All information here was provided by Steve Morris, a Pond Road resident, and Bill Rudge, NYS DEC Region 3 Natural Resources Supervisor (note: his advice here is given as a friend and not as a representative of DEC). Steve wrote a letter in 12/20 issue of Woodstock Times in which he elaborates on this information.
As Steve Morris states in his letter in Woodstock Times, there are at least three laws that are related to the recreational use at Beaver Pond.
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.
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.
There you have it. It is DEC Policy that a waterway is subject to the right of navigation for recreational purpose. Does this mean the public has the right to navigate the water above the bed held in deed belonging to Erin? Not so fast. Bill Rudge had this to say:
While I can’t say definitively, it is highly unlikely that Yankeetown Pond is navigable in fact. Below is a link to a very recent court ruling on a case in the Adirondacks that provides some clarity on what is needed to prove a water body is navigable in fact:
https://www.adirondackexplorer.org/stories/judge-rules-for-landowners-in-paddling-caseWhile some rivers, like the Hudson and the Delaware are clearly navigable waterways with a long history of navigation for commercial purposes, I would venture to guess that the Little Beaverkill lacks such history.
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, according to Bill Rudge.
If Erin is interested in allowing recreational access to the property, to include activities not covered by the General Obligations Law and she has homeowners insurance, she could discuss the issue with her insurance company, as they may cover liability associated with recreational use of this property. Another option would be to convey the property to a land trust or a municipality that would be able to take on the liability associated with recreational use of the property.
Bill Rudge, email to Keiko
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.
Not so fast. While he does not mention whether the Prescriptive Easement could be applied to Beaver Pond, Bill does discourage legal challenge for its establishment.
I’ll start by stating you are correct, this is a legal question that I’m not qualified to answer. You should consult an attorney with knowledge of real property law.
However, my thoughts are that this is the most adversarial way of resolving this issue, and my recommendation would be that this would be the avenue of last resort. Likely the determination of a prescriptive easement for public access can only be made by a court.
In conclusion, none of the three laws Steve describes places the public solidly in a favorable position—if we are focusing on the legal aspect of this 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
