Fishing rights in nontidal, navigable New York State rivers: a historical and contemporary perspective.

• Author: Malmsheimer, Robert W.
• Position: New York

1. INTRODUCTION

   On February 11, 1997, in Douglaston Manor, Inc. v. Bahrakis(1) the New York Court of Appeals ruled that the rights of New York's more than one million anglers(2) are subservient to the rights of landowners whose lands contain nontidal, navigable-in-fact rivers.(3) Despite pleas by the defendants and recreation groups,(4) the court refused to rule that the public has the right to fish in all navigable rivers in the state.(5) Instead, the Court of Appeals affirmed the state's adherence to the common law property distinction between navigable-in-law and navigable-in-fact rivers.(6) The court held that while the public has the right of navigation over the privately-owned bed of a navigable-in-fact river, the public does not have the right to fish in such a waterway.(7)

   This ruling expanded the private property rights of riparian landowners.(8) Previously, New York anglers had the right to fish in a navigable-in-fact river as long as fishing was incidental to the public's right of navigation.(9) Therefore, if the angler did not anchor, wade, or in any way contact the private lands along or under the river, the angler had the right to fish in that river.(10) This recent Court of Appeals decision now means that a landowner can maintain a trespass action against anglers, who while fishing, simply drift or troll over their lands, despite the fact that the angler has no contact with the privately owned riverbed, is harvesting a state resource,(11) and has the right to pass over those lands.(12)

   The court's decision has evoked analysis,(13) concern,(14) jubilation,(15) and even legislation.(16) Yet most commentators have failed to understand the truly unique position of the judges on the Court of Appeals because the Douglaston case presented the court with the opportunity to decide an age-old question: the public's right to fish in nontidal, navigable rivers.(17) This subject has been the focus of some of the most revered minds in Anglo-American jurisprudence, including Lord Matthew Hale and Chief Judge James Kent.(18) Nevertheless, the historic legacy of these legal giants should only command so much weight in deliberations (especially when English common law is the only precedent affecting the court's decision), since judges must also evaluate the public policy implications of their decisions. The Court of Appeals decision in this case was no different.

   After providing a summary of the Douglaston case, this Article examines the influence of both of these factors on the court's decision. First, this Article examines the history of the public's right to fish in nontidal, navigable rivers.(19) Then, the Article will discuss the public policy implications of the court's decision.(20)

2. DOUGLASTON MANOR, INCORPORATION V. BAHRAKIS

   The Douglaston case raised an issue which had never been directly addressed by the court of highest appellate jurisdiction in New York State.(21) To understand this issue and the Court of Appeals' decision, it is necessary to delve into the facts, allegations, and procedural history of the case.(22)

   The facts of the case are straightforward.(23) Douglaston Manor, Inc. owns the "one-mile-long sections of both shorelines [along and under] the Salmon River in Oswego County."(24) Douglaston Manor "traces its title back to a conveyance from the pristine State of New York in 1792," and "pays taxes upon the entire property, including [the] riverbed land."(25) The corporation `operates the Douglaston Salmon Run within its section of the river."(26) The salmon run is a "private sport fishery from which the general public is excluded and for which users pay Douglaston a fee."(27)

   The defendants, ten commercial fishing guides, "navigated into and ... [then] anchored, waded and fished within Douglaston's protected enclave."(28) Douglaston Manor sued the defendants for trespass, "assert[ing] that it possesse[d] exclusive fishing rights by virtue of its ownership of the bed and both banks of the river."(29) The guides counterclaimed on the basis of interference with business and nuisance seeking compensatory and punitive damages as well as a permanent injunction against Douglaston Manor's actions.(30)

   The New York State Supreme Court, Oswego County, held, on Douglaston Manor's summary judgment motion, that defendants knowingly trespassed upon its property.(31) The trial court found that the nontidal Salmon River was a navigable-in-fact river.(32) Based on this classification, the court ruled that Douglaston Manor owned the riverbed subject to the public's right of passage over those lands.(33) However, the court also held that "the right of passage did not include the right to fish in that portion of the river.(34)

   The Appellate Division, Fourth Department, overruled the trial court's decision and denied Douglaston Manor's motion for summary judgment.(35) Instead, the Appellate Division relied on an 1883 Court of Appeals decision, Smith v. City of Rochester,(36) to hold that "the public has the right of `fishing, ferrying and transportation' [on] the navigable waters of the State, whether they be fresh or salt," including the Salmon River as it flows over Douglaston Manor's property.(37) Accordingly, the court dismissal the complaint.(38)

   On Douglaston Manor's appeal, the New York Court of Appeals was faced with two questions to resolve in determining the issue of ownership entitlements of the Manor.(39) First, does New York State have "the power to transfer exclusive fishing rights to private parties in a nontidal, navigable ... river, as part of a conveyance of property"?(40) Second, did the State in fact transfer the exclusive fishery to Douglaston Manor's predecessors in the 205-year-old Macomb Patent?(41) The court ruled for Douglaston Manor on both questions.(42)

   To reach its decision, the Court of Appeals reviewed the common law distinction between a river classified as navigable-in-law versus one classified as navigable-in-fact.(43) Under common law, "a river, in which the tide ebbs and flows" is classified as navigable-in-law.(44) As such, the river is "devoted to the public use, for all purposes" including navigation and fishing.(45) All nontidal rivers are classified as navigable-in-fact.(46) The landowners adjoining such a navigable-in-fact river own the riverbed, but hold their land "subject to an implied, reserved public easement of navigation," which allows the public the right of passage over these waters.(47) However, the court ruled that this "`easement of passage over navigable waters does not ... surrender ... other privileges [including the exclusive fishery] which are capable of enjoyment without interference with the navigator.'"(48)

   Directing this nomenclature and analysis to the Salmon River, the Court of Appeals relied on an 1822 New York State Supreme Court case, Hooker v. Cummings,(49) for "important guidance" on this issue.(50) The Hooker case, which involved facts similar to Douglaston,(51) held that the Salmon River was a navigable-in-fact river since it lacked tidal flow.(52) Based on this determination, the Court of Appeals held that the state had the power to transfer the exclusive fishing rights in the Salmon River to Douglaston Manor.(53)

   The court then addressed the second issue: Did the State transfer the exclusive fishery to Douglaston Manor's predecessors in the 205-year-old Macomb Patent?(54) Relying on property law, the Court of Appeals held that when a grantor includes land under a river within the boundaries of a deed, the conveyance includes the riverbed and the associated right of fishery, unless specifically excluded.(55) The court held that while the public has the right to navigate the Salmon River at the locus in quo, it does not have the right to fish there.(56) Accordingly, the Court of Appeals reversed the Appellate Division, and reinstated the New York State Supreme Court's order as the final judgment in the case.(57)

3. THE HISTORY OF THE PUBLIC'S RIGHT TO FISH IN NONTIDAL, NAVIGABLE RIVERS

   The issue before the Court of Appeals in Douglaston was not original. Many of the greatest jurists in Anglo-American history have rendered opinions on this subject.(58) This Part examines the history of the public's right to fish in nontidal, navigable rivers.(59) It begins with a history of the English common law which forms the foundation of American legal thought on the law of watercourses.(60) Next, this Part discusses the history of New York law and why the English common law was the only precedent affecting the Court of Appeals' decision.(61) In conclusion, this Part analyzes how the influence of this legal legacy affects the current Court of Appeals, as revealed in Judge Bellacosa's opinion in Douglaston Manor.(62)

   1. The English Common Law

      The earliest English authority on waterways was Bracton, the Chief Judge of England during the reign of Henry III.(63) According to Bracton, all rivers and the right to fish therein, were public.(64) This corresponded with Roman law.(65) Therefore, under early English common law there was no distinction between rivers that were navigable and those that were not; the public had the right to fish in all rivers.(66)

      The first modern English common law insight into the question of fishing rights in rivers was the seminal 1611 Irish case of The Royal Fishery of the Banne [Banne Fishery].(67) The issue in this case was whether a royal grant of certain lands adjacent to the River Banne conveyed a salmon fishery at a point where the river was navigable.(68) The court first acknowledged that "the rule of the [Roman] law ... is found in Bracton, yet by the common law of England, a man may have a[n] ... interest ... in [the] fishery."(69) The court then ruled:

      There are two kinds of rivers; navigable and not navigable. Every navigable river, so high as the sea flows and ebbs in it, is a royal river, and the fishery [therein] ... belongs to the [K]ing by his prerogative; but in every other river not...