Legal Memorandum LU10


THE RIGHT TO NAVIGATE ON INLAND WATERWAYS--
THE ADIRONDACK LEAGUE CLUB CASE

New York has thousands of miles of rivers and other non-tidal inland waterways that were the conduits for unfettered commerce prior to the advent of the railroad and modern highway. Historically, a river's navigability was determined solely by its capacity to carry goods to market. For example, an early New York case recognized the importance of the timber industry and held that a river could be deemed navigable in fact if "capable of floating to market single logs of sticks of timber." 1 Thus, where waterways have a practical utility for commerce, they are public highways subject to an easement for public travel.

The public has a common law right to navigate over non-tidal waterways that in their natural, non-impounded state can accommodate “commercial use”. These waterways are considered to "navigable in fact"2 even if they have privately-owned banks and beds.3 Navigable-in-fact waterways are analogous to public highways in that the general public has an right to navigate over them. To be navigable-in-fact, a waterway need not be navigable in both directions or during all twelve months of the year, however, it must be traversable during non-flood periods.

In Adirondack League Club, Inc. v. Sierra Club, et al.,4 the New York Court of Appeals extended the common law test in a case where two canoeists and a kayaker traveled down the South Branch of the Moose River in Herkimer County through private property on a trip that involved several portages on land around obstacles in the river. The Court of Appeals held that evidence of a river’s capacity for a recreational use can be used to determine whether a river has practical utility for trade and travel. Thus, the Court abandoned the view that navigability depended solely on whether a waterway could be used to float goods to market, and held that evidence of recreational use will support a finding that a river is susceptible to commercial use.

Also, in Adirondack League Club the Court of Appeals recognized the public’s right to portage around obstacles in the waterway. It noted, “the existence of occasional natural obstructions do not destroy the navigability of a river. . .[i]n order to circumvent these occasional obstacles, the right to navigate carries with it the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands." Recreational boaters, however, may only enter onto the adjacent shore in aid of navigation to walk around obstructions in the waterway, scout for potential hazards to navigation or temporarily wait out a storm.

The Adirondack League Club decision updated the common-law navigability standard to equate modern recreational uses with historical commercial uses and, therefore, made it easier for boaters to determine which inland waterways they may traverse. New York, however, does not maintain a central "registry" of waterways that are navigable in fact. These determinations will continue to be made by the court on a case-by-case basis.


1 Morgan v. King, 35 N.Y. 454, 459 (1866).

2 Navigation Law § 2 (5).

3 New York also applies the common law standard that the public has a right of passage on all waterways that are influenced by the tides. Such waterways are said to be "navigable in law."

4 92 N.Y.2d 591 (1998).