Fishing and Posted Property in New York State
While canoeing and kayaking have always been popular pursuits in New York State, the recent surge in kayak fishing has put a lot more people on the water. There are a few things that need to kept in mind while kayak fishing some of our great waterways, in regards to property ownership laws.
First off, it’s important to remember the difference between paddling and fishing. Per the law, any navigable waterway may be paddled legally, regardless of how it is posted. A properly posted waterway is posted on BOTH sides of the creek, meaning there you can see address information on a POSTED or NO TRESPASSING sign. Navigable-in-fact is defined as:
“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. “
In recent years, “recreational use” has become a hot button issue. Historically, navigation was based upon the ability to move goods down a waterway, in support of commerce. However, the affordability of light water craft, and a rise in the popularity of kayak sport has led the courts to change the way they look at it. Now, recreation is considered a form of commerce in many instances.
This has not been met with wild approval and agreement by many land owners.
And frankly, I think it’s hard to blame them.
Consider for a moment the implications of having a stream running through your farm deemed “navigable-in-fact”. Essentially, this opens the way for anyone to paddle through your property. While many citizens are of course upright and trustworthy people, there is an element that is not. Litter, property destruction, potential litigation due to injury on the property…. all genuine concerns for property owners.
In 2008 (I believe) John Marwell addressed the 11th annual conference of the Property Rights Foundation of America on the “Navigable Waters Controversy”. Full text is available here: http://prfamerica.org/speeches/11th/NavigableWaterwaysControversy.html
Here’s a few excerpts though to put this argument in context:
“The key legal phrase is “navigable in fact.” Water bodies that are deemed to be non-navigable in fact remain private property and there is no public right of passage. Water bodies that are deemed to be navigable in fact are held to be subject to a public right of passage over that water body. This is really the key legal issue and has given rise to an incredible amount of legislation and litigation for several hundred years in New York State and continues to today. So you can see it is very important to determine whether a water body is navigable in fact or not because, if it is not navigable in fact, no one has the right to go down that water body or to play in that water body, to recreate, or to pass through it. If it is navigable in fact, there is a public right of passage, whatever that means. And there has been a lot of litigation over the years on both the issue of whether a particular water body is navigable in fact and hence whether there is a public right of passage. If indeed there is a public right of passage, the question is just how broad is that public right of passage and what is included in it. “
“These advocates decided it was time to try to change the law so that a water body would be considered to be navigable in fact if it were capable of being floated down by a canoe or a kayak. Furthermore, that right of passage would not be obstructed if there were natural obstructions in that water body but people exercising this “public right of passage” would be able to enter upon privately owned river beds and banks in order to walk around any obstructions and to carry on such activities as would be incidental to the public right of passage. “