We agree that navigability should be determined by reference to the established benchmark of commercial utility, and that, due to the decrease in actual commercial use of waterways in recent years, recreational use must also be considered insofar as it provides evidence that a river would, in fact, be capable of commercial use. We also concur in the majority’s holding with respect to plaintiff’s collateral estoppel argument. Nevertheless, we are of the opinion that summary judgment on the issue of navigability is inappropriate at this time, due to the conflicting testimony with regard to both commercial and recreational uses to which the South Branch of the Moose River is suited.
To support its claim of nonnavigability, plaintiff has proffered sworn testimony from an expert historian who, on the basis of a review of pertinent literature, opines that log driving on the South Branch of the Moose River would not have been possible without the use of dams to augment the natural flow of the river (see, Morgan v King, 35 NY 454, 459 [waterway is navigable if capable of carrying products to market in its natural state and ordinary volume of water]; De Camp v Thomson, 16 App Div 528, affd sub nom. De Camp *234v Dix, 159 NY 436). Defendants counter that most of the dams were located on tributaries and were used to get the logs to the South Branch of the Moose River; it is undisputed, however, that three of the damsites were on the river itself and appear to have been utilized to regulate its flow. Plaintiffs expert also claims that, in 1903, a New York report noted that "large volumes of impounded waters were 'required’ for Moose River log driving”. Although defendants rely heavily on a contract entered into between plaintiff and Gould Paper Company, which prohibited the construction of new dams, that contract, importantly, did not prevent the use of dams which were already in place. Admittedly, there is no conclusive evidence in the record demonstrating that the river was incapable of floating logs without employing dams. It is also true, however, that defendants have produced no hard evidence establishing that the river could indeed be used in this manner without artificial enhancement. In sum, it cannot be said that defendants’ submissions warrant a declaration of navigability, as a matter of law, on the basis of actual commercial use.
Given the bedrock fact that there is no convincing evidence that the river has actually been used, in its natural state, for any commercial purpose, its suitability for recreational use becomes more significant. But, in this area, too, there is a sharp factual dispute. The record contains the affidavits of several experts who, having engaged in detailed scientific studies of the volume and flow of the river, express conflicting opinions as to its ability to support recreational use, particularly canoeing. Both sides have offered testimony, to the same effect, by expert canoeists as well. And, while the individual defendants did travel the river in canoes and a kayak on one occasion, plaintiffs geologist, who also spent time on the river taking measurements, attests that, on the basis of the low depth, low discharge, high gradient, and high width to depth ratios found along much of the river’s length, it would not be useable for canoeing during most of the year.
Plaintiff has also furnished an affidavit from a whitewater rafting professional, who, after attempting to travel the river by canoe, recounted several long portages, necessitated by low water levels, waterfalls and rapids* and opined that due to the low water levels during the summer months, coupled with unpredictability of the flow, the river would not be suitable for any sort of commercial rafting or canoeing operation, and that it is "not navigable for recreational purposes”. This expert *235observed that for four to five miles the river was wide and shallow with a steep gradient, making passage “difficult, if not impossible”. Yet another person who attempted to canoe the river avers that his group had to carry their canoes, either wading or portaging, for approximately 75% to 80% of the distance. These accounts, along with the expert testimony as to flow rates and riverbed characteristics, in our view, cast sufficient doubt on defendants’ assertions that the river is suitable for recreational use to require denial of summary judgment on the question of navigability.
Mercure and Peters, JJ., concur with Casey, J.; Yesawich Jr., J., and Cardona, P. J., concur in part and dissent in part in a separate opinion by Yesawich Jr., J.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motions for summary judgment by defendants Sierra Club, Sierra Club (Atlantic Chapter) and Adirondack Mountain Club, Inc. on their causes of action seeking declaratory relief; motions granted to that extent and it is declared that the South Branch of the Moose River, as it passes through plaintiff’s property, is a navigable river subject to the public’s right of navigation; and, as so modified, affirmed.