February 5, 2016

If they can take your property there, they'll take it anywhere…

By Mark Miller Senior Attorney
The Brandreths take on the New York State government

In 1851, the Civil War had yet to start.

Abraham Lincoln was a country lawyer from Illinois.

And Dr. Benjamin Brandreth, patriarch of the Brandreth family, bought a plot of land from the State of New York that included non-navigable waterways.

The Brandreth family—a bit larger than in 1851, but the familial descendants of that Dr. Brandreth who purchased the property in 1851—still owns the land today.

For more than 150 years, both the State and the family believed the Brandreths’ land, including waterways on the land, were private. Nevertheless, last year a New York state appellate court upended that 150 years of history in the case of Friends of Thayer Lake, LLC v. Phil Brown. The facts of the case are remarkable.

In 2009, a trespasser decided to traipse across their private property and canoe through portions of the streams, and walk across the Brandreths’ property when the streams became too rapid to canoe. Common sense suggests that the trespasser should have been ejected from the property and perhaps cited for trespassing.

But that’s not what the New York court decided. Instead, the court concluded that the Brandreths’ waterway was now—sha-zam!—property available for public use. In a remarkable footnote, the court acknowledged that everyone would have understood in 1851 that the Brandreths owned the streams and that they were not available to the public, and that further they recognized that their decision “may destabilize long-established expectations as to the nature of private ownership.”

To readers who think a court “destabilizing long-established expectations as to the nature of private ownership” should give that court pause, I applaud your adorable naiveté. After all, how often does a court get to overturn hundreds of years of settled law? And transfer property availability from private owners to public trespassers at the same time?

The Brandreths have appealed this lower court’s erroneous decision to New York’s highest court, and this week Pacific Legal Foundation filed an amicus brief on behalf of the New York Farm Bureau and the Property Rights Foundation of America supporting the Brandreths. In our brief, we argue that the lower court’s decision “injected uncertainty into private property ownership and undermined the rights of all New York landowners.”  For those reasons, and others, we explain that:

the lower court’s decision unfairly destroys the Brandeths’ vested property rights and expectations and takes their property without compensation. Therefore, [we submit that] this Court should reverse the decision below.

It’s up to you, New York [Court of Appeals], New York.

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