Friends of Thayer Lake LLC v. Brown

In our view, the Mud Pond Waterway (hereinafter the Waterway) does not meet the navigable-in-fact test under common law and, therefore, we respectfully dissent. The Waterway is defined by the parties to include the Narrows *32of Lilypad Pond, Mud Pond, the Mud Pond Outlet Rapids, the Mud Pond Outlet Brook and the Shingle Shanty Brook from the junction of the Mud Pond Outlet Brook until it reaches publicly-owned land. Mud Pond itself is shallow and narrow, and the rapids at the outlet are approximately 500 feet in length. Given the rocky terrain and shallowness of the water, the rapids are…