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Adirondack League Club, Inc. v. Sierra Club

ELR Citation: 29 ELR 20374
Nos. 170, 706 N.E.2d 1192/(N.Y., 12/17/1998)

The court holds that the ability to use a river in a recreational manner should be considered in determining whether the river is navigable-in-fact in a trespass case against kayakers and canoers on the South Branch of the Moose River in New York. The kayakers and canoers, who allegedly trespassed on a riparian owner's property, argue that the South Branch is navigable-in-fact, and, therefore, they were entitled to use the easement reserved to the public in all such waterways. The court first holds that recreational use should be part of the navigability analysis. Although practical utility for travel or transport remains the standard, transport need not be limited to moving goods in commerce. Property rights are not materially altered by this holding, and riparian owners cannot complain that this rule works a taking for public use without compensation. The court then holds, however, that summary judgment in favor of the kayakers and canoers is inappropriate. Navigability turns on evidence of actual practical use or evidence of capacity for practical use. Whether the river is navigable-in-fact is for the trier of fact to decide. Moreover, the parties' submissions fail to compel a conclusion that the practical, commercial use of the South Branch occurred in its natural state and ordinary volume. Nor does evidence of recreational use compel the conclusion that substantially unobstructed travel on the South Branch can occur periodically or seasonally. Thus, while the kayakers' and canoers' trip down the South Branch is evidence of navigability, that event is not enough to demonstrate that the river periodically has sufficient natural volume for a sufficient portion of the year to make it useful as a means for transportation. Last, the court holds that no party is collaterally estopped from litigating the issue of the South Branch's navigability based on a 1948 decision in which the case was dismissed as moot.

A dissenting judge would hold that the kayakers and canoers are entitled to summary judgment.

Counsel for Appellant
John S. Marwell
Shamberg, Marwell, Hocherman, Davis & Hollis
55 Smith Ave., Mount Kisco NY 10549
(914) 666-5600

Counsel for Respondents
Philip H. Gitlen
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600