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American Whitewater

New York Navigability Report

Summary

The New York public right of navigation allows a range of vessels, including small boats and canoes, to navigate on New York's freshwater rivers, streams, lakes, ponds, and other waterways that are navigable-in-fact. To qualify as navigable-in-fact, a waterway must provide practical utility to the public as a means of transportation; ability to support recreational use is one factor New York Courts consider in their determination.

State Test of Navigability

New York courts have noted on numerous occasions that the State of New York, in connection with the public trust doctrine, maintains an easement on navigable waterways in trust for the people of the state. New York Statutory law defines “Navigable waters of the state” as “all lakes, rivers, streams and waters within the boundaries of the state and not privately owned, which are navigable-in-fact or upon which vessels are operated, except all tidewaters bordering on and lying within the boundaries of Nassau and Suffolk counties.”1) “Navigable in fact” is defined as “navigable in its natural or unimproved condition, affording a channel for useful commerce of a substantial and permanent character conducted in the customary mode of trade and travel on water. A theoretical or potential navigability or one that is temporary, precarious and unprofitable is not sufficient, but to be navigable-in-fact a lake or stream must have practical usefulness to the public as a highway for transportation.”2)

New York Courts have interpreted the statute in a manner consistent with the traditional common law rule: in order to be navigable-in-fact, a river must provide practical utility to the public as a means of transportation. Traditionally, transportation was defined narrowly, referring to a body of water's capacity for transporting commercial goods or materials to market. However, as social and economic conditions have evolved in New York, courts have broadened their interpretation of what activities satisfy the definition of transportation.3) According to the Court of Appeals in Adirondack League Club, Inc. v. Sierra Club, the “paramount concern is the capacity of the river to transport, whether for trade or travel.”4)

Adirondack League Club, Inc. v. Sierra Club, decided in 1998 by the New York Court of Appeals, remains the most important decision on this subject. In determining whether kayakers and canoers on the South Branch of the Moose River had trespassed on a riparian owner's property, the court held that recreational use is part of the navigability analysis. Although the Court did not make a final judgment on whether the Moose River itself was navigable, the highest court in New York did take an important step in expanding the definition of what waterways qualify as navigable-in-fact.

In Adirondack League Club, however, the court did not discuss how much weight should be given to recreational use within the overall navigability test. Therefore, the issue remains somewhat open to debate. Courts have generally concluded that although the ability to sustain recreational use is a relevant factor when determining navigability, it is not the only or most important factor. Capacity to support transportation remains the paramount inquiry. In 1995, a New York State appeals court found that a pond was not navigable because there was no evidence of any historical use of the pond for commercial purposes, and the evidence of small boat and canoe recreational use on the pond was insufficient “to demonstrate that the pond has any capacity or suitability for commercial transportation.”5)

Even after the Adirondack League Club decision, New York courts have resisted the call to classify all waterways capable of recreational use as navigable-in-fact. In 2003, a New York court rejected the argument that the mere presence of motorized vessels on the Mariaville Lake was sufficient to have the lake classified as navigable.6) The court noted that plaintiff failed to “demonstrate the extent of public access to the lake, the historical use of the lake by the general public and whether the lake was navigable in its natural state.”7) The test requires that navigability be determined by the river “in its natural state and its ordinary volume” - in other words, the party seeking to prove navigability must demonstrate that the river has enough natural volume for a sufficiently long enough stretch of the year to make it useful for transportation.8).)) Offering a single example of use was not itself sufficient.9)

Those seeking to use a waterway need not have it declared navigable-in-fact by a court. If a waterway is, in fact, substantially navigable for a considerable part of the year, one can ordinarily assume that it qualifies as legally “navigable-in-fact.” Moreover, the presence of some natural obstructions will not jeopardize a waterway's status as navigable.10) Furthermore, because the presence of some obstructions is contemplated, the right to navigate includes the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands.11) Any use of private banks or riverbeds that is not strictly incidental to the right to navigate, however, can give rise to an action for trespass.12)

Extent of Public Rights in Navigable and Non-Navigable Streams

The public maintains different sets of rights, depending on whether the stream is non-tidal and navigable-in-fact or tidal and navigable-in-law. For navigable-in-law waters, those in which the tide ebbs and flows, such as tidal waters, boundary waters and the Great Lakes, the public has a right to navigate and fish.13) However, for non-tidal rivers, where the tide does not ebb and flow (classified as navigable-in-fact), the public may navigate the waters, but may not use them for other purposes; the landowners retain the “exclusive rights to the fisheries therein.”14)

Miscellaneous

The Association for the Protection of the Adirondacks prints a brochure discussing the common law right of public travel on New York's freshwater rivers, streams, lakes and other waterways that are navigable-in-fact. A copy of that brochure is available at http://www.americanwhitewater.org/resources/repository/New.York.Navigation.pdf.

For more information, go to: http://www.protectadks.org/data/content/view/137/1/.

In addition, there are ongoing efforts to pass legislation clarifying navigation rights in NY.

1) N.Y. Nav. Law § 2[4] (2006).
2) N.Y. Nav. Law § 2[5] (2006).
3) Adirondack League Club, Inc. v. Sierra Club, 92 N.Y.2d 591, 603-04, N.E.2d 1192 (1998).
4) Id. at 603 (emphasis added).
5) Hanigan v. State of New York, 213 A.D.2d 80, 84, 629 N.Y.S.2d 509 (App. Div., 3rd. Dept. 1995).
6) Mohawk Valley Ski Club, Inc. v. Town of Duansburg, 304 A.D.2d 881, 757 N.Y.S.2d 357 (App. Div., 3rd. Dept. 2003).
7) Id. at 360.
8) Id. (quoting Morgan v. King, 35 N.Y. 454 (N.Y. 1866
9) , 11) , 12) , 14) Id.
10) Adirondack League Club, Inc., 92 N.Y.2d at 607.
13) Douglaston Manor v. Bahrakis, 89 N.Y.2d 472, 678 N.E.2d 201 (N.Y. 1997).