Arkwright Falls

A place to discuss waterfalls. Including the parks that house them and the hikes to get to them.

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Scott1
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Lmccor, sorry for not responding quickly, I keep for getting my password here...LOL. Yes you may & enjoy your hike, Bring a rope & don't leave it or it's mine forever
eromrab
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Sorry to reply to a post so old, but there is misinformation here.

First off, you can enter the creek through the County Park on Ball Road (there is a small parking area on the side of Ball Road and a trail that leads all the way to the water).

Once you are in the creek, there is nothing any land owners can do unless you trespass onto their land, but as for the creek bed, you are allowed to traverse up and down without regard to ownership of the land. It is a public waterway and the public is allowed to go up and down it. They may not enter/leave from private property, nor may they camp, have fires, etc. on the private property along the sides of the creek.

Also, a note, if you are travelling along the length of the creek, you are allowed to take the shortest SAFE route available around the obstacle (waterfalls, etc.) even if it means entering onto posted private property.

While I definitely feel for your inability to keep idiots from leaving beer cans and being general morons, you have no legal right to keep people from entering the falls from the method I described, and I would even argue that they have a legal right to enter into your property to get to the topside of the falls. Now, whether or not they can repeatedly do that to jump off the falls, I would probably not think that is the case, but if they are just going up or down the river, then they have that right.

How to get to falls without trespassing: https://plus.google.com/109645117284887 ... a71NhDWmUA
Relevant laws regarding public waterways in NY:
http://www.dec.ny.gov/regulations/74771.html
http://www.dec.ny.gov/outdoor/8371.html
eromrab
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Quoted from http://www.dec.ny.gov/regulations/74771.html (highlights and underlines are all mine)

If a waterway satisfies all the criteria for being navigable-in-fact, it is open to public navigation for any purpose, whether commercial or recreational, even if the stream cannot be navigated against the current. Moreover, a waterway, once navigable, remains navigable even if navigability subsequently diminishes or ceases. People v. System Properties, Inc. 120 N.Y.S. 2d 269, 278 (3d Dep't 1953).

Furthermore, the right of navigation includes all incidental uses that are reasonably necessary in order to enjoy the right, such as portaging over private property to avoid rapids, falls or obstructions, as long as this occurs by the shortest, most direct safe route. The public also has the right to walk on the bed of the waterway to guide a boat through shallow areas, to go on privately-owned shoreline to scout for the best route, and to otherwise touch the streambed incident to navigation. Adirondack League Club, Inc. at 607. However, the public right of navigation does not include a right to go on private property to picnic, hike, camp, or hunt, or to cross private property to gain access to or egress from navigable waterways. In other words, the public right of navigation does not include intrusion on private property except as necessary for safe water passage.

Finally, evidence of recreational use can be useful in determining whether a waterway is navigable in fact. The Court of Appeals has stated: "(w)e hold . . . that evidence of a river's capacity for recreational use is in line with the traditional test of navigability, that is, whether a river has practical utility for trade or travel." Adirondack League Club, Inc. at 600. The Court also stated:

... We do not broaden the standard of navigability in fact, but merely recognize that recreational use fits within it. Many cases including Morgan
v. King, support the view that a river navigable by small boat, raft or skiff is subject to the public easement... We only hold that such transport
need not be limited to moving goods in commerce, but can include some recreational uses. Practical utility for travel or transport nevertheless
remains the standard. (Emphasis added.) Adirondack League Club, Inc. at 603.

In light of these decisions, it is DEC policy that a waterway is subject to the right of navigation if it has capacity for trade or travel for either commercial or recreational purposes.

Waterways subject to the public right of navigation may be navigated for any commercial or recreational purpose, and attempts by landowners to interfere with the public's right to navigate violates the State's trust interest in the waterway, i.e., the owner of a navigable waterway has no right to close it to the public or otherwise harass the public. The presence of barriers, "no trespassing" or "posted" signs, signs that threaten criminal prosecution, or oral statements by landowners discouraging navigation do not alter whether a waterway is navigable-in-fact. Rather, such posting, obstructions and statements concerning a waterway that is navigable-infact constitute a public nuisance in violation of the common law right of public navigation. Either the State or the public can sue a landowner if a landowner tries to interfere with the public's right to navigate on waterways that are navigable-in-fact.
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ApproachingLight
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So what of this?

Seems like Big Brother encroaching on private property rights. The only hidden blessing for landowners is that in a liability suit they could argue they are defenseless because the state has so liberally defined "navigable" waterways. Seems some court precedent might speak to this topic.

My gut tells me this may not apply to 95% of privately owned waterfalls in NYS.
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hobkyl
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Agreed David, and in this case from the photos posted prior this creek would not fall under the guidelines as navigable. Nor, as you mentioned would many falls across NY. Many of the publicly owned falls would not be considered to be navigable, and in those cases we lucked out. Perhaps this creek is wider in other places, I am only going by the photos shown here. "Navigable" when referenced to traveling a waterway is meant to be done by some type of watercraft, not by foot. What is considered navigable and what is not is very clear.
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Matt
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I met with a lawyer in 2009 about the issue of trespassing and summarized the law here.
Navigable has to be consistent. The emphasis on trade and commerce is the most important. Canadaway Creek is NOT suitable for consistent trade or commerce, thus it can be claimed as private land.
http://www.nyfalls.com/trespassing.html

Also... you would have to be able to remain in a watercraft in Canadaway Creek to be able to claim this right. Just because it is navigable by watercraft, doesn't mean you can creekwalk it.
WNYhiker
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What is the current status of access to the falls from the county land? Is there just one landowner to get permission from or do you have to cross the land of several? Is scott still active on the board?
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Kelly
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Welcome wnyhiker. No need to post 3 times. Someone will answer as soon as they're able, and/or have an answer for you. I don't think we've seen Scott since that last post.
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