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James McCulley Had Himself Arrested


DEC Tried to Stop Use of 195-Year Old Highway Established by Legislature

By Carol W. LaGrasse, March 2005

Early in the evening on March 20, 2003, James McCulley drove his snowmobile on the Old Mountain Road into State Forest Preserve land in North Elba, turned around at the big beaver ponds that flood the road, and returned. He telephoned a New York State Forest Ranger and requested that he be issued a ticket. The road was not an official snowmobile trail sanctioned by the State Department of Environmental Conservation (DEC), which has issued regulations making it illegal to operate snowmobiles on the three-million acre Forest Preserve except on their limited mileage of official trails.

Over the past century, local residents have seethed over the environmental department's closure of numerous old town highways. Mr. McCulley's ride represented a formal affront to the gradual dismantling of the local highway system as the State acquires land. The Old Mountain Road had been a DEC-designated snowmobile route until the 2001 update of the State's Land Master Plan, when the road was supposedly "closed" in the state's view.

At a trial before the local justice in the town of Keene, Mr. McCulley represented himself, arguing that he had the right to use the road because it was a town highway. Claiming that the road was abandoned by non-use, the prosecution was successful at that juncture. Mr. McCulley appealed to the Essex County Supreme Court.

In the Supreme Court face-off between Mr. McCulley's lawyer and the state's Assistant Solicitor General, the tables were turned. In a 27-page decision, Judge Andrew Halloran ruled on March 23, 2005 that Mr. McCulley was not guilty of using his snowmobile illegally on Forest Preserve land. In addition to an analysis of important law pertaining to preservation of highways, Judge Halloran's decision recounted the legislative history of the old road and preserved extensive evidence of its physical history. The decision also created a compelling record of extensive maintenance and use of the road into the present day.

Old Mountain Road is not an ordinary old town highway established by use. In 1810, the State Legislature dedicated the road when it enacted "An Act to establish and improve a road from northwest bay on Lake Champlain to Hopkinton in the county of St. Lawrence." The Legislature found that the road would "open an important communication between the northern and southern parts of the state." The Legislature also appointed a commissioner to maintain the road for four years and provided that after the four-year period 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." Judge Halloran ruled that a public right-of-way had been established by the Legislature.

The court record shows that in the 1970's the Town of Keene strongly opposed any abandonment of the road because it represented the only link between the towns of Keene and North Elba and had great historical significance, having been the road whereby John Browns' body was transported from Elizabethtown to his burial place in North Elba.

The decision also took notice of the 1885 Act of the Legislature 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. The law authorized a commission to made rules and regulations to administer the forest preserve, but made them subject to a specific prohibition:

"… 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."

Abandonment of state roads through state-owned lands requires the order of either the commissioner of environmental or transportation departments, using procedure mandated by the highway law. However, this was never done. In addition, the judge explained that he did not reach a conclusion about whether such an abandonment would be constitutional under the "forever wild" clause. The judge ruled, "None of the 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 Section 212."

The judge ruled that the prior owners of the land that the state acquired over the years "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."

Dismissing the claim of abandonment, Judge Halloran wrote:

"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."

Judge Halloran reversed the conviction James McCulley and dismissed the charges.

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