I found this to be interesting. It deals with many of the same issues and how different states treat raparians rights and navigable in fact water ways.
liibulletin-ny
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Douglaston Manor, Inc. v. Bahrakis, 89 N.Y.2d 472 (Feb. 11, 1997).
FISHING RIGHTS - NAVIGABLE-IN-FACT - NAVIGABLE-IN-LAW - TIDAL - PUBLIC TRUST - EASEMENT - NAVIGATIONAL SERVITUDE
THE NAVIGATIONAL SERVITUDE RETAINED BY NEW YORK OVER NON-TIDAL NAVIGABLE-IN-FACT WATERS IS NOT EQUIVALENT TO A PUBLIC TRUST INTEREST, AND DOES NOT PRECLUDE POSSESSION OF EXCLUSIVE FISHING RIGHTS BY PRIVATE OWNERS OF THE LAND IN QUESTION.
[
SUMMARY] | [
ISSUE & DISPOSITION] | [
AUTHORITIES CITED] | [
COMMENTARY]
SUMMARY
Plaintiff owns approximately one-mile long strips of both banks of the Salmon River in Oswego County and the riverbed between these two strips. Defendants anchored their boats and fished within this portion of river. Plaintiff contends that it has exclusive fishing rights in its own property.
Plaintiff sued in trespass for both compensatory and punitive damages as well as injunctive relief. Defendants counter-claimed for nuisance and intentional interference with business relations. Plaintiff moved for partial summary judgment on its trespass claim. Defendants cross-moved for partial summary judgment. The New York Supreme Court granted Plaintiff's motion and held that Defendants knowingly trespassed onto Plaintiff's property. The court held that the public right of navigation in a navigable-in-fact river, such as the Salmon River, does not include a public right to anchor and fish. The Appellate Division dismissed Plaintiff's complaint and held that the public has the right to fish, ferry, and transport on navigable waters of the Salmon River.
ISSUE & DISPOSITION
Issue
Whether ownership of a riverbed in non-tidal navigable-in-fact waters entitles the owner to exclude the public from fishing in the effected portion of the river.
Disposition
Yes. The New York Court of Appeals reversed the Appellate Division and reinstated the order of the supreme court, holding that the public may be excluded from fishing in the privately-owned portion of a riverbed.
AUTHORITIES CITED
Cases Cited by the Court
- Dalton v. Levy, 258 N.Y. 161 (N.Y. 1932).
- Smith v. Odell, 234 N.Y. 267, 272 (N.Y. 1922).
- Lewis Blue Point Oyster Cultivation Co. v. Briggs, 198 N.Y. 287 (N.Y. 1910).
- Langdon v. Mayor, etc., 93 N.Y. 129 (N.Y. 1883).
- Smith v. City of Rochester, 92 N.Y. 463, 480 (N.Y. 1883).
- Brookhaven v. Strong, 60 N.Y. 56, 71-72 (N.Y. 1875).
- Morgan v. King, 35 N.Y. 454 (N.Y. 1866).
- Hooker v. Cummings, 20 Johns. 90, 99 (N.Y. Sup. Ct. 1822).
- Hardin v Jordan, 140 U.S. 371 (1891).
- New York State Dep't of Envtl. Conservation v. Federal Energy Regulatory Comm'n, 954 F.2d 56 (2d Cir. 1992).
Other Sources Cited by the Court
RELATED SOURCES
- Adirondack League Club, Inc. v. Sierra Club, 201 A.D.2d 225 (N.Y. App. Div. 1994).
- Jacobs v. Lyon Township, 502 N.W.2d 382 (Mich. Ct. App. 1992).
- Parker v. Durham, 365 S.E. 2d 411 (Ga. 1988).
- J.J.N.P. Co. v. State of Utah Div. of Wildlife Resources, 655 P.2d 1133 (Utah 1982).
- People v. Sweetser, 72 Cal. App. 3d 278 (Cal. Ct. App. 1977).
- Kelley v. Hallden, 214 N.W.2d 856 (Mich. Ct. App. 1974).
- Curry v. Hill, 460 P.2d 933 (Okla. 1969).
- Charles C. Marvel, Annotation, Public Rights of Recreational Boating, Fishing, Wading, or the Like in Inland Stream the Bed of Which is Privately Owned, 6 A.L.R. 4th 1030, 1040 (1981).
COMMENTARY
State of the Law Before Douglaston Manor
The case law which directly addresses the issue before the court is both very old and apparently inconsistent on the question whether the owners of the land on the river banks of a navigable river must part with any other ownership rights along with the public's right of passage through the river stream.
An 1822 New York Supreme Court case held that the public does not get fishing rights in addition to the right of passage.
In the case of a private river, . . . he who owns the soil has, prima facie, the right of fishing, . . . that the river was liable and subject to the public servitude, for the passage of boats; the private rights of the owners of the adjacent soil were no[t] otherwise affected, than by the river's being subject to public use.
Hooker v. Cummings, 20 Johns. 90, 99 (N.Y. Sup. Ct. 1822).
However, there is contrary authority to this position from the New York Court of Appeals in
Smith v. City of Rochester. 92 N.Y. 463, 480 (N.Y. 1883). The
Smith court recognized the English distinction between tidal waters and inland rivers and found it to be inapplicable to the question of riparian rights in this country. The court found that the term "navigable" under the common law must be enlarged to encompass both fresh and salt water which is in fact navigable.
Smith v. City of Rochester, 92 N.Y. at 479-480. This court held that "the public has the right of 'fishing, ferrying and transportation' in the navigable waters of the State whether they be fresh or salt"
Douglaston Manor, Inc. v Bahrakis, 218 A.D.2d 300, 302 (N.Y. App. Div.. 1996) (quoting
Smith, 92 N.Y. at 479-480).
Prior to the Douglaston Manor litigation, the most recent word on this issue was a 1994 Third Department case,
Adirondack League Club, Inc. v. Sierra Club. 201 A.D.2d 225 (N.Y. App. Div. 1994). The lack of significant case law was addressed by both the defendant and the plaintiffs in the case. The plaintiffs argued that "the absence of any case law specifically including such activities in the public right of navigation establishes that no such right exists," while the defendants argued that the absence of case law was "the result of no one ever having previously claimed that the public right of navigation did not include the use of the river bed to portage or engage in other activities incidental to and necessary for navigation."
Id. at 232.
The issue in
Adirondack was not fishing rights but other rights that defendants claimed were a part of the right the public had in navigating the river. The plaintiff contended "that the public right of navigation is limited to riding in boats and does not include the right to get out of a canoe and walk in the bed of the river to guide the canoe through shallow water, avoid rocks or portage around rapids."
Id. Citing
Smith, the defendants claimed that "[p]ursuant to the public trust doctrine, the public right of navigation in navigable waters supersedes plaintiff's private right in the land under the water."
Id. The
Adirondack court agreed with the defendants "that the public right of navigation includes the right to engage in reasonable activities that are incidental to and necessary for navigating the river."
Id.
Relying on
Adirondack, the Appellate Division Court which heard the
Douglaston Manor appeal made the next connection by finding fishing to be an activity incidental to navigating the river and not trespassing as it would be if the defendant's actions involved wading "upon the banks of the river or [tying] a boat or line to an object upon the shore."
Douglaston Manor, 218 A.D.2d 300, 302. The court reconciled the discrepancy between the two older authorities by following the
Smith case and rejecting
Hooker as not binding authority.
The factual question whether the Salmon river is navigable was settled by the Second Circuit in
New York State Dep't of Envtl. Conservation v. Federal Energy Regulatory Comm'n, 954 F.2d 56 (2d Cir. 1992). This court found that " the largely undisputed facts, assessed in the light of pertinent legislation and judicial precedent, establish the navigability of the Salmon River."
Id. at 62.
Effect of Douglaston Manor on Current Law
The
Douglaston Manor court reconciles the apparent inconsistency in the older case law by looking to
Hooker for guidance while distinguishing
Smith v. City of Rochester. The court finds that the "ratio decidendi of
Smith does not support the destabilizing conclusion defendants promote from the dictum."
Douglaston at para. 14.
The court distinguishes between rivers found to be navigable at common law, which generally have public trust protections, and navigable-in-fact rivers, which generally include a public right to navigation alone. To illuminate this distinction the court cites the 1891 Supreme Court case
Hardin v Jordan, 140 U.S. 371.
At common law, only arms of the sea, and streams where the tide ebbs and flows, are deemed navigable. Streams above tide-water, although navigable-in-fact at all times, or in freshets, were not deemed navigable in law. To these, riparian proprietors bounded on or by the river could acquire exclusive ownership in the soil, water, and fishery, to the middle thread of the current; subject, however to the public easement of navigation.
Id. at 383-384.
The Second Circuit finding that the Salmon River is navigable-in-fact grants to the public the right to navigate its waters, but the right to navigate does not extend to fishing since the river does not qualify as a navigable river at common law. The court finds that the easement the state retains to allow the public to pass through the waters "does not involve a surrender of other privileges which are capable of enjoyment without interference with the navigator" quoting
Smith v. Odell, 234 N.Y. 267, 272 (N.Y. 1922).
After deciding this threshold issue of law, the court analyzes several other issues: whether the state of New York had the power to transfer this ownership right and if in fact such ownership right was transferred by the state in the 1792 grant. The court held that the State has the authority to convey such property rights based in part on evidence that New York often purchases public fishing rights from private riparian owners of navigable-in-fact rivers. The court examines the language used to convey the property in 1792 and finds it "sufficient to transfer to the grantee the bed of the river and associated exclusive right of fishery."
Douglaston at para. 17 (citing
Trustees of Brookhaven v. Strong, 60 N.Y 56, 71-72 (N.Y. 1875)).
Unanswered Questions
The
Douglaston decision may cause private owners along navigable-in-fact waters, where the land grant does not specifically include a reservation to the state of private fishing or other rights, to begin to exclude the public from such non-navigational activities. This could present a great hindrance to the public enjoyment of those rivers. The State may, in turn, increase efforts to acquire the fishing rights on these rivers for public use.
The court seems to emphasize the fact that the Plaintiff owns the riverbed. When the private owner on a navigable-in-fact river does not hold title to the riverbed, does the right to exclude the public end at the river's edge? Does ownership of property on only one side of the river also carry with it private fishing rights? The court does not clarify which facts are significant and what may trigger an exception to the rule. Also, it remains to be seen how the court will treat rights which are even further removed from navigation, such as swimming.
Fishing guides in particular now stand to lose a great deal of business if this decision is endorsed by many private riparian owners. On the other hand, a decision against the Plaintiff in this case would have removed private incentives to maintain river beds and fish populations.
Survey of the Law in Other Jurisdictions
Several jurisdictions have held that no public fishing rights exist in the beds of certain privately owned waterways, "expressly despite" their navigability in fact. Charles C. Marvel, Annotation,
Public Rights of Recreational Boating, Fishing, Wading, or the Like in Inland Stream the Bed of Which is Privately Owned, 6 A.L.R. 4th 1030, 1040 (1981). In addition to New York, the annotation specifies the following jurisdictions: Connecticut, Illinois, Maine, Massachusetts, North Carolina, and Tennessee. The pre-1900 dates of many of these cases indicates a lack of recent authority in this area.
Id.
Other jurisdictions have held that no public fishing rights exist in waterways the beds of which are privately owned without explicitly treating the issue of in fact navigability: Alaska, Colorado, Indiana, Louisiana, Missouri, Montana, New Hampshire, Pennsylvania, Virginia, and Washington are among the states so holding.
Id. at 1038. The age of the cases indicates a paucity of recent authority in this area as well. More current authority comes from Georgia.
See Parker v. Durham, 365 S.E. 2d 411 (Ga. 1988) ("If the riparian owner owns upon both sides of [a stream where the tide does not ebb and flow], no one but himself may come within the limits of his land and take fish there.").
Against this interjurisdictional precedent rises the contrary conclusion of appellate courts in states such as California, Michigan, Ohio, Oklahoma, and Wisconsin. 6 A.L.R. 4th at 1042-1045. Each of the foregoing jurisdictions has held that public fishing rights exist even in streams that have privately owned beds.
See, e.g.,
Jacobs v. Lyon Township, 502 N.W.2d 382 (Mich. Ct. App. 1992) ("the members of the public who are entitled to access to navigable waters have a right to use the surface of the water in a reasonable manner for such activities as boating, fishing, and swimming");
J.J.N.P. Co. v. State of Utah Div. of Wildlife Resources, 655 P.2d 1133 (Utah 1982) (public possesses easement over water regardless of who owns the beds beneath water, and if public can obtain lawful access to water, it has a right to fish);
People v. Sweetser, 72 Cal. App. 3d 278 (Cal. Ct. App. 1977) ("the public has a right to use for boating, swimming, fishing, hunting and all other recreational purposes, any part of a river that can be navigated by small recreational or pleasure boats, even though the river bed is privately owned");
Curry v. Hill, 460 P.2d 933 (Okla. 1969) (the owner of land through which a navigable in fact waterway flows who "owns the beds thereof subject to the rights of the public to use the river as a public highway, does not thereby have exclusive fishing rights therein"). Public trust doctrine underlies this latter view.
See,
e.g.,
Kelley v. Hallden, 214 N.W.2d 856 (Mich. Ct. App. 1974) ("if a river in Michigan is found to be navigable, the riparian owner holds title to the river bed subject to a perpetual trust to secure to the public their rights of fishing and navigation").
Prepared By:
- Quentin C. Faust, 97
- Joshua D. Fuller, 98
- H. Marlow Green, 97
- Pamela T. Harris, 98
- Farah Mollo, 97
- Phillip M. Pippenger, 98
- Jared B. S. Steele, 98
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