[2] Although Adirondack League Club vs. Sierra Club established that recreational use can be considered in determining whether a river is a public highway, in Friends of Thayer Lake, LLC v. Brown, the New York Court of Appeals declined to answer whether the capacity for recreational use alone is sufficient to prove that a river is a public highway, and sent the case back to the trial court for consideration of "the Waterway's historical and prospective commercial utility, the Waterway's historical accessibility to the public, the relative ease of passage by canoe, the volume of historical travel, and the volume of prospective commercial and recreational use.

Appellant ALC contends that navigability references only commercial utility and that the focus thus should be on the South Branch's use as a logging river during the first half of this century.

Reliance on recreational uses, ALC asserts, would disrupt settled expectations regarding private property and would expand the common-law rule beyond its traditional foundation.

[1]The Sierra Club Atlantic Chapter was seeking a test case to use common law to open waterways that had been considered private property.

[15] They settled on the South Branch of the Moose River running through the Adirondack League Club, which not only could be canoed and kayaked, but "was heavily used over the course of at least 50 years for floating logs to market.

For the boaters to successfully complete their journey, they were forced by obstacles to make several stops to carry their boats over Adirondack League Club land.

The Adirondack League Club claimed the portion of the South Branch in question was private property and recreation was not part of the navigability-in-fact law already in place from Morgan v. King and should not be considered.

The boaters argued that the South Branch of the Moose River was a public highway, and modern recreational use should be considered, in addition to historical commercial use.

Since questions of fact remain regarding whether the South Branch is navigable-in-fact, plaintiff is entitled to have the competing evidence weighed and the credibility of the witnesses assessed at trial.