The Battle for River Access Rights Continues
The public wins on the Moose; property owners win on the Salmon

Douglaston Manor, Inc. v. George Bahrakis, et al.
Douglaston 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 paying guests.

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. Odell (1922):
"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 underlying purposes."
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 dictum."

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 trust."

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 fishery."
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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