Catskill Waters Journal

Beaver Pond: Laws and Regulations

A note left by Steve Morris, long time steward of Beaver Pond

The information assembled here originated in letter to the editor in the December 20 issue of Woodstock Times written by Steve Morris, long time de facto caretaker of Beaver Pond. His arguments for the public rights to access Beaver Pond through the parking area purchased for a dollar by Erin Moran in 2018 are explained here. They were disputed by Erin in her letter to the editor published on December 27.There are three regulations/laws that Steve uses for his arguments.

Public Navigation Rights

The pond further fits the designation Navigable-in-fact. The courts have said New York State, in accord with the public trust doctrine, holds an easement on such waterways in trust for the people of the state. (Association for the Protection of the Adirondacks)

Steve Morris, letter to the editor, 12-20-2018 Woodstock Times

NYS residents have always enjoyed the public right to navigate waterways, as the surface waters of New York State are held in public trust. However, when it comes to traveling through private land, things could get complicated.

Waterways that are affected by tides are considered “navigable-in-law” and the public has a right to navigate on them regardless of who owns the bed or whether the waterway is posted. In contrast, waterways crossing private lands which are not affected by tides are “navigable-in-fact” and subject to the public right of navigation only if the waterway has or had the capacity for trade or travel.

Public Rights of Navigation and Fishing, NYS DEC

For waterway to be navigable-in-fact, it has to have “the capacity for trade or travel.” Is Beaver Pond for trade or travel?

In order to be navigable-in-fact, a waterway must
provide practical utility to the public as a means for
transportation and travel. However, over the years, court
decisions have further detailed and described aspects of
the right. Thus, the courts have recently recognized
utility for recreational use as an important factor in
determining navigability.

Brochure, the Association for the Protection of the Adirondacks

On the DEC website, I found documents citing such court decisions as described above.

Finally, evidence of recreational use can be useful in determining whether a waterway is navigable in fact. The Court of Appeals has stated: “(w)e hold that evidence of a river’s capacity for recreational use is in line with the traditional test of navigability, that is, whether a river has practical utility for trade or travel.” Adirondack League Club, Inc. at 600. The Court also stated:
… We do not broaden the standard of navigability in fact, but merely recognize that recreational use fits within it. Many cases including Morgan v. King, support the view that a river navigable by small boat, raft or skiff is subject to the public easement… We only hold that such transport need not be limited to moving goods in commerce, but can include some recreational uses. Practical utility for travel or transport nevertheless
remains the standard
. (Emphasis added.) Adirondack League Club, Inc. at 603.
In light of these decisions, it is DEC policy that a waterway is subject to the right of navigation if it has capacity for trade or travel for either commercial or recreational purposes.

Public Rights of Navigation and Fishing, NYS DEC

Thus far, it seems completely logical that Steve found Beaver Pond navigable-in-fact. But the reality and rule of law are much more complicated. My friend in DEC pointed me to the recent case in Northwestern Adirondacks where Judge reversed his own earlier decision, and ruled in favor of landowners prohibiting paddlers claiming navigable-in-fact to travel through their land.

Aulisi wrote that waterways through private land “must provide practical utility to the public as a means for transportation, whether for trade or travel,” part of the legal test for being determined “navigable in fact” under New York’s common law, which gives the public the right to use them.

Adirondack Explorer

It is highly unlikely that Little Beaver Kill, the stream that runs through Beaver Pond, would be considered to have any practical utility. Takeaway: things are always more complicated than they seem, and always get a second opinion.

Recreational Access and Owner Liability

State General Obligation Law–under section 9-103, landowners are generally not liable for injuries sustained by recreational users on private property while engaged in recreational activities—unless—the landowner has created/allowed some sort of unusual or purposeful hazard on the land.

Steve Morris, Letter to the Editor, 12-20-2018, Woodstock Times

New York State’s General Obligations Law basically states that landowners who open their property to recreation by the public and do not charge a fee for access, owe no duty to keep the property safe for certain uses, which include hiking, hunting, fishing, canoeing, and boating among other uses.  HOWEVER, it does not include swimming or skating.

…owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs,…

New York State’s General Obligations Law

Prescriptive Easement

For Beaver Pond there is a Prescriptive Easement based on the unquestioned access to the pond for recreation allowed by the previous owner(s). This has been true for at least the past 42 years I have been here and surely more than that (NYS requires 10 years). This means people—yup—just plain people, can use the pond for recreation, as well as the designated property on Pond Road and Charlie Spanhake Road, to fish, take photos, launch boats, ice skate, corss country ski and make paintings.

Steve Morris, Letter to the Editor, 12-20-2018, Woodstock Times

The issue of prescriptive easement is an interesting one and worth the time to explore for anyone in the Catskills. This document, source of Steve’s information, is a good start. Basically, this easement gives individual(s) a right to use a portion of one’s property without the owner’s consent if a continuous and prolonged use could be proven. Steve argues that the pond has been continuously used for nearly a century—an easily provable fact—therefore the public has a right to access the pond via the parking lot without Erin’s consent.

However, according to my friend in DEC, establishment of such easement is an adversarial process almost always ending up in court. It should only be reserved as the very last resort, he warns.

In conclusion, none of the laws Steve uses in his argument give the public concrete rights to use the pond. Erin was right when she told me that it doesn’t matter how many decades people have skated or kayaked on the property that now she owns—if we focused only on the legal aspect of the situation. Steve concludes his letter with a message that leads us to another important aspect—social capital and intangible values.

What the deed holder can do:

Rejoice in being the caretaker of a community; resource, that is beautiful, a source of joy for many as recreation and artists’ inspiration.

Steve Morris
Steve in front of the beaver dam

Continue to Accessing through DEP Land

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