People v McCulley

[*1] People v McCulley 2005 NY Slip Op 50439(U) Decided on March 23, 2005 Essex County Ct Halloran, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2005
Essex County Ct

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

JAMES McCULLEY, Appellant.



4528



Pennock, Breedlove & Noll, LLP, for Appellant

Tracy M. LaRocque, Esq., Of Counsel

Robin A. Forshaw, Assistant Solicitor General, for Respondent

Andrew Halloran, J.

BACKGROUND

On April 14, 2004, Defendant filed a Notice of Appeal of a revised and corrected Judgment of the Town Court of the Town of Keene, Essex County, New York, which convicted him after a bench trial, of operating a snowmobile on Forest Preserve Lands in violation of 6 NYCRR §196.2.

The New York Attorney General's Office is representing Respondent in this appeal by agreement with the Essex County District Attorney. The parties stipulated to the transcript of the underlying trial on April 22, 2004. Appellant filed a Brief and Appendix on May 19, 2004. Respondent filed a Brief and Supplemental Appendix on June 18, 2004.

FACTS

(a)Old Military Road/Old Mountain Road

This case arose out of the Defendant's admitted conduct of operating his snowmobile on a historic old road in the Town of Keene. That road has been known in the community by various names, including the "Old Military Road", the "Old Mountain Road", and more recently, the "Jackrabbit Trail" (hereafter the "road"). The witnesses who testified at the trial referred to [*2]the road as the "Old Mountain Road" or the "Jackrabbit Trail." The section of the road involved in this case is located in Lots 35, 36, 37, and 58 of Townships 1 and 2 of the Old Military Tract and Lots 140, 146, 147, and 153 of Township 12 of the Old Military Tract in the Town of Keene.

The prosecution argued at Defendant's trial that the road was a town highway created by use pursuant to Highway Law §189 which was subsequently abandoned pursuant to Highway Law §205. The Defendant argued that the road is a public highway created by state law, rather than by use and that it has not been abandoned.

The road was created by New York State law in the early 1800's. It extended from Northwest Bay at Westport, New York, on Lake Champlain to Hopkinton, New York, in St. Lawrence County. This Court takes judicial notice of acts of the New York State Legislature in the early 1800's which established and authorized the opening, construction, improvement, and repair of the road referred to in those acts as the road from Northwest Bay on Lake Champlain to Hopkinton in the County of St. Lawrence. Specifically, an 1810 Act of the State Legislature (L 1810, Chapter CLXXVII, provides, in pertinent part, as follows: "An Act to establish and improve a road from northwest bay on Lake Champlain to Hopkinton in the county of St. Lawrence. Passed April 5th, 1810.Whereas, a number of the proprietors of lands, in great tracts number one and two of Macomb's purchase have at a considerable expense caused a road to be cut from Hopkinton in the county of St. Lawrence to the east line of the said great tract number one on Macomb's purchase, and thence so far eastwardly through lands belonging to this state as to communicate with the road leading through the town of Keene and other towns in the county of Essex to northwest bay on Lake Champlain. And whereas, The bridge built by the said persons and others upon the said road across the Saranac river in the said town of Keene, hath been carried away by a flood, and the said road thereby, and by the falling in of trees and want of repairs, hath become impassable for horses and carriages. And whereas, The Proprietors of the said lands pay heavy taxes to the towns in which they are situated and the value of the public lands will be enhanced by the establishment and improvement of the said road: Therefore,Be it enacted by the people of the state of new York, represented in Senate and Assembly, that Benjamin [*3]W. Hopkins be and he is hereby appointed a commissioner for the purposes mentioned in this act, and that he shall have full power to inspect and examine the said road and to make such alterations thereof as he shall find expedient, and to make and finish a survey thereof from Hopkinton aforesaid to the east line of the said great tract number one, and thence through the lands of the state adjoining to the said great tract, until the said road shall strike and unite with such road as may have lawfully been laid out leading through or from the said town of Keene to northwest bay aforesaid, and that the said commissioner shall cause a map and survey of the said road to be delivered to the clerks of each town and county through which the same shall run, to be filed in their respective offices, and that immediately thereafter the said road shall be deemed and taken to be a legal and public Highway.And be it further enacted, That it shall be the duty of the said commissioner to keep the said road in repair and to remove any obstructions that may fall into the same, and to that end the said commissioner shall yearly and every year, after the said map and survey shall be filed, report to the commissioners of highways in each of the towns, and to the supervisors of the several counties in which the said road or any part of it is situate the amount that will be necessary to keep the said road in repair during that year, in each of the said towns, which sum shall not exceed seventy-five dollars in any one town in one year; and that the said sum together with the charges of the said commissioner shall be assessed and levied in like manner as the other taxes of the said towns, respectively are raised and levied, and shall by the county treasurer be paid to the said commissioner, and by him be accounted for annually to the board of supervisors in each respective county.And be it further enacted, That the said commissioner shall continue in office for the term of four years from the first of December next, after which time the said road shall be repaired and maintained in the same manner as the other public roads in the several towns in which it shall lie, and the said commissioner shall for every day that he is actually employed in the duties required of him by this act, receive as a compensation the sum of one dollar and fifty cents and no more for his own services and [*4]expenses."

A separate 1810 Act of the State Legislature (L 1810, Chapter CLXX) provided funds to repair a bridge on the road and to otherwise repair the road as follows: "Whereas, The proprietors of the first great tract in Macomb's purchase, have opened a road at a great expense on a direction from Hopkinton, in St. Lawrence county, to the court-house in Essex county, and in performing the same have expended a large sum in building a bridge over the Saranac river, and in opening said road on the state lands, in the old military tract: And whereas, the said bridge was carried away by a flood last spring, and the road wants considerable repairs: And whereas, the said road passes upwards of twenty miles through state's lands which are not taxed for making roads, and the public lands have been greatly enhanced in their value by said road; and the expenses heretofore laid out on said road will be rendered useless unless the said bridge should be re-built and the said road repaired: Therefore,Be it further enacted, That the surveyor-general be and he is hereby directed to sell and dispose of, in the manner the commissioners of the land office may deem most conducive to the interest of this state, such number of the one hundred and sixty acre lots, which are unappropriated in townships number eleven and twelve, in the old military tract, as shall produce the sum of one thousand dollars, and pay the same into the treasury of this state: and the comptroller is hereby directed to draw his warrant on the treasurer in favor of Benjamin Pond and Benjamin W. Hopkins, who are hereby appointed commissioners for the purpose of laying out and expending the said sum of one thousand dollars, to be paid out of any monies in the treasury not otherwise appropriated, on their executing bonds to the people of this state, that they will, within two years thereafter, account for the expenditure of the said sum in building a bridge over the river Saranac on said road, in township number eleven, and in making repairs on the said road in such a way and manner as they shall judge proper: Provided, The said commissioners shall not receive more than one dollar and fifty cents per day each, for their services while actually employed on the said road."[*5]

An 1812 Act of the State Legislature (L 1812, Chapter CXCVI), provided further state and town funding for the road. It provides, in pertinent part, as follows: "An ACT further to improve the road from Hopkinton, in the county of St. Lawrence, to North-West Bay, on Lake Champlain. Passed June 19, 1812.Whereas the appropriations heretofore made for opening and improving the road from Hopkinton to North-West Bay, have been found entirely inadequate to open and improve the same so as to render it passable: And whereas, the said road runs through large tracts of unsettled lands, so that it cannot be made passable by the ordinary means provided by law: And whereas, the said road, when made, will open an important communication between the northern and southern parts of this state: And whereas, it is but just that those who derive immediate benefit from the said road in the improvement of their lands, should bear a reasonable part of the expenses of opening and improving the same: Therefore,

* * * VI. Be it further enacted, That the treasurer, on the warrant of the comptroller, pay unto the said commissioner, together with John Grant, of the town of Keene, or their order, out of any money in the treasury, the sum of three thousand dollars, which sum shall be by them as soon as may be appropriated in opening and improving said road between the west line of the Old Military Tract so called, and the dwelling house of Zadock Hurd, in the town of Keene, in the county of Essex."

This Court takes judicial notice that Zadock Hurd is mentioned in the History of Essex County, H. Perry Smith, 1885, as the keeper of the Town of Keene's first inn, and that the road extended from Northwest Bay on Lake Champlain at Westport, New York, to Hopkinton, St. Lawrence County, New York, via the Town of Keene, Essex County, New York, as shown on the map of the Town of Keene, in the Atlas of Essex County, New York, by O.W. Gray & Sons, dated 1876 and the Adirondack Map compiled by the Conservation Department (now DEC), 1964 edition.

The center line of that road as it crosses portions of the state land involved in this case in Lot 37 is also shown on a map entitled Map Showing Conveyances to State of New York in Lot Nos. 35-36 & 37 located in Township 1 & 2, Old Military Tract, Essex [*6]County, New York, by E.M. Merrill dated August 20, 1931 received in evidence at the trial as Defendant's Exhibit "A". The center line is labeled "center line of road according to Nathan Ward's survey in 1825" which indicates that the road was shown on a survey map as early as 1825. It is clear that the New York State Legislature vested the right to use the road in the public and created the road as a public road.

No evidence was presented that the State of New York compensated the fee title owners or that the fee title was acquired by the legislature at the time the road was created. A public right-of-way easement was, therefore, created in the road by the legislation. The underlying fee title subject to that public easement remained in the fee title owners' of the land at the time the road was created. The public right-of-way easement would revert back to those owners and their successors upon abandonment of the road. (See, Bashaw v. Clark, 267 AD2d 681, 699 NYS2d 533 [3rd Dept. 1999], citing Appleton v. City of New York, 219 NY 150, 114 NE 73 [1916]).

(b) Facts

This Court finds the following facts based upon the evidence presented at the trial.

The evidence established that Defendant intentionally rode his snowmobile on the portion of the road located between the Town of Keene's westerly boundary with the Town of North Elba and "the big beaver ponds." He then turned around and returned. After he returned, he telephoned a New York State Forest Ranger and requested that he be issued a ticket.

Defendant signed a voluntary statement on March 24, 2003 which states: "On Thursday, March 20, 2003, at approximately 5:00 p.m., I drove on to the Old Mountain Road in North Elba to the end of the road to the parking area. There, I unloaded my snowmobile, a 2002 Polaris Classic, and drove my snowmobile on to the trail towards Keene. I went in as far as the big beaver ponds, turned around and came back out. I did see the yellow Forest Preserve signs adjacent to the roadway."

Defendant was charged in a simplified information on March 21, 2003 with operation of a snowmobile on forest preserve land in violation of 6 NYCRR §196.2, followed on March 24, 2003 with a long form information. He represented himself in a bench trial in the Town Court of the Town of Keene, New York, on August 25, 2003, which resulted in the judgment appealed. His defense was that the road was a town road which had not been abandoned by the public and that he, therefore, had the right to use the road. The prosecution presented evidence in an attempt to prove that the road had been abandoned by non-use by the public pursuant to [*7]Highway Law §205.

Forest rangers who responded to Defendant's call went to the Old Military Road and observed and photographed signs posted on a tree near the road which indicate that the land is Forest Preserve land as defined in Environmental Conservation Law §9-0101 (6); that it is classified as wilderness; and that motor vehicles are prohibited.

The trial court heard testimony and accepted deeds and maps in evidence which established that the State of New York had acquired the underlying fee title to the lots over which the public easement in the road passes by deeds from private owners in 1905, 1919, 1931, and 1951. The Adirondack Park Agency classified the state's interest in those lots as wilderness in the State Land Master Plan. The portion of the road involved extends from New York State Route 73 in the Town of North Elba, Essex County, New York, to a parking lot at a business called Rockin' River in the Town of Keene, Essex County, New York. The road section involved in the Town of Keene is approximately four miles long. The portion near the Town of North Elba and Town of Keene boundary line is six to eight feet wide with grass growing along the length of the road and with a worn footpath in the middle.

The testimony and evidence also established that five to ten culverts had been placed on the road and several water bars had been constructed to channel water away from the traveled portion of the road and to prevent erosion.

Testimony established that at five locations along the road, beavers had created dams which had not been removed and which had caused water to back up onto the road. The marshes created by the beavers' activity range from one to ten acres in size. New York State Department of Environmental Conservation (hereafter "DEC") Regional Forester Thomas D. Martin testified that he walked the road on December 14, 2001; that the first marsh he encountered as he traveled towards the Keene end of the road was approximately 30 yards across where it covered the road. A foot trail had been established around the north side of the first beaver marsh. The trail was three to four feet wide. The evidence presented does not indicate whether the diversion foot trail was within the bounds of the Old Military Road or not.

A large tree had fallen across the road at an undescribed location prior to Mr. Martin's visit. Sections of the road, located an undescribed distance past the first marsh, were rocky and narrow, and four or five three-to-four-foot wide bridges were located at undescribed points on the road. Another beaver marsh located further along the road towards the Keene end was 50 to 75 yards long on its long axis in 2001. There is a large parking lot at Rockin' River at the Keene end of the road with a trail register. That parking lot is at the end of Alstead Hill Road in [*8]the Town of Keene which appears by the Essex County highway map to be an extension of the road at issue in this case.

In the late 1970's, the Town of Keene unanimously passed a resolution which stated that "the Town of Keene Board does hereby strongly oppose abandonment and the proposed closing of the Old Mountain Road in the towns of Keene and North Elba, such highway being an old military road having great historical significance during John Brown's time, having been the road John Browns' body was transported from Elizabethtown to a burial site in North Elba." The resolution also stated that "(T)he road is the only link between the towns of Keene and North Elba for snowmobiling, horseback riding and cross-country skiing. Closing it would be detrimental to both towns." (Defendant's Exhibit H).

A letter from former DEC Regional Forester Tom Wahl to the Adirondack Council (an Adirondack environmental organization) dated November, 1996, acknowledged the DEC's position at that time that the road may be a town road.

The road was a DEC designated snowmobile trail until recently. The snowmobile trail designation of the road was discontinued and the road "closed" in the 2001 update of the State Land Master Plan. DEC's position now is that the road is not a town road.

Mr. Martin acknowledged in his testimony that in winter, users of the road could use the frozen surface of the beaver ponds to follow the line of the road across the ponds. Photographs admitted into evidence clearly show the road as it enters and leaves the beaver marshes. The line of the road is also apparent in the photographs as it crosses the marshes.

Approximately 300 people use the road beginning at the Rockin' River in the summer and 150 in the winter. In 1988, Mr. Palen, the owner of Rockin' River, saw a truck use the road as far as the first beaver pond, and a snowmobile might have used the road for a rescue mission. Mr. Palen sees one or two four-wheel ATV's a year drive up the main road. He presumes they continue on the Old Mountain Road.

The Adirondack Ski Touring Council (ASTC) maintains the road from Rockin' River in the Town of Keene, New York, through Lake Placid, New York, to Saranac Lake, New York, for use by the public for cross-country skiing. Mr. Goodwin, the Executive Director of ASTC, has obtained assistance in the maintenance of the road from the Town of Keene which provided four or five employees of the town highway department to clear 25 blown down trees and to cut brush in the fall of 1986. Again in 1987, Town of Keene highway employees worked one day, and part of another day, cutting brush and hauling material to rebuild a bridge on the road. From 1987 to 1991, volunteers from the ASTC continued to improve the road. In 1991 inmates from the New York State Department of Corrections, Moriah Shock Incarceration Facility, [*9]worked on the road for five weeks. They removed rocks, dug ditches, and installed three bridges. That work was funded by the ASTC and by businesses which purchased advertisements on an annual map published by ASTC.

In 1995, when the road had been damaged by a flood, the Town of Keene used a bulldozer to repair a one-quarter mile long section. Inmates from the Moriah Shock Incarceration Facility helped rebuild a bridge that year, and DEC Forest Ranger Gary Hodgson used explosives to remove a boulder in the road in 1996.

In November 1998, volunteer crews averaging a dozen people a day worked for four full days to remove trees which fell on the road during a severe ice storm earlier that year. Since 1998, four or five ASTC volunteers have done routine maintenance work on the road two or three days each year, including removal of blown down trees and cutting of brush and grass. The last time the Town of Keene worked on the road was in October, 1995. Mr. Goodwin testified that he saw ATV's on the road during hunting season a few times after 1991. The ASTC maintains a register at the Rockin' River end of the road. Approximately 400 to 500 people sign the register each year. They use the road for skiing, snowshoeing, or rock climbing.

The ASTC did not seek or have DEC approval to maintain the road when ASTC began maintaining it in 1988. Mr. Goodwin was "under the impression it was still a town of Keene right-of-way." The Town of Keene supplied materials to be used to maintain the road at his request. On two occasions, the DEC dynamited boulders on the road at the request of ASTC. ASTC maintained the road as a town road. Mr. Goodwin has seen snowmobile tracks on the road indicating use by snowmobiles. ASTC signed a natural resource agreement with DEC after Mr. Goodwin reviewed a letter written by DEC Regional Forester Tom Martin which unequivocally informed the supervisors of the towns of North Elba and Keene that the road was no longer a town road, and that DEC was preparing a unit management plan for the area which would deal with the use of the road in the future.

Thomas Both, the Supervisor of the Town of Keene, has not authorized maintenance on the road since he took office. The road was not listed on the 2003 inventory of town roads of the Town of Keene. Alstead Hill Road is listed as a town road from New York State Route 73 to the Rockin' River. The Town Board of the Town of Keene passed a resolution on January 11, 1972 which allowed the use of snowmobiles on 18 roads in the Town of Keene. The road was not included on that list as the "Old Mountain Road" or "Old Military Road."

On January 14, 2003, the Town Board of the Town of Keene voted to rescind the 1972 resolution which designated town roads for snowmobile use because of liability concerns. The Town Court took judicial notice at Defendant's trial of Parks, Recreation, [*10]and Historic Preservation Law §25.05 which authorizes towns to designate unplowed town roads for use by snowmobiles and authorizes operation of snowmobiles on the outside banks of highways other than the thruway, interstate, and controlled access highways.

Bruce B. Reed, the Town of Keene Highway Superintendent, worked on the road in 1980, and cut brush on it in 1986. In 1987, he supplied discarded town culverts to ASTC to be used on the road. On November 3, 1995, Town of Keene employees cut trees and brush on the road. They used a bulldozer to level the road and push trees out of it. They also cut steel for a bridge on the road. Mr. Reed performed this work without seeking approval from the town board or Supervisor because he believed the Town had a "right-of-way" over the road. However, the 1988 version of the Essex County highway map does not show the road as a town road.

(c)Conclusions of Law

The prosecution claimed, but did not offer any proof, that the road was a town highway created by use pursuant to Highway Law §189. However, it is clear that the road was established in the 1810 Acts of the State Legislature (L 1810, Chapters CLXXVII and CLXX) as a "legal and public highway." Id. The legislature directed an appointed commissioner to maintain the road for four years and provided that after that four-year period beginning with "the first of December next," the road "shall be repaired and maintained in the same manner as the other public roads in the several towns in which it shall lie." Id. No evidence was presented at the trial that the requirement that the Town of Keene maintain and repair the road as it passes through the Town of Keene has ever been rescinded or superceded.

The legislature in 1812 found that the road would "open an important communication between the northern and southern parts of the state . . ." and appropriated state funds for the specific purpose of opening and improving the section of the road involved in this case. (L 1812, Chapter CXCVI).

This Court takes judicial notice of the 1885 Act of the State Legislature (L 1885, Ch 283(7), (8), and (9), which established the forest preserve as "the lands now owned or which may hereafter be acquired by the State of New York" within Essex County and other forest preserve counties in the Adirondacks and Catskill mountains. That statute authorized a forest commission to adopt rules and regulations, subject to a very specific prohibition on the adoption of rules or regulations preventing the free use of any roads in the forest preserve as follows: "The forest commission may, from time to time, prescribe rules or regulations and may, from time to time, alter or amend the same, affecting the whole or any part of the forest preserve, and for its use, care [*11]and administration; but neither such rules or regulations, nor anything herein contained shall prevent or operate to prevent the free use of any road, stream or water as the same may have been heretofore used or as may be reasonably required in the prosecution of any lawful business." Id. §9. (emphasis added)

It is clear that the legislature in 1885 was concerned that rules or regulations might be adopted by the forest commission which would prevent the free use of roads and, therefore, specifically prohibited such rules or regulations.

Defendant argued at the trial that the statutory prohibition against rules or regulations which "prevent or operate to prevent the free use of any road . . ." and against any interpretation of the statute (L 1885, Ch 283) which created the forest preserve to prevent such free use of any road must be read into the New York State Constitution, Article XIV (the "forever wild" clause of the New York State Constitution). Article XIV, Section 1, was originally enacted as Article VII, Section 7, in 1894. Defendant specifically argued that when the 1894 session of the New York State Legislature passed Article VII, Section 7, it intended to retain the limitation enacted by the 1885 session of the legislature nine years earlier against interpretations of the forest preserve law or rules and regulations which prevent the "free use of any road." That view is supported by the following statement in People v. Baldwin, 197 AD2d 285, 188 NYS 542 (3rd Dept. 1921): "In 1895 the act of 1885 was repealed but the repealing act (chapter 395) contained identical provisions with those of the act of 1885, and so these statutory provisions have continued until today. People ex rel. Forest Commission v. Campbell, 152 NY 51, 46 N.E. 176. Article 7, §7, of the Constitution became operative January 1, 1895, and . . ."

The legislature in the Laws of 1895, Chapter 395, re-enacted the prohibition against regulations preventing the free use of roads in exactly the same language used in the 1885 statute, thereby re-affirming its legislative intent regarding "free use" of roads in the forest preserve after the "forever wild" clause of the New York State Constitution was approved by the legislature and the voters of the State of New York in 1894.

The first sentence of the "forever wild" clause of the constitution provides that "(T)he lands of the state, now owned or hereafter acquired, constituting the forest preserve as now [*12]fixed by law, shall be forever kept as wild forest lands." Defendant specifically argues that the clause "as now fixed by law" expresses an intent by the legislature, and by the people of the state who voted to approve that constitutional amendment, to retain the statutory prohibition against interpretations of the forest preserve law and against rules and regulations related to the forest preserve which would prevent the free use of roads in the forest preserve. He argues that the citizens who voted on the constitutional amendment in a referendum in 1894 did so with the understanding that the free use of roads in the forest preserve would not be prevented by interpretation of the Act creating the forest preserve or by administrative agency rules or regulations adopted to regulate the forest preserve.

However, it is not necessary to determine whether the "forever wild" clause of the New York Constitution incorporates the legislature's prohibition of rules or regulations preventing the free use of roads in order to decide this case.

In 1936, fifty-one years after the creation of the forest preserve in 1885, the legislature enacted Highway Law §212, which provides as follows: "If a highway passes over or through lands wholly owned and occupied by the state, the location of such portion of such highway as passes through such lands may be altered and changed, or the same may be abandoned or the use thereof as a highway discontinued with the consent and approval of the state authority having jurisdiction or control over such lands by an order directing such change in location, abandonment or discontinuance. Such order shall contain a description of that portion of the highway the location of which has been changed, abandoned or discontinued, and a description of the new location thereof, if any, and shall be filed in the office of the state authority having control of such lands."

Highway Law §212, by its terms, appears to require an order by the New York State Commissioner of the Department of Transportation (hereafter "DOT") in order to abandon or discontinue a highway which passes through lands "wholly owned and occupied by the state." However, the Appellate Division in Kelly v. Jorling, 164 AD2d 181, 563 NYS2d 306, held that the DEC Commissioner had the power to issue such an order. The Court stated: "(I)n our view the statute's expressed intent provides an ample basis and rationale to conclude that 'the state authority having jurisdiction or control over [state] lands' (Highway Law §212) is empowered to issue orders effectuating that authority. Id. at 183.

Highway Law §212 as originally enacted applied only to state [*13]lands occupied by the State for farm or prison purposes. However, it was amended in 1929 to remove that restriction. (See, generally, Altona Citizens Committee, Inc. v. Hennessy, 77 Ad2d 956, 430 NYS2d 898 [3rd Dept. 1980]). The 1929 amendment also eliminated the originally required due process notices to the town and residents affected by the proposed abandonment or discontinuance. (See, Town of Wells v. New York State Department of Transportation, 90 Misc 2d 535, 394 NYS2d 550 [1977]).

No evidence was presented at the trial that the commissioners of either the DEC or the DOT issued an order abandoning or discontinuing the road. No evidence was presented that a description of a portion of the road to be abandoned was filed in the offices of either the DEC or DOT as required by Highway Law §212. Thus, no evidence was presented that either the DEC or the DOT followed the procedure mandated by the New York State legislature in Highway Law §212 to abandon or discontinue the road. This Court does not reach the question of whether Highway Law §212 is constitutional as applied to forest preserve lands based upon the above analysis of the "forever wild" clause of the New York State Constitution.

The DEC placed posters on a tree on the road purporting to prohibit operation of motor vehicles and snowmobiles on the road. DEC also adopted rules and regulations governing operation of motorized vehicles and snowmobiles on forest preserve lands. Specifically, 6 NYCRR §196.1 provides, in pertinent part, as follows: "(a) No person shall operate a motorized vehicle in the forest preserve except as permitted in subdivisions (b) and (c) of this section.(b) Operation of motorized vehicles is permitted on roads:(1) that are under the jurisdiction of the State Department of Transportation or a town or county highway department, in accordance with applicable State and local laws;* * *(3) Specifically marked by the department for motorized vehicle use;

* * * (5) where a legal right-of-way exists for public or private use."

The use of snowmobiles on forest preserve lands is separately regulated by the DEC in 6 NYCRR §196.2, which provides [*14]as follows: "(a) The use of snowmobiles on State lands within the forest preserve is hereby permitted:(1) on trails designated and marked by the Department of Environmental Conservation as a "SNOWMOBILE TRAIL," when the trail traveled is completely covered with snow or ice; and(2) on frozen lakes and ponds, when access to same may be gained by public highways or by trails designated and marked by the Department of Environmental Conservation as a "SNOWMOBILE TRAIL."(b) The use of snowmobiles on State lands within the forest preserve other than as set forth in subdivision (a) of this section is hereby prohibited."

Section 196.2 (a) (2) implies that snowmobiles may be operated on public highways, at least for the purpose of gaining access to frozen lakes and ponds. However, §196.2 does not include an express exception for the use of snowmobiles on state, county, or town highways similar to the exception contained in 6 NYCRR §196.1 for the use of motorized vehicles on those highways. It, therefore, appears that the regulatory scheme was to selectively prohibit the operation of snowmobiles, but not motorized vehicles on state, county or town roads in the forest preserve. If Section 196.2 is interpreted to prohibit snowmobiles on state, county, or town roads, then it appears to this Court that the regulatory scheme lacks statutory authority in light of statutory law, including the following: (1) The 1810 and 1812 Acts which established and funded the construction of the road and directed the towns through which it passed to repair and maintain it;(2) The 1885 Act (L 1885, Ch 282) which created the forest preserve and specifically prohibited regulations which would prevent the free use of roads which the legislature and voters arguably incorporated by reference in the forever wild clause of the New York Constitution (NY Const. Ar XIV §1); and the reaffirmation of that prohibition in 1895 (L 1895, Ch 395); and[*15](3) Highway Law §212 which provides a specific statutory procedure for the abandonment or discontinuance of highways which pass through state lands.

The statutory authority cited for the regulations in 6 NYCRR Part 6 is Environmental Conservation Law §§1-0101, 3-0301, 9-0105, 11-0303, and Executive Law §816. None of those Environmental Conservation Law provisions authorize DEC to adopt regulations closing public roads to motor vehicles or selectively prohibiting snowmobile use on public roads without following the specific procedure described in Highway Law §212. Executive Law §816 authorizes DEC to develop unit management plans for state lands classified in the State Land Master Plan. That section also authorizes the Adirondack Park Agency (APA) to prepare amendments to the State Land Master Plan in consultation with DEC and to submit them to the governor for his approval. It also authorizes the APA and DEC to develop rules and regulations necessary, consistent, or desirable to effectuate Executive Law §816. Executive Law §816(3).

The cited legislative authority does not authorize either the APA or DEC to adopt rules or regulations which are inconsistent with Highway Law §212 which provides the procedure for discontinuance or abandonment of highways passing through lands owned and occupied by the state.

The legislature, in 1810, specifically dedicated the road to the use of the public as a public highway. The state held the road in trust for the use of the public and directed the towns through which it passes, including the Town of Keene, to maintain it. Prior to the state's acquisition of Lots 35, 36, 37 and 58 of Township 1 and 2 of the Old Military Tract and Lots 140, 146, 147 and 153 of Township 12 of the Old Military Tract, the prior owners had only a reversionary interest in the land lying within the road right-of-way. The state, therefore, could acquire no more than that reversionary interest in the road when it acquired title to those Lots of the Old Military Tract. That reversionary interest was subject to the rights of the public in the road.

The Appellate Division recently held in Moncure v. New York State Department of Environmental Conservation, 218 AD2d 262, 639 NYS2d 859 (3rd Dept. 1996) that the "forever wild" clause of the New York Constitution (NY Constitution, Article XIV, §1) did not prohibit the construction of a cellular telephone tower on privately leased property where the state acquired only a former owner's reversionary interest in the leased property. The facts in the instant case are similar. The state acquired only the reversionary interests of the former owners in the above lots subject to the public easement in the portions of those lots lying within the road right-of-way. Those rights could not be [*16]terminated by a mere regulation, but only by the procedure required by Highway Law §212.

c. Alleged Abandonment.

The prosecution's argument that the road was a highway created by use which has been abandoned is rejected. The evidence is clear that it is a highway created by law, i.e., by the New York State legislature, and that the public continues to use it extensively for hiking and cross-country skiing, and less extensively for snowmobile riding, ATV riding, and rock climbing.

Dedication of a road to the public is for the benefit of the public and for such use as the public may make of it, absent a valid statute, rule, or regulation prohibiting such use. A highway is presumed to continue to exist. The state had the burden at the trial of proving abandonment by non-use by the public for six years. It failed to meet that burden. No evidence was submitted that a certificate of abandonment was ever filed by the Town of Keene pursuant to Highway Law §205. The fact that the Old Mountain Road is not shown as a town highway on the current Essex County Highway map and the fact that the town apparently failed to maintain it after 1995 are some evidence of abandonment, but those facts are not alone sufficient. (See, DeCuyper v. Gonzales, 214 AD2d 764, 624 NYS2d 653 [3rd Dept. 1995]). Failure to include the road in the list of town highways is also not alone sufficient. Aldous v. Lake Luzerne, 281 Ad2d 807, 722 NYS2d 293 (3rd Dept. 2001).

The photo exhibits admitted into evidence at the trial show a clearly defined road. The testimony at the trial established extensive recreational use of the road along the line of the old highway except where diversions were necessary because beaver dams had not been removed. It was not established at the trial that those diversions were not within the highway right-of-way.

Recreational use by cross-country skiers, hikers, snowmobile riders, and ATV riders may be sufficient use to avoid a claim of abandonment. (See, Smigel v. Town of Rensselaerville, 283 AD2d 863 [3rd Dept. 2001]). [(T)he recreational uses found by Supreme Court may be sufficient to preclude a finding of abandonment by non-use.] Pedestrian use alone has been held sufficient to preclude a finding of abandonment. See, e.g., Shipston v. City of Niagara Falls, 187 AD 421, 176 NYS 393 (4th Dept. 1919); Mangam v. Village of Sing Sing, 26 AD 464, 50 NYS 647 (2nd Dept. 1898), affirmed 164 NY 560, 58 NE 1089; People v. Soxe, 190 Ad73, 179 NYS 364 (3rd Dept. 1919).

The legislature prescribed the procedure to be followed to alter or abandon a highway in Highway Law §212. The state did not follow that procedure to abandon the road involved in this case. Far from abandoning the road, the public continues to use it extensively, including by creating diversionary trails around beaver ponds. [*17]

Limited portions of the road which may have been blocked across the entire width of the right-of-way are arguably abandoned. However, no proof was presented that Defendant traveled beyond a large beaver flow which blocked a portion of the road. The Defendant's statement that he rode his snowmobile to the large beaver ponds and turned around was not controverted by the prosecution. In addition, 6 NYCRR §196.2 (a) (2) specifically authorizes the use of snowmobiles on state lands within the forest preserve on frozen lakes and ponds when access may be gained by public highway. The prosecution did not prove beyond a reasonable doubt that Defendant violated a valid regulation prohibiting snowmobile use on the Old Mountain Road. The Defendant was charged with a violation of a regulation which is ultra vires if it is interpreted to prevent the use of snowmobiles on public highways. The Respondent argued on appeal that Defendant violated Parks, Recreation and Historic Preservation Law §25.05 because the Town of Keene did not designate the road for snowmobile use.

However, Defendant was not charged with a violation of the Parks, Recreation, and Historic Preservation Law.

To the extent that the issue of the sufficiency of the evidence is unpreserved for appeal, this Court reaches that issue in the interest of justice. (CPL §470.15; See also, People v. Robinson, 36 NY2d 224, 228-229, 367 NYS2d 208, 326 N.E.2d 784, [1975] amended 37 NY2d 784). Viewing all the evidence in the light most favorable to the People, the evidence presented at Defendant's trial was not sufficient to prove Defendant guilty beyond a reasonable doubt.

By reason of the foregoing, it is hereby

ORDERED that the judgment of conviction is hereby reversed on the law, on the facts, and in the interest of justice, and it is hereby

ORDERED that the Informations charging Defendant with violations of 6 NYCRR §196.2 are hereby dismissed.

E N T E R

Dated: March 23, 2005

Elizabethtown, New York

S/ Andrew Halloran

ANDREW HALLORAN

COUNTY COURT JUDGE C:\htformat\f5043950.txt