so, Caffry added, the landowners’ varied use of the waterway demonstrates that it’s suitable for both commercial and recreational travel. He noted that the owners had a long history of transporting building materials and furs over the waterway.
In the Appellate Division filing, Phillips also questioned the need for the public to paddle the waterway, given that the state cut a carry trail across state land to avoid the private property. And he questioned whether the public has the right to use the short carry trail on private land that skirts the Mud Pond rapid. He said the path lies “well beyond the mean high water mark” of the stream.
Now that the waterway is open, Cilley said he will urge his clients to be respectful of the private property. The common law gives paddlers the right to travel a waterway and scout and carry around rapids and other obstacles. However, it does not permit them to anchor, swim, picnic, fish, camp, or otherwise tarry on private land.
“There’s a lot of other places that are very heavily used where the public route goes through private land,” Cilley said. “Certainly, we make every effort to not only make people aware of it, but encourage them to show the respect.”
“The main thing is to let people know there are responsibilities that go along with any right,” he said. “I think most people appreciate that.” ■