Canoe case in top court

Landowners appeal dismissal of trespass suit against Explorer editor, contending constitutional property rights are at stake.

By Kenneth Aaron

The Adirondack landowners who sued the editor of the Adirondack Explorer after he paddled through their property are taking the case to New York’s highest court, saying a lower court’s decision infringes on their constitutional rights.

The Brandreth Park Association and the Friends of Thayer Lake argue that opening their remote parcel to canoeists and kayakers would be tantamount to taking away property rights they’ve held since 1851.

A ruling by the Court of Appeals might end a legal dispute that began in May 2009, when Explorer Editor Phil Brown paddled two miles through private property— on Mud Pond, the Mud Pond outlet, and part of Shingle Shanty Brook while researching a story about public navigation rights.

The landowners sued Brown for trespass a year later. The state Department of Environmental Conservation joined the lawsuit on Brown’s side, arguing that the waterway should be open to the public under the common-law right of public navigation. State Supreme Court Justice Richard Aulisi dismissed the lawsuit in 2013. After the landowners appealed, the Appellate Division of State Supreme Court ruled 3-2 in January in favor of Brown. Because two judges dissented, the landowners have an automatic right to appeal.

In the next round, Dennis Phillips, the attorney for the landowners, said he will raise issues brought up by the appellate judges in the split decision. The two dissenting justices had contended that opening such a remote waterway to the public would “destabilize settled expectations of private property ownership.” Even the judges in the majority, in a footnote to their decision, conceded that the case “may destabilize long-established expectations [their emphasis]” of the landowners.

In a document filed with the Court of Appeals, outlining possible grounds for appeal, Phillips picked up on this point, contending that “constitutional issues are at stake” and that “long-established expectations as to the right of private ownership are under siege.” Giving the public the right to paddle the waterway, he said, amounts to an unlawful taking of private property.

Steven B. Potter, the president of the Brandreth Park Association, decried the Appellate Division decision. “A stream in the wilderness would not have been considered a commonlaw public highway in 1851,” Potter wrote in an email. “If the Brandreth property was not burdened by a public easement at the time of the original grant, imposing one today would constitute a taking without just compensation.”

Brown’s attorney, John Caffry, said in an email that the taking argument is irrelevant on appeal because it wasn’t raised in the original lawsuit. “What they are doing instead is trying to influence the court’s decision on the claims that they did file by arguing that the court would create a taking if it rules in favor of the public’s rights,” he wrote.

Phillips, though, said the Appellate Division judges raised the issue, making it fair game. “We will be arguing the point,” he said. He questioned whether the public’s desire to travel on the remote waterway outweighs private property rights guaranteed by the Fifth Amendment.

Caffry also said it’s impossible to know whether Benjamin Brandreth, the original owner, thought the public had a common-law easement to paddle through his property. “However, this was a common issue for litigation in the courts at that time, so any large landowner had to be aware of the possibility that such an easement could exist,” Caffry said. “And 1851 was during the heyday of the original Adirondack guides and not that far removed from the beaver-trapping era, so navigation on streams of all sizes was common, especially in roadless areas. Indeed, the Brandreth family has rowed and canoed these waters for many generations.”

Moreover, circumstances have changed since 1851. The parcel was once surrounded by other private lands. Today, the land on both ends of the waterway is part of the state-owned Forest Preserve. Thus, Caffry argues that the waterway is useful for traveling between two pieces of public land.

In a 1998 decision, the Court of Appeals ruled that a waterway is “navigable-in-fact”—that is, open to the public—if it has “a practical utility for trade or travel.” One issue in the current case is whether the Mud Pond Waterway, as it’s been dubbed in court papers, satisfies that criterion.

In the document filed with the Court of Appeals, Phillips renews his argument that the Mud Pond Waterway is too small and too remote to be of practical utility to the public. The dissenting judges in the Appellate Division agreed with him, but the majority wrote that “a stream that can carry only small boats may nevertheless be navigable-in-fact” and that, as to remoteness, “the standard for navigability-in-fact is more concerned with a waterway’s capacity and characteristics than its location.”

In fact, the majority noted the family’s long history of using the route not only for recreation, but also for ferrying goods back and forth to a camp on Mud Pond. In his legal papers, Phillips tells the Court of Appeals that the lower court “punished” the landowners for using their own property.

Usually, the Court of Appeals has the final word in lawsuits filed in state courts. Phillips, however, raised the possibility—admittedly a long shot—that the U.S. Supreme Court might find the constitutional issues involved worth a look.

“This case keeps morphing into something even more fascinating than how it began,” he said. “It takes on layers of dimension that were probably not envisioned.”

The parties are scheduled to file all their legal briefs with the Court of Appeals by early August. The court is expected to hear the case by the end of the year.