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#41488 - 11/12/08 05:37 PM Climbing access
ShakesALot Offline
enthusiast

Registered: 04/19/04
Posts: 257
Loc: NJ

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#41499 - 11/12/08 07:02 PM Re: Climbing access [Re: ShakesALot]
empicard Offline
Carpal Tunnel

Registered: 08/29/01
Posts: 2954
Loc: LI, NY
what the hell is your point?
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tOOthless

Time flies like an arrow. Fruit flies like a banana.

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#41509 - 11/12/08 08:22 PM Re: Climbing access [Re: empicard]
Dillbag Offline
old hand

Registered: 05/02/06
Posts: 1130
Loc: "The Town"
I'm guessing he's trying to get someone from the GCC to respond...

Remember, you were asking for the same thing... Silly mapguy, i mean sodaguy...
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#41538 - 11/13/08 12:51 AM Re: Climbing access [Re: Dillbag]
phlan Offline

Carpal Tunnel

Registered: 02/11/00
Posts: 2778
Loc: Gardiner, NY
the concerns were addressed years ago, in private discussions, between you and Mr. Rosenstein of the Access Fund.

we are respectful of private property owners rights. It is a disgrace what happened to Eddie.

communications over the Internet are too easily misconstrued and distorted. that is why we support real, live meetings which can be effective in real terms.

a meeting with the property owners group would be, by all means, welcomed.

Thank You.
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#41539 - 11/13/08 01:10 AM Re: Climbing access [Re: phlan]
Smike Offline
Carpal Tunnel

Registered: 05/01/01
Posts: 3143
Loc: in your backyard

 Originally Posted By: kent
Lemme know when you'd like a face to face meeting with those landowners.


 Originally Posted By: phlan
a meeting with the property owners group would be, by all means, welcomed.


Sounds like a mutual agreement then?

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#41541 - 11/13/08 01:50 AM Re: Climbing access [Re: Smike]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
Chris, landowner concerns were hardly addressed. And as I mentioned before, you got up and walked out. I might add, you neither retracted nor apologized for your words about coercion to motivate landowners to sell, or your threat to sue. Both of those things you said very publicly here. If they are not your current sentiment then you should retract them and apologize for them just as publicly.

And it's only now, years later, when closures are happening, that you will actually meet. I'll set up a meeting but at this point it won't influence closures one way or the other.

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#41543 - 11/13/08 02:52 AM Re: Climbing access [Re: Kent]
empicard Offline
Carpal Tunnel

Registered: 08/29/01
Posts: 2954
Loc: LI, NY
(my only question was why link to another thread, Shakes and I discussed that in a PM)

ANYWAY, Kent, are you planning on closing whatever it is you own to climbing?
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tOOthless

Time flies like an arrow. Fruit flies like a banana.

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#41544 - 11/13/08 03:08 AM Re: Climbing access [Re: empicard]
phlan Offline

Carpal Tunnel

Registered: 02/11/00
Posts: 2778
Loc: Gardiner, NY
I guess if this is not going to influence climbing access one way or another then we don't have to have a meeting.

Thank You.
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Support Your Local Farmer!

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#41545 - 11/13/08 03:12 AM Re: Climbing access [Re: empicard]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
 Quote:
ANYWAY, Kent, are you planning on closing whatever it is you own to climbing?


Emp, there is little climbing on my two pieces in the Bayards but both pieces are already closed. As well, about 1500' of the Millbrook Ridge Trail has been rerouted, by the Preserve and at the request of landowners, off private land.

Beyond that, I can't comment right now.



Edited by Kent (11/13/08 03:15 AM)

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#41546 - 11/13/08 03:19 AM Re: Climbing access [Re: phlan]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
 Originally Posted By: phlan
I guess if this is not going to influence climbing access one way or another then we don't have to have a meeting.


Chris, you really should go and read the Access Fund website...the section called Climbing on Private Land: Ask First

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#41552 - 11/13/08 05:22 AM Re: Climbing access [Re: Kent]
rg@ofmc Online   content
Pooh-Bah

Registered: 12/25/99
Posts: 2467
Loc: Poughkeepsie, NY
 Originally Posted By: "phlan"
communications over the Internet are too easily misconstrued and distorted. that is why we support real, live meetings which can be effective in real terms.


Well real meetings are good. But Kent, isn't it disingenuous to speak of setting up meetings if one of the parties is not amenable to discussion at this point?

As for discusions on the Internet, they are far less capable of being distorted and misconstrued than many meetings, because the text of everyone's comments is there, and claims can be evaluated in the light of what people actually said. When you have a far-flung constituency that will never be able to show up at meetings with any regularity or in any numbers, the Internet offers perhaps the only way to have a genuine conversation.

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#41555 - 11/13/08 11:39 AM Re: Climbing access [Re: rg@ofmc]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
RG, I'll be happy to discuss but the best time for meetings with landowners was long ago.

And I couldn't agree more with your comments regarding the merits of internet discussions.

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#41584 - 11/13/08 04:15 PM Re: Climbing access [Re: Kent]
chip Offline
Carpal Tunnel

Registered: 10/06/01
Posts: 2675
Loc: Sittin' Pretty in Fat City
Kent, as you may assertain from my posts, I am squarely on the side of a private land holder determining what activities are allowed. There are examples of historical activities being grand-fathered when land changes hand, but that is far from the rule. Since NYS passage of law to disallow torts when injured or killed due to recreational activity on private land, as long as the owner did not modify the property to enable that activity, I had anticipated an overall improved atmosphere between land owners and recreationists. Thus far I don't know if that has been the case. Now, you may simply not anyone on your property and that is your call. I am just curious if you can tell me why you no longer allow access on your land.

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#41597 - 11/13/08 05:46 PM Re: Climbing access [Re: rg@ofmc]
Smike Offline
Carpal Tunnel

Registered: 05/01/01
Posts: 3143
Loc: in your backyard
 Originally Posted By: rg@ofmc



As for discusions on the Internet, they are far less capable of being distorted and misconstrued than many meetings


I will disagree with that. If the recent wave of threads and post doesn't outline that, I'm not sure what will. I have seen very little in the way of anything constructive or useful from any side on any of the issues being brought up here.

The only resounding theme seems to be is entrenchment.

When I have issues come up with my clients I will chose a face to face meeting over e-mail exchanges any time.

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#41601 - 11/13/08 05:53 PM Re: Climbing access [Re: chip]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
Chip, as with Julie, thank you also for your question. I'll be back.

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#41673 - 11/14/08 04:29 PM Re: Climbing access [Re: chip]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
Chip, thank you for respecting ridge landowner property rights.

In answer to your question, simply put, because the community has a pervasive and well entrenched sense of entitlement to private land.

This manifests in the form of The Preserve collaborating with other large organizations to influence the political processes of comprehensive planning and zoning to their benefit and with the consequence of great harm to their neighbors on the ridge.

Climbers have been involved every step of the way. Prominent climbers serve on the boards of the Mohonk Preserve, the so called Friends of The Shawangunks (FOS), their mirrored corporation the Shawangunk Conservancy, and of course the Gunks Climbers Coalition. All of these climbers have participated in the development of, or outspokenly supported, a zoning law that brings great harm to a handful of ridge landowners. When the unfairness of that has been illuminated, the best the climbers can offer up is "we don't care".

In turn, climbers, including very prominent and well known climbers, have routinely climbed on private land without permission. Whether its a Mohonk preserve employee climbing on Eddie's property in Rosendale without permission, or climbers repeatedly trespassing at the AI Wall to the point where they get arrested, or pretty much the entire climbing community traversing and/or climbing on private land in The Near Trapps without permisssion.

The craziest example that comes to mind is the two very well known climbers who serve on the board of FOS who engaged in a lawsuit to void one ridge landowners hard earned variances while simultaneously developing new routes on another ridge landowners property whose permisssion they never sought.

Pretty much everyone in the community expresses, in some way, a sense of entitlement to private land on the ridge.

Landowners, including myself, are tired of being the cookie jar.



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#41682 - 11/14/08 05:58 PM Re: Climbing access [Re: Kent]
Smike Offline
Carpal Tunnel

Registered: 05/01/01
Posts: 3143
Loc: in your backyard
 Originally Posted By: Kent
Whether its a Mohonk preserve employee climbing on Eddie's property in Rosendale


Kent, we all due respect, I find disapproval in the continual use of unsubstantiated information that involves legal matters that you have no direct involvement with, just as I find complete disapproval of entitlement of the use of private lands or the application of zoning laws without fair and due process.

I have withheld posting information on many occasions on a variety of issues on this board due to the fact that I have no business to be involved with such information for its use other then in some cases a legal standard to let parties directly involved (police , landowners etc…) know of such information.

Now, the Ice season will be here in short order and will be gift I intend to fully enjoy.

Until then I’m done with posting this public board (if anyone wish’s to reach me you may do so by sending me a PM) and will spend the time looking at the issues at hand in the real world, while respecting any current or future property closure’s (which I would suggest others should respect as well)

Best Regards,
Mike

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#41683 - 11/14/08 06:14 PM Re: Climbing access [Re: Smike]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
Mike,

I'm shining a bright light on that which some want to keep hidden. Trespassing is not cool.

And if you'll recall, I've produced hard evidence, documents, in the past to back up my claims here. I named a climber the other day in regards to trespass without having documents in hand. Documents are on the way however. If I am wrong I will certainly recant my remarks.

See you on the ice somewhere.

K


Edited by Kent (11/14/08 06:22 PM)

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#41723 - 11/14/08 09:08 PM Re: Climbing access [Re: Kent]
chip Offline
Carpal Tunnel

Registered: 10/06/01
Posts: 2675
Loc: Sittin' Pretty in Fat City
Just caught this thread. Kent, thanks for a more well formed response.

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#41824 - 11/19/08 12:48 AM Re: Climbing access [Re: Kent]
tls Offline
journeyman

Registered: 07/24/00
Posts: 54
 Quote:
or pretty much the entire climbing community traversing and/or climbing on private land in The Near Trapps without permisssion.


Leaving climbing aside, a landowner can't close a preexisting trail just because he wants to -- because you can't magically cause a right of way to disappear.

This is often overlooked in disputes like the (thankfully now old!) one with the Awosting Reserve; yet there, for example, it seems pretty clear that the right of way predated their title to the property in question, and no amount of erasing trail blazes with grey paint nor putting up signs could eliminate it: you buy a property with a road or trail crossing it that's previously been open to the public, it's your lookout. The sort of thing one needs to actually research before buying land -- not the sort of thing to bellow at the -- in many cases -- actually perfectly well entitled trail users about later.

It would be good if we could -- as I asked in another thread just now -- tone down the rhetoric and hostility and actually keep complaints about illegal (or unethical, or unfriendly) behavior within the bounds of what's actually wrong, rather than trying to expand out the definiton of wrong behavior all out of correspondence with the state of affairs in the real world.

Climbing on private property without permission is wrong. If we could leave it at that, and stop trying to find any other paintbrush available to try to tar anyone who some of us suspect might be climbing on private property without asking first, maybe it would be a little easier to get consensus, never mind compliance or good manners.

The question of whether public use of various trails in and around the Near Trapps, trails that have been used for at least decades, in many cases with prior landowners' consent, by people who did not specifically request permission to use them is actually trespassing is a very complex one. Ranting about it does nothing but obscure the much more clear-cut issue of climbing other people's cliffs without asking; which is unfortunate, because it means it just spreads heat when what is wanted is light.

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#41827 - 11/19/08 03:11 AM Re: Climbing access [Re: tls]
pedestrian Offline
Pooh-Bah

Registered: 08/05/02
Posts: 2244
Loc: a heavily fortified bunker!
actually, tls, a preemptive right of way does not exist until a court finds it to exist, and the courts are typically (and particularly so in new york state) reluctant to void a landowner's rights in this fashion. this has been discussed ad nauseum in the past. it's far from a slam dunk.

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#41828 - 11/19/08 03:31 AM Re: Climbing access [Re: tls]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
 Quote:
Leaving climbing aside, a landowner can't close a preexisting trail just because he wants to -- because you can't magically cause a right of way to disappear.

The above refers to prescriptive easement which can only be granted by a court. Absent such court ordered prescriptive easement a landowner can indeed close a pre-existing trail just because he/she wants to. If you disagree, please provide New York case law precedent for my edification.

It would be interesting to see if a court would grant a prescriptive easement to make it more convenient for climbers or other recreationists to get to the far end of the Nears when a piece in the middle closes. After all, climbers or hikers will still have access to the far end of the Nears by walking out the Millbrook Ridge Trail and descending between The Nears and The Bayards. A prescriptive easement would merely make such access more convenient.

Also, who would the plaintiffs be? As far as I know the Mohonk Preserve has no interest in suing for prescriptive easements and now it seems clear that neither does the GCC. As well, the Access Fund recognizes that claims of prescriptive easement for climbers will have a deleterious effect on access for climbers elsewhere as a landowners best defense against future claims of prescriptive easement is closing one's land.

Edited to add: tls, if you have New York case law of a prescriptive easement providing easier access, rather than just access, to get where one is going, I'd very much like to read that too. Thanks.



Edited by Kent (11/19/08 03:38 AM)

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#41829 - 11/19/08 03:49 AM Re: Climbing access [Re: Kent]
pedestrian Offline
Pooh-Bah

Registered: 08/05/02
Posts: 2244
Loc: a heavily fortified bunker!
A lot varies by jurisdiction. Prescriptive easements, generally, are only granted for transit as far as I know. There may be an easement by necessity for certain purposes but I can't imagine such purposes would include climbing on the privately owned portion in the middle.

IANAL.
~N

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#41838 - 11/19/08 07:03 PM Re: Climbing access [Re: pedestrian]
pda Offline
addict

Registered: 08/30/01
Posts: 621
Loc: Bergen County NJ
"Notwithstanding the general rule that easements are usually in writing, it should be pointed out that some are not. ''There are easements that are called easements by prescription,'' said J. J. Broderick, a New Brunswick, N.J., real estate lawyer. Mr. Broderick explained that such easements were acquired by the use of a piece of property over an extended period of time.

For example, Mr. Broderick said, if Mr. Smith builds a carport that extends 10 feet onto Ms. Jones's property and then uses the carport openly, continuously and without permission for a long time, then it is a good bet that Mr. Smith's car can stay where it is even after Ms. Jones decides it is no longer welcome.

In fact, the car can probably stay put even after Ms. Jones sells her property because Mr. Smith would likely acquire a prescriptive easement to the portion of his neighbor's land on which his car sits.

But what's a long time?

''The time period depends on the jurisdiction,'' Mr. Broderick said, adding that in New Jersey, 20 years might be long enough.

In New York, the period is 10 years; in Connecticut, it's 15.

Rights of way, like prescriptive easements, can often appear out of nowhere.

For example, Mr. Broderick said, if Mr. Smith has to drive over a portion of Ms. Jones's property to get to his car, and he does so openly and notoriously for a long time (again, depending on where the property is situated), then Mr. Smith would eventually acquire a right of way over Ms. Jones' property.

And once a right of way has been established, Mr. Broderick said, Ms. Jones can no longer do anything to prohibit Mr. Smith from using her lawn as a driveway. ''If you interfere with an easement or a right of way,'' Mr. Broderick said, ''that could be a problem because the person using it could have a cause of action against you.''

http://query.nytimes.com/gst/fullpage.html?res=9905E1DC163EF930A15751C0A961958260

Maybe the plaintiffs would be the property owners suing others for alleged trespass.

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#41842 - 11/19/08 07:31 PM Re: Climbing access [Re: pda]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
A claim of right-of-way to get from one portion of a private property to another portion of the same private property, by the most convenient route, will be a difficult case to make. And again, if such claim is made, regardless of whether or not it is successful, then property owners everywhere along the ridge, and elsewhere, will have strong motivation to close their properties as a defense against the possibility of such claims being made against them in the future.

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#41848 - 11/19/08 09:42 PM Re: Climbing access [Re: Kent]
pda Offline
addict

Registered: 08/30/01
Posts: 621
Loc: Bergen County NJ
I agree. Interesting topic nonetheless.

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#41859 - 11/20/08 07:12 AM Re: Climbing access [Re: pda]
rg@ofmc Online   content
Pooh-Bah

Registered: 12/25/99
Posts: 2467
Loc: Poughkeepsie, NY
 Originally Posted By: Kent
It would be interesting to see if a court would grant a prescriptive easement to make it more convenient for climbers or other recreationists to get to the far end of the Nears when a piece in the middle closes. After all, climbers or hikers will still have access to the far end of the Nears by walking out the Millbrook Ridge Trail and descending between The Nears and The Bayards. A prescriptive easement would merely make such access more convenient...A claim of right-of-way to get from one portion of a private property to another portion of the same private property, by the most convenient route, will be a difficult case to make.


 Originally Posted By: pda
Prescriptive easements, generally, are only granted for transit as far as I know.


According to my reading, the language of prescriptive easment in New York state refers to "use" of land, not to whether that use is necessary or convenient, and it does not restrict the definition of use to transit, even if the majority of court cases involve that issue. There is another type of easement, Easement by Necessity, that would presumably fail in the case of getting from one part of the Nears to the other. But the conditions for prescriptive easement are that the owner of the land is legally able but fails to bring an action against the users for the ten-year statute of limitations, that the use must be known to the landowner and continuous during the ten year period, and must be without permission from the owner of the land.

 Originally Posted By: Kent
And again, if such claim is made, regardless of whether or not it is successful, then property owners everywhere along the ridge, and elsewhere, will have strong motivation to close their properties as a defense against the possibility of such claims being made against them in the future.


But if, god forbid, it ever came to actual legal actions, then closing land to prevent future action would have to be balanced against the possibility of having to defend against suits provoked by the closing, so the decision doesn't seem to me to be entirely clear-cut. Moreover, it doesn't seem to me that closing the property is enough to prevent prescriptive easment claims, in fact is to some extent a precondition for such claims, which require that the use be "hostile." The landowners might have to make an ongoing effort to bring actions against trespassers. And oddly enough, it seems that a sure-fire way to prevent such claims in the future would be to grant access permission, in which case a prescriptive easment cannot be claimed, and then landowners could deny access in the future without any exposure to the prescriptive easement argument.

Another way, going forward, to prevent future prescriptive claims would be to interfere with the "continuous use" condition that must be in effect for a ten year-period. It seems to me that even a single documented one-day closing, say every year, would be more than enough to prevent "continuous" use.

So if I owned land climbers have been using for fifty years, I think I'd go down to my local town hall and try to file something, if this is possible, indicating I have granted permission for climbing on my land except for absolute closures on Christmas, Yom Kippur, and the last day of Ramadan, and then by god I have a Muslim Patrol on Christmas, a Christian Patrol on Yom Kippur, and a Jewish Patrol on Ramadan to make damn sure no one was on my land on those sacred days. End of presecriptive easement claims as far as I can tell, and who knows, maybe world peace as a side benefit.

I'm just a lowly mathematician way, way, way, out of my depth here. I just went off and read a bunch o' legalese and then mouthed off about it. It's probably a genetic defect, I come from a family of lawyers. If McCarthy ever sees this, he's gonna toast my ass so bad I'll be standing for a year. He already thinks I've exceeded my pay grade on the history of Gunks climbing.

But hypotheticals notwithstanding (bread and butter for those of us in the theory business), one can only pray that some kind of meeting of the minds can prevent an escalation that ever even approaches these scenarios.

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#41862 - 11/20/08 02:31 PM Re: Climbing access [Re: rg@ofmc]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
Another nice post Rich.

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