The Battle for River Access Rights
The public wins on the Moose; property owners win on the Salmon
Douglaston Manor, Inc. v. George Bahrakis, et al.
Manor, Inc. owns around 20,000 feet of shoreline on the Salmon River,
including both sides of the waterway and the riverbed itself. The Salmon, an
incredibly popular waterway for various types of fishing, is located to the
west of the Adirondacks, and flows in a westerly direction into Lake
Ontario. The Lodges at Douglaston Manor offer luxury accomodations on the
property, complete with access to the Douglaston Salmon Run, the stretch of
the Salmon River owned by the estate. After a group of fishermen, none of
whom were guests at the Manor, anchored their boats in the Salmon Run and
proceeded to fish without permission, the owners of Douglaston Manor moved
to reserve fishing rights on this section of the river exclusively for their
In the past, Douglaston Manor had no issue when the public fished from their
boats on their way through the Manor's private property. However, in 1994, a
group of guides "entered upon the river at a point upstream of
Douglaston's property, navigated into and within the Salmon Run, and
anchored, waded and fished within Douglaston's protected enclave."
Douglaston Manor proceeded to sue the group of guides for trespassing and
attempted to gain an injunction against future fishing and anchoring within
the Douglaston Salmon Run. In response, the defendants counter-sued for
nuisance and interference with business relations, due to the disruption of
their guided fishing practices. At issue in either suit was not the right of
the guides to merely be on the river. The Salmon River is navigable-in-fact,
and by virtue of this, the State holds a public easement on the waterway, on
which the public may pass. Douglaston Manor held that this right to navigate
does not carry with it the right to fish, anchor, or do anything but
navigate. The defendants disagreed. The New York Supreme Court (ironically
not the highest court in the State) agreed with Douglaston Manor, and
granted the injunction against future fishing in the DSR. Upon appeal, the
Appellate Court reversed the lower court's decision, and granted the
defendants' request for an injunction against any future interference with
their right to fish on the Salmon.
In a February 11, 1997 decision, the Court of Appeals, the State's highest
court, unanimously reversed the Appellate Court's decision and reinstated
the injunction against the guides. The major point in the case was the
distinction between waterways classified navigable as a matter of law
("navigable-in-law") versus those classified navigable as a mater
of fact ("navigable-in-fact"). According to the New York Supreme
Court case Hooker v. Cummings (1822), a navigable-in-law waterway is
defined as one "in which the tide ebbs and flows." Such a
waterway is "devoted to the public use, for all purposes, as well
for navigation as for fishing." Further, "other rivers, in
which the tide does not ebb and flow, [are classified] as navigable [in
fact], but not so far belonging to the public as to divest the owners of the
adjacent banks of their exclusive rights to the fisheries therein."
The Salmon River is not affected by tides, and therefore fishing rights are
not expressly granted to the public; they are in fact expressly reserved for
the landowner. This opinion was upheld a century later in Smith v.
"The public right ... must be held limited in such a
situation to the right to use the waters for the purposes of a public
highway. ... [T]he easement of passage over navigable waters does not
involve a surrender of other privileges which are capable of enjoyment
without interference with the navigator."
Not wishing to reverse centuries of precedent, the Court of Appeals
concurred in their 1997 decision:
"A first premise for the analysis of this case is that
this Court has long held that ... land under navigable-in-fact rivers
remain[s] subject to an implied, reserved public easement of navigation.
Douglaston acknowledges as much, but adds, correctly in our view, that this
limited easement extends only to the fulfillment of the proposition's
The defendants countered by claiming that in the modern era, there is little
remaining distinction between waterways classified as navigable-in-law
versus those classified as navigable-in-fact. Therefore, they claimed, the
public's right to fish extends to all navigable waters. The Court rejected
this claim, stating that "This ... is too simplistic an approach,
which would precipitate serious destabilizing effects on property ownership
principles and precedents." The guides then drew on Smith v.
City of Rochester (1883), which held that public rights to
"fishing, ferrying and transportation, are preserved in all
navigable waters." This also was rejected by the Court, which
stated that the context of Smith v. Rochester "does not support the
destabilizing conclusion [the] defendants promote from the
The Court further stated that New York State's practice of purchasing
fishing rights from private landholders on navigable-in-fact rivers was
evidence that the landholders did in fact hold exclusive fishing rights on
these rivers. The Court saw no reason to uphold the view that "the
State has been expending public monies unnecessarily on rights, according to
defendants' theory, the State already irrevocably holds in public
Finally, the defendants claimed that Douglaston Manor's title to the lands
in question "neither expressly granted exclusive fishing rights nor
relinquished the public right of fishery." Again, the Court
rejected this claim, stating that:
"This Court has previously held that when land under
rivers is included within the boundaries of a grant, the general language of
conveyance is sufficient to transfer to the grantee the bed of the river and
associated exclusive right of fishery. ... Moreover, the State's reservation
of ... specific public rights of way, without reserving to the public a
right of fishery, additionally supports our analysis and conclusion that
Douglaston enjoys a duly conveyed exclusive right of
This decision has far-reaching effects on the general public of New York.
Fishermen must now be even more keenly aware of the ownership of the land
they fish on. The State may now be pushed to purchase fishing access rights
on more and more rivers. The Douglaston case establishes that public access
to a waterway for the purposes of navigation does not extend beyond
navigation, a position reiterated a year later in Adirondack League Club
v. Sierra Club (click the link below for more details).
Read about Adirondack League Club v.
Sierra Club, the December, 1998 decision upholding paddlers' rights on
the Moose River.
View the full
text of the decision of the Court of Appeals. (external link to a page
at Cornell University)
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