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-   -   guidence on "private" water ways (http://www.adkforum.com/showthread.php?t=15861)

Adam317 06-23-2011 09:43 PM

guidence on "private" water ways
 
http://www.americanwhitewater.org/re...Navigation.pdf.


See attahced PDF and please comment on whether you think if this is a good rerference or not. Thanks

WillisB 06-23-2011 10:24 PM

In practical terms, unless a waterway has been declared "navigable-in-fact" by a court in New York, it isn't. Can you afford to defend yourself in court if sued for trespass by an irate landowner?

Paradox6 06-24-2011 06:28 AM

What is not discussed and what is not entirely clear from the opinions referenced is whether or not a waterway is navigable in fact, that is, “if it is so far navigable or floatable in its natural state and its ordinary capacity, as to be of public use in the transportation of property," is based upon it's historical use, its present usability, the date the property was conveyed from the state to the first private owner in the chain of ownership, the date of the Morgan opinion (1866) or some other date. Generally, real property rights are supposed to be very stable, the principles the Courts apply generally do not like suddenly shifting rights or suddenly changing interpretations of the law. I don't think the Courts are going to change property rights every time Pete Hornbeck or Charlie develops a smaller or lighter canoe. The better legal arguments are for the long term historical use time frames.

fisher39 06-24-2011 04:35 PM

To echo WillisB, the PDF is useless for practical purposes because only a court can determine if a waterway is navigable-in-fact. If you come across a posted sign on a waterway, you can be guaranteed that you are dealing with a minor waterway where the status can only be determined by a lawsuit if you really wanted to challenge the property owner's right to exclude others (or you are clearly trespassing, such as if it is a "keyhole.") Not worth it if you ask me, but obviously there are others who'd disagree.

Riosacandaga 06-24-2011 07:02 PM

Adam,
I think that it is an excellent reference and does a good job of concisely clarifying boaters and landowners rights once a waterway has been designated 'navigable in fact.' This is very useful for the novice recreational paddler. I like the forward thinking statements that are relevant to the present times. Recreational use of waterways is relevant to the economic sustainability of the Adirondacks.
Thank you for posting this link. If anyone is interested here is the link to the main page and the relevance to the AW. http://www.americanwhitewater.org/co...wardship/view/

fisher39 06-25-2011 09:51 AM

Quote:

Originally Posted by Riosacandaga (Post 172101)
I think that it is an excellent reference and does a good job of concisely clarifying boaters and landowners rights once a waterway has been designated 'navigable in fact.'

Agreed! The bolded portion of course is the key caveat, but the OP referenced "private" waters (presumably posted and not determined to be navigable-in-fact), which very well could be private. If he's looking for guidance on the question of whether or not he has the right to paddle past some posted signs, this PDF is of little practical use.

MikeT 06-25-2011 01:17 PM

We Have Had This Dicussion More Than Once Before
 
Quote:

Originally Posted by Adam317 (Post 172062)
http://www.americanwhitewater.org/re...Navigation.pdf.


See attahced PDF and please comment on whether you think if this is a good rerference or not. Thanks

With all due respect to those involved in this current thread, isn't it time to give this topic a rest?

Or at the very least, maybe it's time to move this discussion to the "Current and Historical Affairs" section of the ADK Forum.

Mike

Neil 06-25-2011 04:22 PM

Quote:

Originally Posted by fisher39 (Post 172122)
If someone could generate jobs and tax revenue by selling hot dogs or holding a circus or a flea market on your front lawn, should they be allowed to do so against your wishes? Of course not. The right to exclude others is an important and valuable property right.

I know it's a common tactic to take the other guys argument to some extreme length in order to make your point but this is ridiculous. Paddling a stream equates with holding a circus now, does it?

Quote:

Originally Posted by MikeT (Post 172126)
With all due respect to those involved in this current thread, isn't it time to give this topic a rest?

Or at the very least, maybe it's time to move this discussion to the "Current and Historical Affairs" section of the ADK Forum.

Mike

Amen.


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