Professional Documents
Culture Documents
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At a very early period, even during our colonial The conclusion to which I have come is, that the
condition, the citizens of different parts of the country clause in the ordinances contains a limitation on the
were greatly harassed by the interfering regulations of power of the general government, as well as a
the local governments. prohibition to the states. Or if it is not divisible into
A difficult controversy once existed on this subject, two distinct parts, that then it contains throughout a
between Connecticut and Massachusetts. prohibition to the states;
The former state commanded the mouth of the that this prohibition restrains these states from
Connecticut river, and imposed duties on boats from passing laws which should have the effect of
Massachusetts. regulating its commerce with other states, or from
And Massachusetts, in retaliation, laid an impost on all imposing discriminating duties on the citizens of
commodities exported to or from Connecticut. other states, but does not prevent them from
legislating concerning rivers which run exclusively
within their own limits…
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Cox was indicted for obstructing the west branch of By the latter clause of the said 4th article of said
White river. The indictment contains two counts. The ordinance of congress of the 13th of July, 1787, it is
first count charges that Cox, with force and arms, did ordained, …
erect and keep up a certain mill-dam,… …that the navigable waters of the territory north-west of
The second count charges that the said Cox, with force the river Ohio, leading into the Mississippi and St.
and arms, did erect and keep up a certain other mill- Lawrence, shall be common highways, and be forever
dam, of the height of three feet, across the main channel free, as well to the inhabitants of said territory as to the
of the stream, citizens of the United States, and those of other states
and that said mill-dam is calculated to destroy, injure, that may be admitted into the confederacy,
and obstruct the navigation, said river being a public
highway…
The acts of congress of the 18th of May, 1817, 3d of The act of congress of the 19th of April, 1816, is the act
March, 1803, and 26th of March, 1804, establish that enabling the people of the Indiana Territory to form a
… the navigable rivers and streams, through the domain constitution and state government, and the proviso to
of the United States, shall be and remain public the 4th section declares, that the articles of the
highways; … ordinance of the 13th of July, 1787, are irrevocable,
…and that streams not navigable, having the opposite …and that the constitution and state government of the
banks owned by different persons, shall have their beds territory, when formed, should not be repugnant to
and waters common to both. those articles; …
…and the ordinance of Indiana of the 29th of June,
1816, accepts the propositions and conditions of that
act of congress.
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The next point presented for the consideration of the At common law there are two classes of navigable
Court is, that Cox being the owner of the banks of the streams,--
river, is by the common law, the owner of the river, and 1. navigable streams in which the tide ebbs and flows; on
has a right to occupy and use it, in any way or manner these, the rights of the bank owners extend only to high-
he pleases, for his own benefit. water mark. The bank below high-water mark, and the
As to the treatise of Sir Matthew Hale De Jure Maris, we whole bed of the stream, belong exclusively to the public.
can only say, that in that treatise the learning concerning 2. navigable streams where the tide does not ebb and
public property in the sea and rivers is exhausted, and flow; on these, the bank proprietors have right and title to
that all the common law on the subject is collected, but the centre of the stream, as they have in the soil on which
we cannot perceive that it sustains the plaintiff in error a public highway on land runs, but the public have a right
in this case. of way in the stream, as they have in a public highway on
land, and the bank proprietors cannot interfere with that
right of way, nor can they obstruct the stream,
The principles of the common law have been recognized 1. That as neither the territorial or state legislature had
in eight or ten of the states, but in several others the ever declared Eel river navigable, the plaintiff was not
principles of the civil law, to a very considerable extent, entitled to recover.
have been adopted. This charge was properly refused by the Court. The
In this state, neither the principles of the common or civil navigableness of Eel river was one of the facts put in
law have as yet received any judicial sanction. The case issue by the pleadings, and its existence was correctly
now before us does not require us to pursue those left to the jury upon the evidence before them.
easements and aquatic rights any further Nature is competent, we should imagine, to make a
navigable river without the help of the legislature.
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On the trial, the plaintiff asked the Court to instruct the The state of Virginia, being the proprietor of the lands on
jury--That where lands are bounded by the Ohio river on both sides of the river, ceded to the United States her
the Indiana side, the owner's right extends to low-water right to the territory "situate, lying, and being, to the
mark. This instruction was refused. The record shows north-west of the river Ohio." It is decided that, under
that the instruction was applicable to the evidence in the this grant, the ordinary low-water mark of the river, is
cause. the boundary of the territory granted. Handly's Lessee v.
We think that the instruction ought to have been given. Anthony, 18 U.S. 374, 5 Wheat. 374, 5 L. Ed. 113.
The proprietors of land situated in this state, and And we are of opinion that when the United States, or any
bounded on one side by the Ohio river, must be of her grantees, convey any of this land situate on the
considered as owning the soil to the ordinary low-water river, in Indiana, without a special contract to the
mark. contrary, the same mark must be considered as the
boundary of the grant.
Virginia only granted the territory on the northern Located on the banks of the Ohio River in Clarksville,
bank of the river to low-water mark, although, by the Indiana at I-65, exit 0, is the Falls of the Ohio State
compact of 1792, between Virginia and Kentucky, a Park. The 390-million-year-old fossil beds are among
concurrent jurisdiction over the river is accorded to the largest, naturally exposed, Devonian fossil beds in
Ohio and Kentucky. the world. …
The Ohio is a navigable river; it would be so The "Falls" was originally a series of rapids allowing
considered, even if it were not expressly declared to
the Ohio River to drop 26 feet over a distance of two
be such by the deed of cession.
and a half miles. This was the only navigational hazard
over the 981 mile-length river formed by rock
outcrops. Today much of the original falls have been
flooded behind the McAlpine dam.
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The plaintiffs had and have a right to navigate the St. Every public road is equally a public highway, and, in this
Joseph river with any craft which the character of the respect, no distinction can be drawn between the right to
river did or does admit, without regard to the bridge pass up and down and across the river in the one
mentioned in the declaration… instance, or along or across the road in the other.
…if that bridge impeded the navigation, or if the general In declaring the navigable streams of the north-western
and public advantages arising from its erection did not territory public highways, and providing that, as such
greatly exceed any slight inconvenience arising highways, they should forever remain free to all the
therefrom… inhabitants of the United States, without payment of
The erection of the bridge, if it impeded or endangered taxes or imposts, it could not have been the intention of
the navigation, is a public nuisance, unless the general the framers of the ordinance to prohibit the making of
and public advantages arising therefrom exceed its such improvements as might be demanded by the public
inconvenience in the manner above stated interest,
1. All the bays and inlets on our coast, where the tide 2. All the rivers, creeks, and other water courses, not
from the sea ebbs and flows, … embraced in the above description, …
…and all other waters, whether sounds, rivers or creeks, …but which are, in fact, sufficiently wide and deep to
which can be navigated by sea vessels, are called be navigable by boats, flats and rafts, are technically
navigable, in a technical sense, are altogether publici styled unnavigable, …
juris, and the soil under them, cannot be entered, and a …and are open to be appropriated by individuals, by
grant taken for it, under the entry law. grants from the State, under the entry laws.
Where the tide ebbs and flows the shore, between the
high and low water, is also within the prohibition of
private appropriation,
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3. All the rivulets, brooks and other streams, which, It is sometimes difficult to determine what is the
from any cause, cannot be used for intermunication precise character of a stream. Rivers were once
by inland navigation, are entirely the subjects of divided into navigable and not navigable.
private ownership, are generally included in the They are now generally divided into three classes, the
grants of the soil, and the owners may make what two former, and a third partaking of the character of
use of them they think proper, whether it be for each of the others, and yet distinguishable from both.
fishing, milling or other lawful trade or business. The act of 1817, however, must be considered as
affording unequivocal evidence of what was the
intention of the legislature with regard to this stream.
Fresh rivers, of what kind soever, do of common At the Common Law, then, we see that some rivers
right, belong to the owners of the soil adjacent, so were public, some private; and of those considered
that the owners of one side, have of common right private, that some were subject to the servitude of
the propriety of the soil, and consequently the the public interest, and in that sense common
right of fishing usque ad filum aquae; and the
highways by water.
owners of the other side, the right of soil or
ownership and fishing unto the filum aquae, on The mark of distinction between those which are
their side; entirely private property, and those which are
and if a man be owner of the land on both sides, in subject to the public use and enjoyment, consists
common presumption, he is owner of the whole in the fact, whether or not they can be used as a
river, and hath the right of fishing, according to the common passage for the public.
extent of his land
(quoting: Lord Hale's Tract De Jure Maris)
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…filed against Neaderhouser, the appellant, charging him The complaint alleges that the Wabash river, which
with keeping and maintaining a public nuisance, at said passes through the county of Adams, has always been a
county, by keeping and maintaining a mill-dam across navigable stream in and through said county, for canoes,
the Wabash river therein. pirogues, rafts and small water-craft, and that prior to
The court charged the jury, if they found from the the keeping and maintaining a mill-dam across said
evidence that the Wabash is of that class of streams stream, by the defendant, Neaderhouser, the citizens of
which are navigable in fact for vessels coming out of and said county and the public generally, "rowed, steered and
returning to the navigable waters of other States, by propelled their canoes, pirogues, rafts and other water-
continuous voyages, that they need proceed no further in craft, up and down said river,
their investigations, for the legislature had no right to
authorize its obstruction, and it would be their duty to
find the defendant guilty.
, we take judicial notice that the Ohio river, forming the A stream cannot be said to be navigable, in the legal sense
southern boundary of the State, and the Wabash, for some of that term, unless it be of such a character as to be
distance above its confluence with the Ohio, are navigable useful to the public as a channel of trade or commerce.
for vessels freighted with commerce, and that they are In Ledyard v. Ten Eyck, 36 Barb. 102 , it was held that
used as commercial highways in the trade and commerce Cazenovia Lake, which is five miles in length and three-
between different States. But, as to the Wabash, this fourths of a mile wide, was not a navigable water.
historic character ceases far below the county of Adams, Campbell, J., said: "It is not, in the language of Lord Hale, a
and the evidence in the case leaves no pretext for claiming highway for man or goods, or both, from one inland town
for its navigation in that county a national character. to another. It is too small to be of any practical use in
Nor is such a character claimed for it in the information, navigation."
which only alleges that it is navigable in and through
Adams county, "for canoes, pirogues, rafts and small
watercraft."
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The inquiry that meets us at the threshold is, what are The Ohio river is a great highway between states under
the rights of the navigator of this river, to the use of its national sanction, yet we suppose that it would not be in
banks and margins? conflict with the authority of the general government for
The Ohio river is a great navigable highway between this state, within her territorial limits, to provide for and
states, and the public have all the rights that by law regulate by law public landing places along its shore for
appertain to public rivers as against the riparian owner. the benefit of trade and commerce, and, for this
But there is no "shore," in the legal sense of that term; purpose, to exercise the right of eminent domain.
that is, a margin between high and low tide--the title to The right to the use of the river as a highway for passage
which is common. is distinct from the right to land for the purpose of
The banks belong to the riparian owner, and he owns an receiving and discharging freight and passengers. The
absolute fee down to low water mark. former is secured to the public; the latter must be
exercised with reference to the rights of the riparian
owner.
The court knows judicially, as matter of fact, that White "All that portion of the south-west quarter of section 17,
River, in Marion County, Indiana, is neither a navigated nor in township 22 north, range 6 west of the second
a navigable river and it follows, … principal meridian, which lies in said county of Warren,
…of course, that by the express enactment of Congress, and north of the Wabash river
the title of its riparian proprietors extends to the thread of As has been seen, the Wabash river, a navigable stream,
the stream notwithstanding the bed of the stream was not the bed of which has neither been surveyed nor sold,
surveyed by the United States surveyor, nor, in terms, sold runs through this section, and cuts three of its quarter
to purchasers of the bordering lands. sections into fractional parts.
Ross v. Faust, 54 Ind. 471, 1876
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If the grantor, however, after giving the line to the Upon construction of law, which does not require express
river, bounds his land by the bank of the river, or words for the grant of every part, as houses, fences, mines,
describes the line as running along the bank of the or the elements of water or air, which all pass by the word
river, or bounds it upon the margin of the river, he "land;" and, as a grant of land by certain boundaries, prima
shows that he does consider the whole alveus of the facie passes all such parts to the grantee, usque ad caelum
stream a mere mathematical line, so as to carry his et ad infernos; so, within the same principle, it passes the
grant to the middle of the river, and it appears to me adjoining fresh-water stream, usque ad filum aquae.
equally clear that the grant is restricted where it is
bounded by the shore of the river…
The passing of the one kind may just as well be questioned The land in dispute lies wholly within the boundary
as another, not only in the eye of the law, but of common lines of what is designated on the government survey
sense and reason. Within the first maxim it is said, one as "Kankakee River", and represents only that territory
shall not build so as to overhang another's premises, necessary to, and which does in fact complete the
darken his lights, or confine the air; and surely it would be fractional sections and subdivisions thereof designated
more absurd for the law to give a man the shore or side of and indicated on said plat as surveyed and as being
a fresh-water river; and yet, by saving the bed to the bounded by the meander line of such river.
grantor, make the owner of the land a trespasser, every In other words, the fractional sections bounded by the
time he should slake his thirst or wash his hands in the meander lines of the territory designated on such plat
stream. as "Kankakee River" are made fractional by reason of
the meandering of such river;
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This being an action by the State to quiet its title to the There is, however, another rule of law which is
lands in controversy, the burden is on it to prove that it recognized by both appellant and appellees, and on
had title when it began this action. which appellees insist that both the State's title and their
Under the great weight of authority the question, title may be upheld--viz., the doctrine of "riparian
whether title to land which was once the property of the ownership".
United States government has passed from it, wherever Under this doctrine a grant or conveyance of land
presented, whether in a state or Federal court, must be bounded by a nonnavigable stream carries with it the
determined by the laws of the United States. bed of the stream to its center, unless a contrary
intention is manifest from the grant or conveyance itself.
This doctrine was recognized at common law and is
recognized and followed both by the Supreme Court of
the United States and by the Supreme Court of this State
If the meander line, in fact, merely marked the boundary Generally speaking, "meander lines are run in surveying
between surveyed and unsurveyed territory, it seems fractional portions of the public lands bordering on
that under the weight of authority, the doctrine of navigable rivers, not as boundaries of the tract, but for
riparian ownership would have no application, but the the purpose of defining the sinuosities of the banks of
purchaser of the surveyed territory would be limited to the stream, and as the means of ascertaining the
that included within the survey. quantity of the land in the fraction subject to sale, and
The rule in favor of natural monuments as against other which is to be paid for by the purchaser. * * *
calls in a survey is universal. Proprietors bordering on streams not navigable, unless
restricted by the terms of their grant, hold to the center
of the stream."
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"The second section of the Act of Congress of 1796 In the instant case no such intent appears, as between
provides that navigable rivers shall not be included in the government and the State. On the contrary, the facts
public surveys; but does not indicate what shall be all justify, if they do not compel, the inference that the
considered such; and … stream and not the meander line should be treated as
…it is left to the discretion of the surveyor to include a the boundary. We say this because it appears from the
given river or not. Act of Congress pursuant to which the patent of the
But of course his decision can not be conclusive." United States government was issued, and to which
reference was had in the patent, that it was the purpose
While a meander line may be and frequently is treated as
and intent of Congress "that all the 'swamp and
a boundary line yet this is done only when it appears
overflowed lands' made unfit thereby for cultivation
that it was the intent of the parties to the instrument of
within the State of Indiana which remained unsold at the
conveyance, that it should be so treated.
passage of said act shall be granted to said State."
We next inquire whether the State has parted with its We have already indicated in this opinion that we thought
title to this land. it was the clear intent of the government to pass and the
The important and influential reason for the existence of State to accept all the swamp lands in the State and, to
the rule which gives a natural monument favor over accomplish that purpose, we concluded that, as between
other calls in a survey is because it is presumed to be the government and the State, it was the duty of the court
the intention of the parties to the grant to convey the to treat the watercourse meander line as the true boundary
lands actually surveyed, and natural monuments when of the lands selected by the State under such Swamp Land
called for are supposed to include and bound the lands Act.
so surveyed and the presumption is that such We now inquire, What was the intent between the State and
monuments are less likely to be mistaken than are other its patentees as shown by the patents and by the act of the
calls in the survey. legislature pursuant to which such patents were issued
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The bed of the lake was not in a condition to be sold, and Land is never appurtenant to land.
hence they had no authority to dispose of it directly or The doctrine of riparian ownership applies only where
indirectly. the watercourse is in fact the boundary of the lands to
To grant the contention of appellee would be to hold that a which the doctrine is sought to be applied, and …
grantee from the State of a forty-acre tract of overflowed …where there is uncertainty as to whether the meander
and swamp land, bordering upon a lake four miles in line or the watercourse was intended as the boundary in
width, would take by the State's deed, not only the forty determining such question reference must be had to the
acres, but in addition a strip of land as wide as the forty- conveyance to the party claiming the application of such
acre tract and two miles long. doctrine and to the time of such conveyance, and not to
a remote time of conveyance.
"The limit of the boundary in the direction of the river, It is fundamental in the law of accretions that the land to
by an intervening street, prevents the proprietor from which they attach must be bounded by the water to
claiming the alluvion. entitle its owner to such increase. In the very nature of
'It is not then,' …'the existence of the road or causeway things, accretions depend upon actual contiguity,
which deprives the owner of the alluvion, but it is the without any separation of the claimant's land from the
fact that the road or causeway is the boundary of the accumulated alluvion by the lands of another, however
land.'" narrow the intervening strip may be, or whatever the size
of the claimant's tract behind it.
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"The channel of a public navigable river is properly At Olcott falls the public has a right of passage for logs
described as a public highway." … as free and convenient as would be afforded by the river
"A stream may be a public highway for flotage when it is in its natural condition, unless the highway has been
capable, in its ordinary and natural stage in the seasons wholly or partially discontinued by law.
of high water, of valuable public use.... …The riparian proprietors, incorporated or
It is a public highway by nature, but one which is such unincorporated, in the exercise of their private rights,
only periodically, and while the natural condition permits may change the natural condition of the stream, so far
a public use.... as changes are possible without an infringement of the
The public right is measured by the capacity of the public right.
stream for valuable public use in its natural condition."
"The idea is sometimes entertained that the right to Some few passages may be found in the books in
pass along a public navigable river carries with it the which judges are reported to have said that subjects
right to fish in it, have a right to fish in navigable rivers, just as in the
…but so far as regards non-tidal rivers this is not so. sea;
No lawyer could take that view. Persons using a …but on investigation it always will be found that
navigable highway no more acquire thereby a right to they are referring to navigable rivers where the tide
fish there than persons passing along a public ebbs and flows and nothing else.
highway on land acquire a right to shoot upon it.
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…injunction was ordered issued against appellant in However, the evidence shows and the finding states that
favor of appellees, commanding the removal of certain the St. Joseph river is a navigable stream, and while the
obstructions from the St. Joseph river in the city of South finding also shows that it is not extensively used for
Bend, Indiana. navigation and is more generally used for other
…said company erected a dam across the river, purposes, yet the limited use made of the river for
purchased land along the river, built raceways, installed navigation and its use for other purposes does not
water wheels, and did the other things necessary to use change the ultimate fact that it is a navigable stream and
the water power… as such a public highway.
The St. Joseph river is a navigable stream but has not The obstruction of the St. Joseph river as shown by the
been navigated since 1852, except by small boats over evidence and the finding of facts creates a public
certain limited portions of the stream… nuisance.
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From about 1821 to about 1855, White River was used In addition to such downstream business, it appears that
for carrying cargoes of mess pork, prime pork, lard, ham keelboats ascended the stream via the Wabash and White
shoulders, bulk port, flour, corn, bacon, lumber, venison Rivers as far as Indianapolis, …
hams, walnuts and other products from all points on …and that at the time of the admission of the State of
White River in Morgan County to New Orleans, Louisiana. Indiana into the Union, and for a long time prior thereto,
The flat boats ranged in size from boats 50 feet long, 12 White River had been used as a highway and a mode of
feet wide and two feet deep with a capacity of 75,000 travel by Indians, traders, explorers, missionaries and
pounds, to boats 100 feet long, 20 feet wide, 3 1/2 feet early settlers, and, …
deep and with a carrying capacity of 400,000 pounds. …in 1831, two steamboats reached Indianapolis via White
It was only during the months of February, March, April, River, one of which towed a loaded barge.
and sometimes in May, that these barges proceeded
down the river to New Orleans.
It calls attention to the fact that we must remember that So it seems that the correct test for determining the
the first steamboat in operation in this country was on navigability of White River is whether or not it was
the Hudson River in 1807, and that it took a number of susceptible and available for such use when the State was
years for steamboats to reach remote sections of the admitted to the union and it, therefore, is not material if
country, such as Indiana was at that time. upstream traffic offered difficulties. The true test seems
As a result, the natural and reasonable way of travel was to be the capacity of the stream, rather than the manner
by flatboats and keelboats and, when such traffic is or extent of use.
shown to have occurred on White River, that is In Ross v. Faust, supra, this court held that it had judicial
tantamount to a finding that White River, at that time, knowledge of the fact that White River in Marion County,
was navigable. Indiana, is neither a navigated nor navigable river.
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This court held in Indianapolis Water Co. v. Kingan & Co., It is our conclusion that none of those cases had in them
supra, that …White River runs through Marion County sufficient facts to be able to adjudicate the navigability of
and is not navigable and that the title should pass, to the White River in 1816, and that, therefore, none of those
thread of a stream… cases is pertinent here.
And it is true that all those cases decided was that White As between the parties and proprietors they are binding,
River is not or was not at the time of said decision a but as between the State of Indiana and those parties
navigable stream. they are not binding. We are not disposed to follow them.
None of those cases involved land in Morgan County.
The owners of lands situate on the banks of fresh- The right of fishing in Lake Erie and its bays, is not
water navigable streams are owners of the beds of the limited to the proprietors of the shores; and the right of
rivers to the middle of the stream, as at common law. fishing in these waters is as public as if they were
In the United States, the great navigable lakes are subject to the ebb and flow of the tide.
properly regarded as public property, and not Where no question arises in regard to the right of a
susceptible of private property any more than the sea. riparian owner to build out beyond his strict boundary
A grant giving the ocean or a bay as the boundary, by line, for the purpose of affording such convenient
the common law, carries it down to ordinary high- wharves and landing places in aid of commerce as do
water mark. The usual high-water mark is the not obstruct navigation, the boundary of land, in a
boundary on the sea, and not the highest or lowest conveyance calling for Lake Erie and Sandusky bay,
point to which it rises or recedes. extends to the line at which the water usually stands
when free from disturbing causes.
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The water's edge provides a readily discernible More than 130 years ago, in Sloan v. Biemiller (1878), 34
boundary for both the public and littoral Ohio St. 492, we determined that when a real estate
landowners. The waters and submerged bed of conveyance calls for Lake Erie as the boundary, the
Lake Erie when under such waters is controlled by littoral owner's property interest "extends to the line at
the state and held in public trust, while the littoral which the water usually stands when free from
owner takes fee only to the water's edge. disturbing causes."
In our analysis, we adopted the position taken by the
Supreme Court of Illinois in Seaman v. Smith (1860), 24
Ill. 521, syllabus ("The line at which the water usually
stands when free from disturbing causes, is the
boundary of land in a conveyance calling for Lake
Michigan as a line").
Subsequent to our decision in Sloan, in State v. Cleveland The National Resources Commission ("NRC") conducted a
& Pittsburgh RR. Co. (1916), 94 Ohio St. 61, 79, 113 N.E. meeting on November 15, 2011. According to the
677, we held that "the state holds the title to the meeting minutes, IDNR's chief legal counsel presented
subaqueous land [of Lake Erie within the boundaries of information with respect to the shoreline along Lake
Ohio] as trustee for the protection of public rights." Michigan. The meeting minutes state:
In so holding, we followed our decision in Sloan, among [Counsel for IDNR] said there has not been a legal
other cases, and concluded that "[t]he littoral owner is determination of what is the upper limit of the bed of
entitled to access to navigable water on the front of Lake Michigan. In 1995, the Lakes Preservation Act
which his land lies, and, subject to regulation and established an elevation of 581.5 feet as the ordinary
control by the federal and state governments, high water mark for Lake Michigan…
"Where that falls on the beaches up there changes from
season to season as the sand erodes and is put back."
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…involves the title to the bed of a fresh-water lake, The conclusion we have arrived at is, that the owner of
situated in the north half of section 8, in township 36 lands bordering on non-navigable inland lakes, such as the
north, of range 1 west, in LaPorte county. This question one described in this case, …when the subdivisions of the
arises on demurrer to the appellee's answer to the land are surveyed by running a meander line between the
complaint. The lake is not navigable. dry land and the water to ascertain the number of acres of
The appellant owns these three lots, viz., lots 1, 3 and 4, dry land and designating such subdivision as a fractional
deriving his title by mesne conveyances from the United quarter or a lot, giving the number of acres of dry land,…
States, prior to 1884, and by virtue of such conveyances takes the title to all the land contained within the
and ownership claims to own and have the title to the subdivision…
land beneath the waters of the lake. that is to say, he takes as a riparian owner and his title
includes, and he owns, the land beneath the lake far enough
beyond the meandered line and water's edge to make out
the full subdivision in which his land is so situated.
It is contended that the riparian owner bordering on a The true doctrine to apply in the disposition of such land
non-navigable lake, like a river, takes to the thread or as is covered by the body of such lakes, we think, is that
center of the lake. This rule is impracticable when the government in making surveys…
applied to lakes. …included in such surveys all the land within the district
Where the body of water is a running stream, being a surveyed, and if there was a lake or large pond which
narrow rivulet at its head and growing larger and covered a part of a subdivision it was meandered out,
widening until it enters into another stream still larger; and the dry land in such subdivision designated as a
or where it is a long, narrow body of water, there is no fractional subdivision, or lot; …
trouble in applying this doctrine; …that in the purchase of such fractional subdivision, or
lot, the purchaser took title to it as a riparian owner,
with the right to the land as the water receded within the
boundary lines of the subdivision
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This is an action of ejectment brought by Gertrude H. It will be observed that the government surveys made in
Hardin, the plaintiff in error, to recover possession of 1834-5 upon which the patent was issued, not only laid
certain fractional sections of land lying on the west and down a meander line next to the lake, but also …
south sides of a small lake in Cook County, Illinois… …described said lines as running "along the margin of
The lake is two or three miles in extent, and the main the lake;" and the plat of the survey, returned to the
question in the cause is, whether the title of the riparian general and local land offices, and referred to in the
owner on such a lake extends to the centre of the lake, patent for identification of the land granted, exhibited
or stops at the water's edge. the granted tracts as actually bordering upon the lake;
The court below decided that the plaintiff's title only and the lake itself on said plat was marked with the
extended to low-water mark… words "Navigable lake," although the fact found by the
The question is of much importance, and deserves a court is that the lake was not and is not a navigable lake,
careful consideration. but a non-navigable fresh-water lake or pond.
the question is as to the effect of that title in reference It has been the practice of the government from its
to the lake and the bed of the lake in front of the lands origin, in disposing of the public lands, to measure the
actually described in the grant. price to be paid for them by the quantity of upland
This question must be decided by some rule of law, and granted, no charge being made for the lands under the
no rule of law can be resorted to for the purpose except bed of the stream, or other body of water.
the local law of the State of Illinois. The meander lines run along or near the margin of such
If the boundary of the land granted had been a fresh- waters are run for the purpose of ascertaining the exact
water river, there can be no doubt that the effect of the quantity of the upland to be charged for, and not for the
grant would have been such as is given to such grants by purpose of limiting the title of the grantee to such
the law of the state, extending either to the margin or meander lines.
centre of the stream, according to the rules of that law.
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It has frequently been held, both by the Federal and state This right of the States to regulate and control the shores
courts, that such meander lines are intended for the of tide waters, and the land under them, is the same as
purpose of bounding and abutting the lands granted upon that which is exercised by the Crown in England.
the waters whose margins are thus meandered; and that In this country the same rule has been extended to our
the waters themselves constitute the real boundary. great navigable lakes, which are treated as inland seas;
Meander lines are run in surveying fractional portions of and also, in some of the States, to navigable rivers, as the
the public lands bordering upon navigable rivers, not as Mississippi, the Missouri, the Ohio, and, in Pennsylvania,
boundaries of the tract, but for the purpose of defining the to all the permanent rivers of the State;
sinuosities of the banks of the stream, and as the means of but it depends on the law of each State to what waters
ascertaining the quantity of the land in the fraction subject and to what extent this prerogative of the State over the
to sale, and which is to be paid for by the purchaser. lands under water shall be exercised.
This right of the States to regulate and control the shores As was well said by the Supreme Court of Illinois in
of tide waters, and the land under them, is the same as Middleton v. Pritchard, …, "Where the government has not
that which is exercised by the Crown in England. reserved any right or interest that might pass by the
In this country the same rule has been extended to our grant, nor done any act showing an intention of
great navigable lakes, which are treated as inland seas; reservation, such as platting or surveying, we must
and also, in some of the States, to navigable rivers, as the construe its grant most favorably for the grantee, and
Mississippi, the Missouri, the Ohio, and, in Pennsylvania, that it intended all that might pass by it. What will pass
to all the permanent rivers of the State; then by a grant bounded by a stream of water? At
but it depends on the law of each State to what waters common law, this depended upon the character of the
and to what extent this prerogative of the State over the stream, or water. If it were a navigable stream, or water,
lands under water shall be exercised. the riparian proprietor extended only to high-water mark.
If it was a stream not navigable, the rights of the riparian
owner extended to the centre thread of the current
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At common law, only arms of the sea, and streams where That the common law is the true and only law of Illinois
the tide ebbs and flows, are deemed navigable. Streams on the subject of land titles, and especially as to the
above tide water, although navigable in fact at all times, rights of riparian owners, and the construction of deeds
or in freshets, were not deemed navigable in law. and grants of land bounded by streams and permanent
To these, riparian proprietors bounded on or by the river, bodies of water (except the great navigable lakes before
could acquire exclusive ownership in the soil, water and referred to) is so clearly shown by the statutes and by the
fishery, to the middle thread of the current; subject, whole course of the decisions of the Supreme Court of
however, to the public easement of navigation. that State, that it hardly needs any argument to support
the proposition.
Illinois was a portion of the Northwest Territory which Except with regard to Lake Michigan, which is a navigable
Virginia always claimed as a part of her domain until she lake and one of the internal seas of the country, it cannot
ceded it to the United States, and which received from be pretended that the common law relating to grants of
that State many of its original settlers, who regarded land abutting on streams and permanent bodies of water,
Virginia as their parent State, and had a strong and to the rights of riparian owners, are of such a local
attachment for its institutions and laws, and may be said character peculiar to England as to be inapplicable to the
to have carried those laws with them. State of Illinois.
The disposal of the present case, therefore, seems to us
to require, further, only an answer to the single question,
"What is the common law in regard to the title of fresh-
water lakes and ponds?" And on this subject we think
there can be but very little difference of opinion.
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We will only refer to a single other case, decided in Illinois The Supreme Court of Michigan in a recent case ( Clute v.
itself in 1867, Beckman v. Kreamer, 43 Illinois, 447 Fisher, 65 Michigan, 48, since followed by Stoner v. Rice,
By the common law, a right to take fish belongs so 121 Indiana, 51) held …
essentially to the right of soil in streams or bodies of …that the riparian owner of a fractional lot bounded by a
water, where the tide does not ebb and flow, that if the non-navigable lake only takes so much of the lake
riparian proprietor owns upon both sides of such stream, bottom as is required to fill out the section or quarter
no one but himself may come upon the limits of his land section of which he owns the fraction;
and take fish there; and the same rule applies so far as in other words, that his common law right is limited by
his land extends, to wit, to the thread of the stream, the sectional lines of the survey.
where he owns upon one side only."
The Supreme Court of Michigan in a recent case ( Clute v. It was conceded, however, that if the lake were so large
Fisher, 65 Michigan, 48, since followed by Stoner v. Rice, that the lines of the granted sections would not embrace
121 Indiana, 51) held … the whole lake bottom, then the riparian ownership would
…that the riparian owner of a fractional lot bounded by a be extended to the centre so as to include the whole
non-navigable lake only takes so much of the lake bottom.
bottom as is required to fill out the section or quarter
section of which he owns the fraction;
in other words, that his common law right is limited by
the sectional lines of the survey.
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Appellees claim that their deeds make them riparian If a stream or highway, simply without any modifying
owners, and that as such they own to the center of the words, is made a boundary in a deed, and the grantor
lake, if not to the south line of the quarter section in owns the fee of such stream or highway, there is no
which their lands are situated. doubt that title is carried to the thread of the stream or
…"it was in the power of Peter R. Vanatta, the owner of the middle of the highway.
this quarter section, in conveying any part of it, to have
reserved by apt words in his deed the whole lake or any
part of it, or his riparian rights, … but this must be done
by express and unmistakable language."
The issue for our decision is thus clearly suggested. The
words of description in the Vanatta deeds must decide
the question by determining the intent of the grantor at
the times of making the conveyances.
The boundary line between the States of Georgia and As to streams and highways, then, the rule seems to be
Alabama is described as "beginning on the western bank that if the stream or highway, simply and without
of the Chattahoochee river," "running thence up the said modifying words, is named as the boundary, the title is
river Chattahoochee and along the western bank thereof." taken to the middle of the stream or highway, provided
The Supreme Court of the United States, in the case of the grantor's title extend so far; …
Howard v. Ingersoll, 54 U.S. 381 , in defining the …but if the bank, or edge, or low-water mark, or high-
boundary thus indicated, said that the words "along the water mark, of the stream, or the edge or line of the
western bank thereof," limited the effect and operation of highway, or other clearly defined line along the stream or
the other words of the description, "and excluded the highway, is given as the boundary, then the title will not
bed of the river." be carried beyond the boundary so defined.
As to non-navigable ponds or lakes, it will be found that
the rule as to riparian proprietorship must be still further
modified.
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The first deed, that to Martin V. Carney, conveys "the But "the west portion" of the quarter section has no
west portion of the southeast quarter of section 21." definite meaning in itself, and can only be given meaning
If the grantor had said "the west half," or "the west by the particular description which follows:
quarter," or any other definite division of the quarter "Bounded on the south by Cicott's lake, and meandering
section, there is no doubt that, under the rule in Stoner v. along the water's edge eastward to a stake at the lake,
Rice, …, low-water mark."
it would have been a conveyance of the part of the land It seems to us that these words plainly limit the southern
under the lake, as well as the dry land included in the boundary to the line "along the water's edge eastward to
description. a stake at the lake, low-water mark."
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The right of the adjacent proprietor to the water of There is another matter to be considered before we
the stream is a usufructory right, appurtenant to the come to the questions arising upon the pleadings,
freehold, not an absolute property. viz: the effect of a statute declaring an unnavigable
Hence the state, in its exercise of the right of eminent stream to be navigable.
domain, can subject the waters of such stream to It is worthy of remark, that in all the statutes of this
other public uses the same as any other private description, enacted hitherto in Ohio, no provision is
property, by making a just compensation for the made for compensating the owners of the land,
injury, and not otherwise. through which such small streams flow, for any injury
which may accrue in consequence of thus converting
their private property into public highways.
There is no provision made for the purchase of the A right of the owners of the lands on both banks of non-
easement thus dedicated to the public use, or navigable streams to use the water flowing in them, in
attempted to be created for the public use. Yet prior any manner consistent with the rights of persons above
to the passage of these acts, the owners of the lands and below them, without let or hindrance, is a right of
on both banks of such streams owned the streams property within the protection of the constitution, and
and the right to use the water flowing in them, in any that can not be impaired by a legislative enactment which
manner consistent with the rights of persons above provides no compensation to the proprietor for the injury.
and below them, without let or hindrance. They …although we deny to the legislature the power to
might erect dams or other obstructions to direct the change the private rights of the riparian proprietor by so
water from the bed of the stream to any point of their doing, yet for all other purposes consistent with the
premises, returning it to its natural channel after provisions of the constitution, the statutes should be
using it at their pleasure or convenience. sustained
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It is evident that a definition that would at this day Some of our rivers are as navigable for many hundreds
limit public rivers in this country to tide-water rivers is of miles above as they are below the limits of tide
utterly inadmissible. We have thousands of miles of water, and some of them are navigable for great
public navigable water, including lakes and rivers in distances by large vessels, which are not even affected
which there is no tide. And certainly there can be no by the tide at any point during their entire length.
reason for admiralty power over a public tide-water, A different test must, therefore, be applied to
which does not apply with equal force to any other determine the navigability of our rivers, and that is
public water used for commercial purposes and found in their navigable capacity. Those rivers must
foreign trade. The lakes and the waters connecting be regarded as public navigable rivers in law which are
them are undoubtedly public waters; and we think are navigable in fact. And they are navigable in fact when
within the grant of admiralty and maritime jurisdiction they are used, or are susceptible of being
in the Constitution of the United States. used…[continued]
…in their ordinary condition, as highways for If we apply this test to Grand River, the conclusion
commerce, over which trade and travel are or may follows that it must be regarded as a navigable
be conducted in the customary modes of trade and water of the United States.
travel on water. (**) And they constitute navigable From the conceded facts in the case the stream is
waters of the United States within the meaning of capable of bearing a steamer of one hundred and
the acts of Congress, in contradistinction from the twenty-three tons burden, laden with merchandise
navigable waters of the States, when they form in and passengers, as far as Grand Rapids, a distance
their ordinary condition by themselves, or by of forty miles from its mouth in Lake Michigan.
uniting with other waters, a continued highway over And by its junction with the lake it forms a
which commerce is or may be carried on with other continued highway for commerce, both with other
States or foreign countries in the customary modes States and with foreign countries…
in which such commerce is conducted by water.
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In The Montello, the Supreme Court clarified that The term "waters of the United States" means
“customary modes of trade and travel on water” 1. All waters which are currently used, or were used in the
encompasses more than just navigation by larger vessels: past, or may be susceptible to use in interstate or foreign
The capability of use by the public for purposes of commerce, including all waters which are subject to the
transportation and commerce affords the true criterion of ebb and flow of the tide;
the navigability of a river, rather than the extent and
2. All interstate waters including interstate wetlands;
manner of that use. If it be capable in its natural state of
being used for purposes of commerce, no matter in what 3. All other waters such as intrastate lakes, rivers,
mode the commerce may be conducted, it is navigable in streams (including intermittent streams), mudflats,
fact, and becomes in law a public river or highway. sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use,
In that case, the Court held that early fur trading using
degradation or destruction of which could affect
canoes sufficiently showed that the Fox River was a
interstate or foreign commerce including any such waters:
navigable water of the United States.
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Returning to the "navigability in fact" rule, the Court The Daniel Ball formulation has been invoked in
has explained the elements of this test. A basic considering the navigability of waters for purposes of
formulation of the rule was set forth in The Daniel Ball, assessing federal regulatory authority under the
77 U.S. 557, 10 Wall. 557, 19 L. Ed. 999 (1871), a case Constitution, and the application of specific federal
concerning federal power to regulate navigation: statutes, as to the waters and their beds.
"Those rivers must be regarded as public navigable …It has been used as well to determine questions of
rivers in law which are navigable in fact. And they are title to water beds under the equal-footing doctrine.
navigable in fact when they are used, or are … It should be noted, however, that the test for
susceptible of being used, in their ordinary condition, navigability is not applied in the same way in these
as highways for commerce, over which trade and travel distinct types of cases.
are or may be conducted in the customary modes of
trade and travel on water."
The segment-by-segment approach to navigability for …By contrast, segments that are nonnavigable at the
title is well settled, and it should not be disregarded. A time of statehood are those over which commerce could
key justification for sovereign ownership of navigable not then occur. Thus, there is no reason that these
riverbeds is that a contrary rule would allow private segments also should be deemed owned by the State
riverbed owners to erect improvements on the riverbeds under the equal-footing doctrine.
that could interfere with the public's right to use the
waters as a highway for commerce.
While the Federal Government and States retain
regulatory power to protect public navigation, allocation
to the State of the beds underlying navigable rivers
reduces the possibility of conflict between private and
public interests.
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In reaching its conclusion that the necessity of portage Having clarified that portages may defeat navigability for
does not undermine navigability, the Montana Supreme title purposes, and do so with respect to the Great Falls
Court misapplied this Court's decision in The Montello, 87 reach, the Court sees no evidence in the record that could
U.S. 430, 20 Wall. 430, 22 L. Ed. 391. See 355 Mont., at demonstrate that the Great Falls reach was navigable.
438, 229 P. 3d, at 446. The consideration of portage in… Montana does not dispute that overland portage was
The Montello was for a different purpose. The Court did necessary to traverse that reach. Indeed, the State admits
not seek to determine whether the river in question was "the falls themselves were not passable by boat at
navigable for title purposes but instead whether it was statehood." …And the trial court noted the falls had never
navigable for purposes of determining whether boats upon been navigated. …. Based on these statements, this Court
it could be regulated by the Federal Government. now concludes, contrary to the Montana Supreme Court's
The primary focus in The Montello was not upon decision, that … the 17-mile Great Falls reach, at least
navigability in fact but upon whether the river was a from the head of the first waterfall to the foot of the last,
"navigable water of the United States." is not navigable for purposes of riverbed title under the
equal-footing doctrine.
The Montana Supreme Court further erred as a matter of Evidence of present-day use may be considered to the
law in its reliance upon the evidence of present-day, extent it informs the historical determination whether
primarily recreational use of the Madison River. Error is not the river segment was susceptible of use for commercial
inherent in a court's consideration of such evidence, but navigation at the time of statehood.
the evidence must be confined to that which shows the For the susceptibility analysis, it must be determined
river could sustain the kinds of commercial use that, as a whether trade and travel could have been conducted "in
realistic matter, might have occurred at the time of
the customary modes of trade and travel on water," over
statehood.
the relevant river segment "in [its] natural and ordinary
Navigability must be assessed as of the time of statehood, condition."
and it concerns the river's usefulness for " 'trade and
travel,' " rather than for other purposes.
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At a minimum, therefore, the party seeking to use The public trust doctrine is of ancient origin. Its roots trace
present-day evidence for title purposes must show: to Roman civil law and its principles can be found in the
(1) the watercraft are meaningfully similar to those in English common law on public navigation and fishing
customary use for trade and travel at the time of rights over tidal lands and in the state laws of this country.
statehood; and the public trust doctrine remains a matter of state law,
(2) the river's post-statehood condition is not materially Under accepted principles of federalism, the States retain
different from its physical condition at statehood. residual power to determine the scope of the public trust
… If modern watercraft permit navigability where the over waters within their borders,
historical watercraft would not, or if the river has changed while federal law determines riverbed title under the
in ways that substantially improve its navigability, then the equal-footing doctrine.
evidence of present-day use has little or no bearing on
navigability at statehood.
The Montana Supreme Court's ruling that Montana owns The private grantee of the land cannot do anything
and may charge for use of riverbeds across the State was that will interfere with the channel, or hamper the
based upon an infirm legal understanding of this Court's
passage of water craft through it. But he may, without
rules of navigability for title under the equal footing
doctrine. As the Court said in Brewer-Elliott "It is not for a
the limits of the channel, erect fishing houses or such
State by courts or legislature, in dealing with the general other structures as his means and the depth of water
subject of beds or streams, to adopt a retroactive rule for will permit; he may convert shallow portions into
determining navigability which . . . would enlarge what cranberry patches; he may fill up other parts and make
actually passed to the State, at the time of her admission, solid ground. Although such action by him may lessen
under the constitutional rule of equality here invoked." the water surface available for the fishing boats, the
fishermen cannot complain. Such public right to fish
always yields to any permanent improvement by the
owner of the land on which the water rests.
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The principle clearly deducible is, that as to navigable Among the rights of the public is that of mooring
rivers, the private right of the riparian owner to the land, vessels for the purpose of repairs, and of putting in
ordinarily covered by water, is in all cases subordinate to engine, boilers and machinery, after such vessels have
the paramount public right of navigation, and its been launched. Such use, reasonably enjoyed, is not a
incidents. trespass upon the lands of a riparian owner, in front of
The converse is expressed by Christiancy, J., in Rice v. whose river bank, outside of the dock line, such vessels
Rudiman, 10 Mich., 125, thus: "In other words, all the are moored, and such owner will not be entitled to an
private or individual use and enjoyment of which the injunction forbidding such use, unless special injury to
land is susceptible, subordinate to, and consistent with, his property is shown.
the public right, belong to the riparian owner as against
any other person seeking to appropriate it to his
individual use.”
But the right of the public does not extend to use of Summary: the ship building company's act of carrying
lands of the owner not covered by water. lines across the property owner's bank, to which the
And where a builder of vessels so moored carries property owner had an absolute right which was not
lines from them across the river bank of such riparian qualified by any public use, constituted trespass
owner, against his objection, and fastens them upon which the property owner was entitled to enjoin. The
the land of such builder, and insists upon the right to court noted that such trespass could grow into a
continue such acts, the riparian owner may be prescriptive right, the risk of which should not be
entitled to an injunction, although his land is imposed upon the property owner. The court also
unimproved, and such acts produce no actual present noted that there was no hardship upon the ship
damage. building company to require it to obtain a right to
such use of the property owner's bank by negotiation.
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Lukis and appellees-petitioners Dean Ray, John In 2005, Lukis installed a pier that was eighty-nine feet
Blackburn, and Thomas Blackburn (collectively, the long and twenty-seven feet wide.
appellees) each own lakefront properties on Lake James The pier was located approximately ten feet closer to the
in Steuben County. Blackburns' west property line than piers installed by
Lukis's lot is on the west end of a cove and includes Lukis's predecessors had been.
85.19 feet of lake frontage. ] Lukis argues that the trial court erroneously concluded
The Blackburns' property abuts the eastern boundary of that the way in which the NRC calculated the parties'
Lukis's lot and includes 29.93 feet of lake frontage. Ray's respective riparian zones was contrary to law.
property abuts the eastern boundary of the Blackburns'
property and includes 24.02 feet of lake frontage.
None of the lots intersect the lake at right angles
Initially, as a general matter, we observe that a riparian In resolving the dispute, the Bath court stated that
owner acquires his rights to the water from his fee title "[t]here is no set rule in Indiana for establishing the
to the shoreland. extension of [property] boundaries into a lake between
A panel of this court has explained that contiguous shoreline properties."
[t]he rights associated with riparian ownership generally In Bath, the shoreline approximated a straight line and
include: the onshore property boundaries were perpendicular to
(1) the right of access to navigable water; the shore.
(2) the right to build a pier out to the line of Thus, the Bath court decided that the appropriate way to
navigability; determine riparian zones was to extend the onshore
boundaries into the lake.
(3) the right to accretions; and
(4) the right to a reasonable use of the water for general
purposes such as boating, domestic use, etc.
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Additionally, the court emphasized that "the riparian In considering how to establish the parties' riparian
right to build a pier is limited by the rights of the public zones, the Nosek court described three possible ways of
and of other riparian owners. Therefore, riparian owners doing so:
may build a pier within the extension of [their] shore . . . In the least complicated situation, where the course
boundaries only so far out as not to interfere with the of the shore approximates a straight line and the
use of the lake by others." onshore property division lines are at right angles with
In reaching its conclusion, the Bath court relied on an the shore, the boundaries are determined by simply
opinion of the Wisconsin Supreme Court--Nosek v. extending the onshore property division lines into the
Stryker, 103 Wis. 2d 633, 309 N.W.2d 868 (Wis. 1981) lake. . . .
Often, however, the boundary lines on land are not at "[i]n that case, we recognized that the onshore
right angles with the shore but approach the shore at boundaries of a riparian tract extend into the lake in a
obtuse or acute angles. In such cases, it is inappropriate line perpendicular to the shore, where the shoreline
to apportion the riparian tract by extending the onshore approximates a straight line.“
boundaries. Instead, the division lines should be drawn …"[i]nstead of a rigid application using a measure of
in a straight line at a right angle to the shoreline without depth or length to determine riparian boundaries, the
respect to the onshore boundaries. . . better view would be to apply a 'reasonableness' test to
A third method is used where the shoreline is irregular. accommodate the diverse characteristics of Indiana's
In that case, if it is impossible to draw lines at right numerous freshwater lakes."
angles to the shore to accomplish a just apportionment,
then the boundary line should be run in such a way as to
divide the total navigable waterfront in proportion to the
length of the actual shorelines of each owner taken
according to the general trend of the shore.
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it is apparent to us that the standards contained therein A riparian landowner does not own the water in a stream
are fluid and best applied on a case-by-case basis. that runs along his property, but he does own the right
Specifically, the Bath court concluded that there is no set to the reasonable use of the stream as part of the title to
rule for establishing the extension of boundaries into a his real estate.
lake between contiguous shoreline properties and the In Indiana, the rights associated with riparian ownership
Zappfe court applied a non- rigid reasonableness test. generally include:
The Nosek apportionment method would be a perfectly (1) the right of access to navigable water;
appropriate way to solve the parties' dispute, but this (2) the right to build a pier out to the line of
method has never been adopted as a fixed rule in navigability;
Indiana.
(3) the right to accretions;and
Indeed, as we have just concluded, there is no fixed rule
(4) the right to a reasonable use of the water for general
governing such disputes.
purposes such as boating and domestic use.
The trial court's decision appears to confuse riparian (a) Subject to subsection (b), a riparian owner of land in
rights and property ownership rights. It concluded "a Indiana bordering upon a navigable stream may do the
riparian owner takes to the low water mark, not to the following:
center as claimed by Plaintiffs." (1) Build and maintain:
However, in support of that conclusion the court cited a (A) within the premises bordering on the stream; and
decision where we determined the extent of an owner's (B) upon the submerged land beneath the water; a pier,
title to property: Irvin v. Crammond, 58 Ind. App. 540, wharf, dock, or harbor in aid of navigation and
108 N.E. 539, 541 (1915) ("where land is bounded by the commerce.
Ohio river on the Indiana side, the title of the owner
(2) Use, occupy, and enjoy the constructed item as
extends to low-water mark")
appurtenant to the owner's land.
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(b) A pier, dock, or wharf may not do any of the It is not apparent that Bainbridge stands for the
following: propositions that a riparian owner's structure can be
(1) Extend into the stream further than is necessary to placed only "in front of" the owner's land, that a dock
accommodate shipping and navigation. may not extend in front of another's land so long as it
(2) Obstruct shipping and navigation. does not block the other landowner's access to the river,
or that a riparian owner may not "encroach" on the other
owner's "riparian zone."
"Whether this statute is a complete definition of riparian
Ind. Code § 14-29-1-4 provides only that a dock may
rights or is meant only as a limitation on what types of
not "[e]xtend into the stream further than is necessary to
obstructions a riparian owner may place in a stream or
accommodate shipping and navigation" or "[o]bstruct
river is not clear."
shipping and navigation."
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In the absence of sufficient evidence to prove that a Accretion is the process of gradual and imperceptible
change in the course of a river occurs as the result increase in land caused by the deposit of earth, sand or
of avulsion, a court must presume that the change sediment thereon by contiguous waters and is held to be
occurs as the result of accretion. a source of title.
To avoid the presumption of accretion, a party Title to land formed by accretion is generally vested in
must present evidence to prove that the changes the riparian owner of the land to which the alluvion
are not gradual and imperceptible. attaches. Every proprietor of such riparian land is subject
A party seeking to prove avulsion must also prove to loss by the same means as may add to his territory
that the land currently on one side of the river is and as he is without remedy for his loss, he cannot be
held accountable for his gain.
the same as the land that formerly was on the
other side of the river.
An avulsion is a sudden and rapid change of the course where lands are overflowed and submerged, and within a
of a river by which the river abandons its old channel and reasonable time the waters retire and the land reappears,
seeks a new channel. Nebraska v. Iowa (1891), 143 U.S. the title of the owner is not disturbed, and the
359. proprietorship remains in the original owner
In order for an avulsion to occur there must be a sudden However, "where the lands of a riparian owner are
shifting of the channel of a river which cuts off a body of removed by the gradual process of erosion by the river,
land such that after the shift of the river that body of the land no longer capable of identification, but having
land remains identifiable as land which existed before been carried away entirely, and the river occupies the
the shift and which never became part of the river bed. identical space formerly occupied by the lands of the
An avulsion has no effect on the title to land. riparian owner, the title to the land so occupied by the
bed of the river passes from the owner
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In assessing the changes that have occurred in riparian In New Orleans v. United States, 10 Pet. 662 717, this
rights down the corridor of years it is well to keep in court said: "The question is well settled at common
mind an appreciation for the basic rationale behind the law, that the person whose land is bounded by a
rule of law which gave to the riparian owner the rights to stream of water which changes its course gradually by
land surfacing through the process of accretion or alluvial formations, shall still hold by the same
reliction. In its nascency, the sole purpose of the rule boundary, including the accumulated soil. No other
was to assure to the riparian owner that he would never rule can be applied on just principles.
be cut off from his access to water. Every proprietor whose land is thus bounded is subject
If an intervening party were permitted to gain title to to loss by the same means which may add to his
accretions or to land exposed by the subsidence of territory; and, as he is without remedy for his loss in
water, the riparian landowner would be deprived of his this way, he cannot be held accountable for his gain."
valuable water-access rights."
It is equally well settled, that where a stream, which is These propositions, which are universally recognized
a boundary, from any cause suddenly abandons its old as correct where the boundaries of private property
and seeks a new bed, such change of channel works no touch on streams, are in like manner recognized where
change of boundary; and that the boundary remains as the boundaries between States or nations are, by
it was, in the center of the old channel, although no prescription or treaty, found in running water.
water may be flowing therein. This sudden and rapid With such conditions, whatever changes happen to
change of channel is termed, in the law, avulsion. In either bank of the river by accretion on the one or
Gould on Waters, sec. 159, it is said: "But if the change degradation of the other, that is, by the gradual, and,
is violent and visible, and arises from a known cause, as it were, insensible accession or abstraction of
such as a freshet, or a cut through which a new mere particles, the river as it runs continues to be the
channel is formed, the original thread of the stream boundary.
continues to mark the limits of the two estates."
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...if, deserting its original bed, the river forces for itself a Controversies growing out of the shifting of
new channel in another direction, then the nation, earth by the action of the waters in running
…suffers injury by the loss of territory greater than the streams gave rise to the doctrines of
benefit of retaining the natural river boundary, and that accretion and avulsion.
boundary remains in the middle of the deserted river bed.
In cases of accretion, owing to the difficulty
For, in truth, just as a stone pillar constitutes a boundary,
not because it is a stone, but because of the place in which of tracing the original source, the law awards
it stands, it to the owner of the land to which it
…so a river is made the limit of nations, not because it is becomes attached, while in cases of avulsion
running water bearing a certain geographical name, but the original owner still holds the title.
because it is water flowing in a given channel, and within
given banks, which are the real international boundary.
Accretion is said to be the deposit by gradual Avulsion may exist, first, where a stream changes
and imperceptible process, its course, and, second, where a considerable
quantity of earth is carried en masse across the
while avulsion involves the transfer of a channel and attached to the opposite shore.
considerable quantity of earth beyond or over As applied to the second class: Avulsion is the
the channel of the stream. removal of a considerable quantity of earth from
Accretion is the usual and ordinary case of the land of one proprietor and its deposit upon
or annexation to the land of another suddenly
the shifting of earth by the action of the
and by the perceptible action of the water.
waters and Where the change to the channel of a river is
avulsion is of a somewhat extraordinary made suddenly and violently, and is visible, and
nature. the effect is certain, it is said to be by avulsion.
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In Coulthard v. Davis, 101 Iowa 625, 70 N.W. "That while the disappearance, by reason of this
716, it is held: "Land detached from one side process, of a mass of bank may be sudden and
of a river by a sudden change in the channel, obvious, there is no transfer of such a solid body of
and left connected with land on the other earth to the opposite shore, or anything like an
side, in such manner as to be capable of instantaneous and visible creation of a bank on that
identification, is not an accretion." shore.
The question of identification must The accretion, whatever may be the fact in respect to
necessarily play an important part in applying the diminution, is always gradual and by the
the doctrine of avulsion. For without imperceptible deposit of floating particles of earth.
identification there can be no avulsion in a There is, except in such cases of avulsion as may be
legal sense. noticed hereafter, in all matter of increase of bank,
always a mere gradual and imperceptible process.
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It also appears from a copy of the original Government Appellants contend that they are the record owners of all
survey and from the facts not in dispute that the of the land lying north of lots Nos. 1 and 2 in Pleasant
southeast quarter of Sec. 12, Twp. 33 N., R. 6 E., in View in the southeast quarter of said section 12.
Kosciusko county, Indiana, is a part of Government lot In support of this contention, they argue that the deed
No. 4 and that it extends to the north far out into from Borders to Adams described the real estate as
Tippecanoe Lake. commencing at the ordinary high water mark of
…appellees argue that they are the record owners of lots Tippecanoe Lake at a willow tree and iron stake and that
Nos. 1 and 2 in Pleasant View and that such ownership the real estate described is exactly 250 by 550 feet; that
carries with it all of the land to the quarter section line, the high water mark at a willow tree and an iron stake
together with riparian rights; constituted a monument designated as the place of
beginning…
It is important to note that the grantor designated two When, however, the intent is not expressed, our courts
different monuments as the place of beginning, one at the have indulged the presumption that, …
northwest corner of the southeast fractional quarter of …unless a contrary intention appears or is clearly
section 12, and the second at the "ordinary" high water inferable from the terms of the deed of conveyance, the
mark of the lake at a willow tree and iron stake. grantee of land bounded by a nonnavigable stream or
(Assuming these three markers were at the same point.) river, and, …
The intent of the parties, if it can by any possibility be …in the majority of cases, by lakes and ponds, acquires
gathered from the language employed, will be effectuated. the title to the land to the center or thread of the water,
When that intention is manifested in express terms, there on the theory that the grantor will not be presumed to
remains no room for presumptions, and the grantee will have reserved a strip of land covered by water which will
be governed by such expressed intentions. To this extent be of no practical value to him, particularly in the
rules of construction are inoperative. absence of a way of access thereto.
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However, this presumption is merely a principle of Such presumption is invoked except when it clearly
interpretation adopted for the purpose of finding out the appears from the language of the conveyance that the
true meaning of the words used. contrary was actually intended and may be rebutted by
This presumption is founded on a rule of public policy proof of the establishment of monuments which may
which discourages the separation of the title of land and limit or restrict the boundary.
of adjacent strips in the beds of highways which after Apart from some exceptional cases, it may be said that
remaining in abeyance for years may become the the presumption is so strong that, unless very clearly
occasion of litigation, vexing and harassing those who in confined within other limits by the terms of the grant, the
good faith had bought the land without the strips and title of each owner of lands bordering on a fresh water or
had supposed themselves secure from such nonnavigable river will be considered as extending to the
embarrassment. thread in its middle.
Appellants insist, however, that the iron stake, willow The courts in many states have recognized a distinction
tree, and high water mark were monuments recognized between monuments called for as locating boundaries on
by the parties as such, and that consequently appellees' land and boundaries along watercourses, in that it is not
north boundary is governed and determined by such always practicable to locate monuments in the channels
monuments and not by the northwest corner of the of rivers. Accordingly the rule has been established that
southeast fractional quarter of said section 12. there is no presumption that monuments mentioned in a
Under the principle that where some particulars of the deed as occupying the bank of a river are intended by the
description in a deed do not agree, those which are un- parties as being exactly located and as standing at the
certain and more liable to error and mistake must be water's edge.
governed by those which are more certain.
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Ralph and Margaret Bath and John and Nancy Courts are
Instead the monuments may be referred to as merely
neighbors owning adjacent land on the shore of Nyona
indicating the location of lines which intersect the
Lake. The Courts maintained a pier which extended out
stream, and which should be continued beyond the
from their own property. Because the Courts wanted to
monument to the water's edge. Therefore although a
build a platform at the end of their pier without
boundary is said to run along a stream, and monuments
interfering with the public pier, they angled their pier
are mentioned which occupy its bank, this does not
away from the public pier to cross the Baths' shorefront
necessarily limit the grant to the bank, and the running
property.
of a boundary line by courses and distances along the
bank of a river will not prevent the water from being the On appeal the Baths contend that their boundaries
boundary in accordance with the general rules regulating extend to the middle of Lake Nyona allowing them to
boundary lines on navigable and nonnavigable rivers. maintain their pier and requiring the Courts to remove
their pier from the Baths' property.
A riparian owner acquires his rights to the water from his Riparian rights to accretion support this determination
fee title to the shoreland. Brown v. Heidersbach (1977), that the onshore boundaries extend out into the lake at
172 Ind.App. 434, 440, 360 N.E.2d 614, 619. The land a right angle.
conveyances to the Baths and to the Courts indicate that Accretion, the increase in land caused by earth, sand, or
they own the shoreland contiguous to their onshore sediment deposits, generates a source of title which
boundaries. usually vests in the riparian owner of the land to which
According to the Indiana Supreme Court, a shoreline the alluvion attaches. Longabaugh v. Johnson (1975),
boundary vests title in the landowner to the middle of 163 Ind.App. 108, 110, 321 N.E.2d 865, 867.
the stream. Brophy v. Richeson (1893) If Lake Nyona were to naturally recede, title to the new
It is undisputed that the Baths' and the Courts' lots both land would vest in the riparian owners by the extension
extend to the shoreline of the lake. Therefore, the Baths of his shore boundaries.
and the Courts have riparian rights to their property
fronting Lake Nyona.
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Even though we are willing to extend the onshore Unless the deed revealed a contrary intention, riparian
boundaries, we are not willing to extend them to the rights were extended from the shoreline to the middle of
middle of Lake Nyona. Early Indiana courts recognized the riverbed because the courts thought it unlikely that a
that riparian rights included ownership to the middle of grantor would retain the strip of land under the water
the stream or river. Ross v. Faust (1876), 54 Ind. 471, which would be of no practical value to him in the
476-77; Brophy, supra at 121, 36 N.E. at 425; Sanders, absence of access and which could be a source of
supra at 95, 191 N.E. at 333; Brown, supra at 440, 444, litigation.
360 N.E.2d at 619; Patton Park v. Pollak (1944), 115
Ind.App. 32, 40, 55 N.E.2d 328, 331.
However, the Indiana Supreme Court held that [HN4] an Indiana courts have failed to clearly define "navigable."
enclosed lake, like Lake Nyona, bordered by various The most recited definition is that navigability in law is
riparian lot owners, is not navigable and is not subject to navigability in fact. State v. Kivett (1950), 228 Ind. 623,
the rule that the riparian owner holds title from his 629, 95 N.E.2d 145, 149.
shoreline to the middle of the lake. Stoner v. Rice (1889), Although it would be desirous to define "navigable" lakes
121 Ind. 51, 53-4, 22 N.E. 968, 969. and even though many states have found a lake to be
The Court explained that such application of this rule to "navigable" because it is used for recreation, our
lakes would exclude some owners from title to any of statutory law renders such a determination unnecessary.
the waterbed.
In the early court decisions, determinations of riparian
rights depended to a great extent upon whether the lake
was navigable or non-navigable.
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"13-2-11-1 [27-654]. Freshwater lakes -- Authority of The public and other riparian owners have the right to
state to control for public enjoyment. -- The state of use Lake Nyona. These rights can co-exist only if the
Indiana is hereby vested with full power and control of riparian right to build a pier is limited by the rights of
all of the public freshwater lakes in the state of Indiana the public and of other riparian owners. Therefore,
both meandered and unmeandered and the state of riparian owners may build a pier within the extension of
Indiana shall hold and control all of said lakes in trust for his shore boundaries only so far out as not to interfere
the use of all of its citizens for fishing, boating, with the use of the lake by others.
swimming, the storage of water to maintain water levels,
and for any purposes for which said lakes are ordinarily
used and adapted, and no person owning lands
bordering any such lakes shall have the exclusive right
to the use of waters of any such lake or any part thereof.
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A riparian owner acquires his rights to the water from his Determinations of riparian rights generally turn upon
fee title to the shore land. Brown v. Heidersbach (1977), whether a lake is navigable or nonnavigable. See Bath v.
Ind.App., 172 Ind. App. 434, 360 N.E.2d 614, 619. Courts, 459 N.E.2d 72, 75 (Ind. Ct. App. 1984) .
When the intent of the parties is not expressed in the While Indiana courts have not clearly defined "navigable",
deeds, a strong presumption arises that "unless a the courts have provided some guidelines concerning
contrary intention appears or is clearly inferable from the nonnavigable lakes.
terms of the deed of conveyance, the grantee of land A lake is nonnavigable when it is enclosed and bordered
bounded by a nonnavigable stream, river, lake, or pond by riparian landowners. (citing Stoner v. Rice, 121 Ind.
acquires title [from the onshore boundaries] to the 51, 22 N.E. 968 (1889)).
thread or center of the water...." Earhart v. Rosenwinkel
(1940), Ind.App., 108 Ind. App. 281, 25 N.E.2d 268, 272.
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In the present case, there is no dispute that Dead Lake is In determining whether a body of water is "navigable," a
nonnavigable. Dead lake is enclosed by the property of number of courts have applied the definition first
two landowners, Berger and the Estes. Upon finding that articulated in The Daniel Ball, 77 U.S. 557, 19 L. Ed. 999
Dead Lake is nonnavigable, we now determine the (1870). In that case pertaining to the navigability of a
appropriate riparian rights. river, the court stated:
It is well established that the owner of land, upon which Those rivers must be regarded as public navigable rivers
there is located a nonnavigable lake, owns and has the in law which are navigable in fact. And they are navigable
right to control the surface of the lake. in fact when they are used or are susceptible of being
When a nonnavigable lake covers the property of more used in their ordinary condition, as highways for
than one landowner, "each owner has the right to the free commerce, over which trade and travel are or may be
and unmolested use and control over his portion of the conducted in the customary modes of trade and travel on
lake bed and water thereunder for boating and fishing." water.
And they constitute navigable waters of the United States The key consideration is whether any commercial vessels
within the meaning of Congress, in contradistinction could proceed from the aforementioned area into Trail
from the navigable waters of the States, when they form Creek and then into Lake Michigan. The only evidence in
in their ordinary condition by themselves, or by uniting the record is that no vessels engaged in interstate
with other waters, a continued highway over which commerce can pass through the opening into Trail Creek.
commerce is or may be carried on with other States or The opening is too narrow, and the water is too shallow
foreign countries in the customary modes in which such (2 1/2 feet), to allow such passage.
commerce is conducted by water. As the trial court concluded, "due to the conditions of
this body of water and the inability to gain access to Trail
Creek or beyond, the portion of water at issue would be
incapable of allowing passage of any vessels designed for
commerce."
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The Plaintiffs point to the United States Coast Guard's For instance, the term "navigability" has been used to
exercise of authority over the Blue Chip casino boat as define four separate and distinct concepts: (1) the
additional evidence that the casino boat is connected delineation of the boundaries of navigational servitudes;
with navigable waters. The Plaintiffs reason that there (2) the scope of Congress' regulatory authority under the
must be Jones Act jurisdiction because the Coast Guard's Commerce Clause; (3) the extent of the authority of the
authority is limited to "navigable" waters. Army Corps of Engineers under the Rivers and Harbors
The interchangeable terms "navigable" and "navigability" Appropriation Act of 1899; and (4) the limits of
do not have a fixed meaning, and it is important to jurisdiction of the federal courts conferred by the United
ascertain the purpose for which the terms are being States Constitution.
used. "Navigability" under the Commerce Clause is broader
than the same concept under general admiralty
jurisdiction.
While Commerce Clause jurisdiction is not affected by the The definition of "navigable waters" for Coast Guard
construction of man-made obstacles upon a previously jurisdiction refers to waters that "are or have been used,
navigable body of water, the construction of such or are or have been susceptible for use, by themselves or
obstacles that eliminate commercial maritime activity in connection with other waters, as highways for
also eliminate general admiralty jurisdiction. substantial interstate or foreign commerce,
notwithstanding natural or man-made obstructions that
require portage . . . ." 33 CFR § 1.05-25.
This definition is broader than the definition of general
admiralty jurisdiction under the Jones Act, and the Coast
Guard may exercise its authority even though the waters
related to Blue Chip's casino boat are non-navigable
under the Jones Act.
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Article III, section 2 of the United States Constitution The first issue to determine is whether the Wabash River,
provides that "the judicial power shall extend ... to all which is where the incident occurred, is a navigable
cases of admiralty and maritime jurisdiction." waterway of the United States and thus subject to this
In order to invoke admiralty jurisdiction, a Court must Court's admiralty jurisdiction. In Weaver v. Hollywood
find that (1) the incident occurred on the navigable Casino-Aurora, Inc., 255 F.3d 379, 382 (7th Cir. 2001),
waters of the United States, (2) the incident posed a the Seventh Circuit cited The Daniel Ball, test for
potential hazard to maritime commerce, and (3) the navigability…
activity engaged in was substantially related to traditional The Petitioner, Lisa M. Strahle, contends that Mr. Hay's
maritime activity. Guide Book conclusively establishes the navigability of
the Wabash River from West Lafayette, Indiana to its
junction with the Ohio river.
The Respondents' reliance on Mr. Hay's Guide Book, does The Petitioner illustrated that in the 1980's the Natural
establish that a boat can make an interstate trip from Resource Commission ("NRC") engaged in extensive
Lafayette to the Ohio River. Furthermore, the dams research to identify those Indiana waters declared
referred to in the Guide Book by Respondents are navigable by a court, the legislature, or an administrative
irrelevant due to the fact that they are upstream from agency. According to Mr. Lucas, the Director of the NRC,
where the incident occurred. There is no evidence of the research applicable to the Wabash River was
dams or obstructions which would hinder a small craft consistent with a determination that the river is navigable.
within the vicinity of where the alleged incident occurred.
However, this is not proof that the Wabash River is used
as a highway for commerce establishing admiralty
jurisdiction.
It is irrelevant that the body of water is capable of
supporting non-commercial maritime activity.
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The NRC definition of "navigability" provides: The Petitioner also contends that the United States Army
(a) "Navigable" means a waterway that has been declared Corps of Engineers has concluded that the Wabash River
to be navigable or a public highway by one (1) or more of is a navigable waterway of the United States.
the following: The Respondents again argue that there is no reasonable
(1) A court relation between its definition of navigability and the
(2) The Indiana General Assembly definition relevant for the invocation of admiralty
jurisdiction.
(3) The United States Army Corps of Engineers
Evidence that Army Corps of Engineers considered river
(4) The Federal Energy Regulatory Commission
and lake navigable waters of the United States, though
(5) A board of county commissioners under IC 14-29-1-2 not controlling, was significant in determining
(6) The commission following a completed proceeding navigability…
underIC 4-21.5-1-1.
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