[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]
On June 15, 1991 five individuals traveled in two canoes and a kayak down the South Branch section of the Moose River (the South Branch). That portion of the river runs through property privately owned by the Plaintiff, Adirondack League Club (ALC). ALC, a private club, preserves 50,000 acres surrounding the South Branch for exclusive use by its members.
ALC sued the five individuals and the Sierra Club, who organized the recreational excursion, for trespass. Defendants responded that the South Branch is navigable in fact and therefore that they were entitled to an easement reserved for general public use of such waters. The State of New York and the Adirondack Mountain Club intervened as Defendants. Subsequently, all Defendants moved for summary judgment on the issue of navigability.
The Supreme Court found questions of fact pertaining to navigability and denied Defendants' motion. The Appellate Division, with two judges dissenting, reversed granting summary judgments to Defendants. The Court of Appeals granted leave to appeal.
1. Whether recreational use of a river is a relevant factor in determining if the river is navigable in fact.
2. Whether questions of fact remain, rendering summary judgment inappropriate.
3. Whether the 1948 decision of Board of the Black River Regulations District that the South Branch of the Moose River was not navigable precluded relitigation of the issue by the parties to the current action.
1. Yes. Recreational use of a river is a relevant factor in the determination of whether a river is navigable in fact.
2. Yes. Issues of material fact remain which must be determined by a trier of fact, rendering summary judgment inapplicable.
3. No. The parties are not collaterally estopped from litigating the issue of the navigability of the South Branch since the Board's 1948 decision was remitted with directions to dismiss the petitions as moot.
Prior to Adirondack League, Morgan v. King, 35 N.Y. 454 (1866), articulated the rule regarding whether a body of water was navigable in fact and therefore subject to a public easement. Morgan indicated that, traditionally, commercial utility determined a river or stream's navigability:
. . . [T]he public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines [such as single logs or sticks of timber], or of the tillage of the soil upon its banks. It is not essential to the right that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance.
Id. at 459. The rule allows the court to recognize an easement in a broad range of situations. According to Morgan, "[t]he public claim to [transportation] ought to be liberally supported." Id. It is not necessary that the stream be navigable against its current, nor is it necessary that the stream's ordinary state, throughout the year, should be such as to make it navigable. See id. As long as the stream is "navigable [for] a sufficient length of time to make it useful as a highway, it is subject to the public easement." Id. The Appellate Division has also asserted that "[n]avigability is not destroyed because of occasional natural obstructions or portages . . . and it does not lose this characteristic even if it has fallen into disuse for a hundred years." People ex rel. Erie R.R. v. State Tax Comm'n, 266 A.D. 452, 454 (3d Dept. 1943).
Without broadening the traditional test of navigability, the Adirondack League Court stated that, along with evidence of commercial utility, evidence of recreational use is relevant in determining whether a river has practical utility for trade or travel. The Court emphasized that of primary importance to the question of navigability is the river's capacity for public transport, whether for commercial or recreational purposes.
In rejecting Appellant's argument that navigability references only commercial use, the Court of Appeals cited changing patterns in river use over time as a reason for recognizing recreational use in the navigability analysis. Given the decreasing use of rivers for logging purposes, due to increasing public interest in natural resource preservation, the Court stated that recreational use is relevant in determining a river's utility.
The dissent agreed with the majority that the analysis of the traditional test for navigability in fact should include "realistic recreational" use. This change reflects the modern commercial enterprise of such recreational endeavors. The dissent argued that the amount and quality of the evidence presented by both parties were sufficient to apply the navigability test and to rule on this matter. The dissent specifically noted that the previous logging activity and present-day recreational use eliminated any issues of fact. The dissent would have affirmed the order of the Appellate Division, granting summary judgment for the Defendants.
The Adirondack League Court does not discuss how much weight should be given to recreational use in the overall scheme of the navigability test. The Court also does not distinguish pure recreational uses from commercial uses which are substantively recreational. In Adirondack League, the recreational use is of a commercial nature, but the Court does not indicate whether the outcome would be the same if the use were purely recreational.
Another question involves the tension between environmental concerns and the desire to protect recreational uses of rivers. Historically, environmentalists have agreed with the protection of the recreational use of rivers because it meant less commercial use. An increase in recreational use may have adverse effects on the rivers and resources, particularly semi-recreational use stemming from a growing environmental-tourism industry.
The protection of recreational use also creates tension between recreational and commercial users. The Court of Appeals does not address which faction has priority over use of the river. Finally, the Adirondack League Court fails to fully explain how man-made additions affect the determination of navigability. For example, it might be possible that a river could be navigable and have practical utility without additions, but the additions have been added to enhance the river's function.
Historically, states such as Massachusetts have long recognized the importance of the public's non-commercial enjoyment of navigable rivers. See, e.g., Attorney General v. Woods, 108 Mass. 436 (Mass. 1871) (stating that a "traveler for pleasure" is entitled to same protections as a "traveler for business"). Like New York, California recognizes the importance of the navigable in fact common law standard. See, e.g., State v. Superior Court of Lake County, 29 Cal.3d 210 (Cal. 1981). The Supreme Court of California has noted that public trust easements go beyond the traditional common law uses of navigation, commerce, and fisheries "to include the right to fish, hunt, bath, swim, to use for boating and general recreational purposes." See Lake County, 29 Cal.3d 210, 234, citing Marks v. Whitney, 6 Cal.3d 251 (Cal. 1971).
In contrast, at least one Pennsylvania court suggests that, as a factual issue, navigability turns on evidence of historical use. See Pennsylvania Power & Light v. Maritime Management, Inc., 693 A.2d 592 (Penn. 1997) (evidence of waterway's usage was insufficient to establish navigability).