9/26/2015

Indiana Presentation
© 2016 all rights reserved
Kristopher M. Kline, P.L.S., G.S.I.
[email protected]


(3) rights of the public to use a waterway without
ownership (floating, swimming, etc.).
Federal law governs the first and second. But
federal cases in later years have looked
beyond boat navigation to evidence such as use of
the waterway for transport of timber.






When one thinks about ownership of property along
waterways, one may break down the impact of
"navigability" in three separate categories: Great
clarification here.
(1) ownership of the bed of the waterway and
geographic extent of the lands subject to the public
trust easement;
(2) the extent of federal regulatory jurisdiction (federal
Commerce Clause jurisdiction);
To build a true understanding of the rights associated
with watercourses, it is essential to dispel three
erroneous concepts often associated with riparian
boundary problems.
1. There are more than two categories of waterways;
some waters may be navigable to a limited degree.
2. No single definition of “navigable” applies in all
circumstances.
3. Definitions created by the U.S. Army Corps of
Engineers (U.S.A.C.E.) or other regulatory parameters
have no applicability when determining property
ownership.
1
9/26/2015






At a very early period, even during our colonial
condition, the citizens of different parts of the country
were greatly harassed by the interfering regulations of
the local governments.
A difficult controversy once existed on this subject,
between Connecticut and Massachusetts.
The former state commanded the mouth of the
Connecticut river, and imposed duties on boats from
Massachusetts.
And Massachusetts, in retaliation, laid an impost on all
commodities exported to or from Connecticut.


Two centuries ago, surveyors from Georgia and
Tennessee marched through the region's mountains
and hollows to mark the official border between the
two states. They were supposed to follow the 35th
parallel, according to an agreement approved in
1802 by Congress…
That has led to years of water wars between Georgia
and Tennessee, as the Peach state's population has
exploded, out-stripping its water supply…
The conclusion to which I have come is, that the
clause in the ordinances contains a limitation on the
power of the general government, as well as a
prohibition to the states. Or if it is not divisible into
two distinct parts, that then it contains throughout a
prohibition to the states;
that this prohibition restrains these states from
passing laws which should have the effect of
regulating its commerce with other states, or from
imposing discriminating duties on the citizens of
other states, but does not prevent them from
legislating concerning rivers which run exclusively
within their own limits…
2
9/26/2015






Cox was indicted for obstructing the west branch of
White river. The indictment contains two counts. The
first count charges that Cox, with force and arms, did
erect and keep up a certain mill-dam,…
The second count charges that the said Cox, with force
and arms, did erect and keep up a certain other milldam, of the height of three feet, across the main channel
of the stream,
and that said mill-dam is calculated to destroy, injure,
and obstruct the navigation, said river being a public
highway…
The acts of congress of the 18th of May, 1817, 3d of
March, 1803, and 26th of March, 1804, establish that
… the navigable rivers and streams, through the domain
of the United States, shall be and remain public
highways; …
…and that streams not navigable, having the opposite
banks owned by different persons, shall have their beds
and waters common to both.





By the latter clause of the said 4th article of said
ordinance of congress of the 13th of July, 1787, it is
ordained, …
…that the navigable waters of the territory north-west of
the river Ohio, leading into the Mississippi and St.
Lawrence, shall be common highways, and be forever
free, as well to the inhabitants of said territory as to the
citizens of the United States, and those of other states
that may be admitted into the confederacy,
The act of congress of the 19th of April, 1816, is the act
enabling the people of the Indiana Territory to form a
constitution and state government, and the proviso to
the 4th section declares, that the articles of the
ordinance of the 13th of July, 1787, are irrevocable,
…and that the constitution and state government of the
territory, when formed, should not be repugnant to
those articles; …
…and the ordinance of Indiana of the 29th of June,
1816, accepts the propositions and conditions of that
act of congress.
3
9/26/2015




The next point presented for the consideration of the
Court is, that Cox being the owner of the banks of the
river, is by the common law, the owner of the river, and
has a right to occupy and use it, in any way or manner
he pleases, for his own benefit.
As to the treatise of Sir Matthew Hale De Jure Maris, we
can only say, that in that treatise the learning concerning
public property in the sea and rivers is exhausted, and
that all the common law on the subject is collected, but
we cannot perceive that it sustains the plaintiff in error
in this case.
The principles of the common law have been recognized
in eight or ten of the states, but in several others the
principles of the civil law, to a very considerable extent,
have been adopted.
In this state, neither the principles of the common or civil
law have as yet received any judicial sanction. The case
now before us does not require us to pursue those
easements and aquatic rights any further



At common law there are two classes of navigable
streams,-1. navigable streams in which the tide ebbs and flows; on
these, the rights of the bank owners extend only to highwater mark. The bank below high-water mark, and the
whole bed of the stream, belong exclusively to the public.
2. navigable streams where the tide does not ebb and
flow; on these, the bank proprietors have right and title to
the centre of the stream, as they have in the soil on which
a public highway on land runs, but the public have a right
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,



1. That as neither the territorial or state legislature had
ever declared Eel river navigable, the plaintiff was not
entitled to recover.
This charge was properly refused by the Court. The
navigableness of Eel river was one of the facts put in
issue by the pleadings, and its existence was correctly
left to the jury upon the evidence before them.
Nature is competent, we should imagine, to make a
navigable river without the help of the legislature.
4
9/26/2015


On the trial, the plaintiff asked the Court to instruct the
jury--That where lands are bounded by the Ohio river on
the Indiana side, the owner's right extends to low-water
mark. This instruction was refused. The record shows
that the instruction was applicable to the evidence in the
cause.
We think that the instruction ought to have been given.
The proprietors of land situated in this state, and
bounded on one side by the Ohio river, must be
considered as owning the soil to the ordinary low-water
mark.


Virginia only granted the territory on the northern
bank of the river to low-water mark, although, by the
compact of 1792, between Virginia and Kentucky, a
concurrent jurisdiction over the river is accorded to
Ohio and Kentucky.
The Ohio is a navigable river; it would be so
considered, even if it were not expressly declared to
be such by the deed of cession.

The state of Virginia, being the proprietor of the lands on
both sides of the river, ceded to the United States her
right to the territory "situate, lying, and being, to the
north-west of the river Ohio." It is decided that, under
this grant, the ordinary low-water mark of the river, is
the boundary of the territory granted. Handly's Lessee v.
Anthony, 18 U.S. 374, 5 Wheat. 374, 5 L. Ed. 113.



And we are of opinion that when the United States, or any
of her grantees, convey any of this land situate on the
river, in Indiana, without a special contract to the
contrary, the same mark must be considered as the
boundary of the grant.
Located on the banks of the Ohio River in Clarksville,
Indiana at I-65, exit 0, is the Falls of the Ohio State
Park. The 390-million-year-old fossil beds are among
the largest, naturally exposed, Devonian fossil beds in
the world. …
The "Falls" was originally a series of rapids allowing
the Ohio River to drop 26 feet over a distance of two
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.
5
9/26/2015


As navigation and commerce expanded on the Ohio
River, the need for controlling the depth and flow of
the river increased. To circumvent the dangerous
rapids at the Falls of the Ohio, the Portland canal with
locks was dug over several years and completed in
1830. Over the years, it was enlarged to handle
bigger steamboats.
The first dam on the Ohio River was constructed
beginning in 1868. Due to frequent interruptions by high
water and runaway barges, the dam was not completed
until 1881.





In this place the river runs over a rocky bottom, and
the descent is so gradual, that the fall does not
probably in the whole exceed twenty feet. In some
places we may observe it to fall a few feet.
When the stream is low, empty boats only can pass
and repass the rapid; their lading must be transported
by land; but when high, boats of any burthen may
pass.
Excepting this place, there is not a finer river in the
world for navigation of boats.


The beautiful river Ohio, bounds Kentucke in its whole
length, being a mile and sometimes less in breadth,
and is sufficient to carry boats of great burthen. Its
general course is south 60 degrees west; and in its
course it receives numbers of large and small rivers,
which pay tribute to its glory. The only disadvantage
this fine river has, is a rapid, one mile and a half long,
and one mile and a quarter broad, called the Falls of
Ohio.
said defendants did erect, maintain, and keep up a
certain bridge which was a nuisance to the free
navigation of the …
…St. Joseph river, a navigable stream running within the
territories of the states of Indiana and Michigan, whereby
said navigation was endangered; and that afterwards a…
…boat of the plaintiffs, laden with a large quantity of
flour, while passing at and by said bridge, unavoidably,
and notwithstanding all reasonable care and diligence
was used by the plaintiffs' servants to steer said boat in
safety under and beyond the bridge, was stove against
the timbers thereof,
6
9/26/2015






The plaintiffs had and have a right to navigate the St.
Joseph river with any craft which the character of the
river did or does admit, without regard to the bridge
mentioned in the declaration…
…if that bridge impeded the navigation, or if the general
and public advantages arising from its erection did not
greatly exceed any slight inconvenience arising
therefrom…
The erection of the bridge, if it impeded or endangered
the navigation, is a public nuisance, unless the general
and public advantages arising therefrom exceed its
inconvenience in the manner above stated
1. All the bays and inlets on our coast, where the tide
from the sea ebbs and flows, …
…and all other waters, whether sounds, rivers or creeks,
which can be navigated by sea vessels, are called
navigable, in a technical sense, are altogether publici
juris, and the soil under them, cannot be entered, and a
grant taken for it, under the entry law.
Where the tide ebbs and flows the shore, between the
high and low water, is also within the prohibition of
private appropriation,





Every public road is equally a public highway, and, in this
respect, no distinction can be drawn between the right to
pass up and down and across the river in the one
instance, or along or across the road in the other.
In declaring the navigable streams of the north-western
territory public highways, and providing that, as such
highways, they should forever remain free to all the
inhabitants of the United States, without payment of
taxes or imposts, it could not have been the intention of
the framers of the ordinance to prohibit the making of
such improvements as might be demanded by the public
interest,
2. All the rivers, creeks, and other water courses, not
embraced in the above description, …
…but which are, in fact, sufficiently wide and deep to
be navigable by boats, flats and rafts, are technically
styled unnavigable, …
…and are open to be appropriated by individuals, by
grants from the State, under the entry laws.
7
9/26/2015

3. All the rivulets, brooks and other streams, which,
from any cause, cannot be used for intermunication
by inland navigation, are entirely the subjects of
private ownership, are generally included in the
grants of the soil, and the owners may make what
use of them they think proper, whether it be for
fishing, milling or other lawful trade or business.



Fresh rivers, of what kind soever, do of common
right, belong to the owners of the soil adjacent, so
that the owners of one side, have of common right
the propriety of the soil, and consequently the
right of fishing usque ad filum aquae; and the
owners of the other side, the right of soil or
ownership and fishing unto the filum aquae, on
their side;
and if a man be owner of the land on both sides, in
common presumption, he is owner of the whole
river, and hath the right of fishing, according to the
extent of his land



It is sometimes difficult to determine what is the
precise character of a stream. Rivers were once
divided into navigable and not navigable.
They are now generally divided into three classes, the
two former, and a third partaking of the character of
each of the others, and yet distinguishable from both.
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.


At the Common Law, then, we see that some rivers
were public, some private; and of those considered
private, that some were subject to the servitude of
the public interest, and in that sense common
highways by water.
The mark of distinction between those which are
entirely private property, and those which are
subject to the public use and enjoyment, consists
in the fact, whether or not they can be used as a
common passage for the public.
(quoting: Lord Hale's Tract De Jure Maris)
8
9/26/2015
…filed against Neaderhouser, the appellant, charging him
with keeping and maintaining a public nuisance, at said
county, by keeping and maintaining a mill-dam across
the Wabash river therein.
The court charged the jury, if they found from the
evidence that the Wabash is of that class of streams
which are navigable in fact for vessels coming out of and
returning to the navigable waters of other States, by
continuous voyages, that they need proceed no further in
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
southern boundary of the State, and the Wabash, for some
distance above its confluence with the Ohio, are navigable
for vessels freighted with commerce, and that they are
used as commercial highways in the trade and commerce
between different States. But, as to the Wabash, this
historic character ceases far below the county of Adams,
and the evidence in the case leaves no pretext for claiming
for its navigation in that county a national character.
Nor is such a character claimed for it in the information,
which only alleges that it is navigable in and through
Adams county, "for canoes, pirogues, rafts and small
watercraft."




The complaint alleges that the Wabash river, which
passes through the county of Adams, has always been a
navigable stream in and through said county, for canoes,
pirogues, rafts and small water-craft, and that prior to
the keeping and maintaining a mill-dam across said
stream, by the defendant, Neaderhouser, the citizens of
said county and the public generally, "rowed, steered and
propelled their canoes, pirogues, rafts and other watercraft, up and down said river,
A stream cannot be said to be navigable, in the legal sense
of that term, unless it be of such a character as to be
useful to the public as a channel of trade or commerce.
In Ledyard v. Ten Eyck, 36 Barb. 102 , it was held that
Cazenovia Lake, which is five miles in length and threefourths of a mile wide, was not a navigable water.
Campbell, J., said: "It is not, in the language of Lord Hale, a
highway for man or goods, or both, from one inland town
to another. It is too small to be of any practical use in
navigation."
9
9/26/2015







The inquiry that meets us at the threshold is, what are
the rights of the navigator of this river, to the use of its
banks and margins?
The Ohio river is a great navigable highway between
states, and the public have all the rights that by law
appertain to public rivers as against the riparian owner.
But there is no "shore," in the legal sense of that term;
that is, a margin between high and low tide--the title to
which is common.
The banks belong to the riparian owner, and he owns an
absolute fee down to low water mark.
The court knows judicially, as matter of fact, that White
River, in Marion County, Indiana, is neither a navigated nor
a navigable river and it follows, …
…of course, that by the express enactment of Congress,
the title of its riparian proprietors extends to the thread of
the stream notwithstanding the bed of the stream was not
surveyed by the United States surveyor, nor, in terms, sold
to purchasers of the bordering lands.
Ross v. Faust, 54 Ind. 471, 1876




The Ohio river is a great highway between states under
national sanction, yet we suppose that it would not be in
conflict with the authority of the general government for
this state, within her territorial limits, to provide for and
regulate by law public landing places along its shore for
the benefit of trade and commerce, and, for this
purpose, to exercise the right of eminent domain.
The right to the use of the river as a highway for passage
is distinct from the right to land for the purpose of
receiving and discharging freight and passengers. The
former is secured to the public; the latter must be
exercised with reference to the rights of the riparian
owner.
"All that portion of the south-west quarter of section 17,
in township 22 north, range 6 west of the second
principal meridian, which lies in said county of Warren,
and north of the Wabash river
As has been seen, the Wabash river, a navigable stream,
the bed of which has neither been surveyed nor sold,
runs through this section, and cuts three of its quarter
sections into fractional parts.
10
9/26/2015
"All navigable rivers, creeks and waters, within the
Indiana territory, shall be deemed to be and remain
public highways." It must follow from this act of
congress, that so much of the Wabash river as was in fact
navigable in 1804, must be held navigable now, and is to
remain a "public highway." In the Western Gazetteer for
1817, p. 39, the Wabash river was said to be navigable
for keel boats for 400 miles from its mouth; and at page
73, it was said that it was navigable for 470 miles. In
1819 there was a reprint of the Gazetteer in Ireland, and
at pages 40 and 75 the same statements are made. In the
Indiana Gazetteer published in Indianapolis in 1850, at
page 21, it was stated, that the Wabash river was
navigable for 450 miles.



The cases show, what it is difficult for the human mind to
resist, that the parties never mean to leave a narrow strip
between the land and the river, merely because some stake
or tree, or even all the stakes or trees of the line, stand at
a slight distance from the river.
The expression of an intent to run the line along the
stream, reaches a distinct natural monument which
overcomes the others. That the fact that the marked corner
called for stands four rods from the water, does not create
any ambiguity in the terms, down the creek with the
several meanders thereof. They import the water's edge at
low water, which is a decided natural boundary, and must
control a call for corner trees on the bank.


…I would still find it highly unlikely that an owner of
bayfront lots would convey them without including the
waterway rights. Such a step, although possible, would
be extraordinary.
Given the ambiguity in the deed, my reaction as a fact
finder is to select the interpretation which I believe to be
the most consistent with common sense. In this case,
common sense supports the conclusion that Heritage did
not intend to retain the riparian rights and/or the
waterway. Thus, although the metes and bounds
description fails to reference it, when the deed is read as
a whole and in light of the surrounding circumstances, it
can and should be read to include the waterway.

"Running to a monument standing on the bank and
from thence running by the river or along the river,
etc., does not restrict the grant to the bank of the
stream; for the monuments in such cases are only
referred to as giving the directions of the lines to the
river, and not as restricting the boundary on the river.
11
9/26/2015


If the grantor, however, after giving the line to the
river, bounds his land by the bank of the river, or
describes the line as running along the bank of the
river, or bounds it upon the margin of the river, he
shows that he does consider the whole alveus of the
stream a mere mathematical line, so as to carry his
grant to the middle of the river, and it appears to me
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
as another, not only in the eye of the law, but of common
sense and reason. Within the first maxim it is said, one
shall not build so as to overhang another's premises,
darken his lights, or confine the air; and surely it would be
more absurd for the law to give a man the shore or side of
a fresh-water river; and yet, by saving the bed to the
grantor, make the owner of the land a trespasser, every
time he should slake his thirst or wash his hands in the
stream.

Upon construction of law, which does not require express
words for the grant of every part, as houses, fences, mines,
or the elements of water or air, which all pass by the word
"land;" and, as a grant of land by certain boundaries, prima
facie passes all such parts to the grantee, usque ad caelum
et ad infernos; so, within the same principle, it passes the
adjoining fresh-water stream, usque ad filum aquae.


The land in dispute lies wholly within the boundary
lines of what is designated on the government survey
as "Kankakee River", and represents only that territory
necessary to, and which does in fact complete the
fractional sections and subdivisions thereof designated
and indicated on said plat as surveyed and as being
bounded by the meander line of such river.
In other words, the fractional sections bounded by the
meander lines of the territory designated on such plat
as "Kankakee River" are made fractional by reason of
the meandering of such river;
12
9/26/2015


This being an action by the State to quiet its title to the
lands in controversy, the burden is on it to prove that it
had title when it began this action.
Under the great weight of authority the question,
whether title to land which was once the property of the
United States government has passed from it, wherever
presented, whether in a state or Federal court, must be
determined by the laws of the United States.





If the meander line, in fact, merely marked the boundary
between surveyed and unsurveyed territory, it seems
that under the weight of authority, the doctrine of
riparian ownership would have no application, but the
purchaser of the surveyed territory would be limited to
that included within the survey.
The rule in favor of natural monuments as against other
calls in a survey is universal.


There is, however, another rule of law which is
recognized by both appellant and appellees, and on
which appellees insist that both the State's title and their
title may be upheld--viz., the doctrine of "riparian
ownership".
Under this doctrine a grant or conveyance of land
bounded by a nonnavigable stream carries with it the
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
Generally speaking, "meander lines are run in surveying
fractional portions of the public lands bordering on
navigable rivers, not as boundaries of the tract, but for
the purpose of defining the sinuosities of the banks of
the stream, and as the means of ascertaining the
quantity of the land in the fraction subject to sale, and
which is to be paid for by the purchaser. * * *
Proprietors bordering on streams not navigable, unless
restricted by the terms of their grant, hold to the center
of the stream."
13
9/26/2015






"The second section of the Act of Congress of 1796
provides that navigable rivers shall not be included in
public surveys; but does not indicate what shall be
considered such; and …
…it is left to the discretion of the surveyor to include a
given river or not.
But of course his decision can not be conclusive."
While a meander line may be and frequently is treated as
a boundary line yet this is done only when it appears
that it was the intent of the parties to the instrument of
conveyance, that it should be so treated.
We next inquire whether the State has parted with its
title to this land.
The important and influential reason for the existence of
the rule which gives a natural monument favor over
other calls in a survey is because it is presumed to be
the intention of the parties to the grant to convey the
lands actually surveyed, and natural monuments when
called for are supposed to include and bound the lands
so surveyed and the presumption is that such
monuments are less likely to be mistaken than are other
calls in the survey.



In the instant case no such intent appears, as between
the government and the State. On the contrary, the facts
all justify, if they do not compel, the inference that the
stream and not the meander line should be treated as
the boundary. We say this because it appears from the
Act of Congress pursuant to which the patent of the
United States government was issued, and to which
reference was had in the patent, that it was the purpose
and intent of Congress "that all the 'swamp and
overflowed lands' made unfit thereby for cultivation
within the State of Indiana which remained unsold at the
passage of said act shall be granted to said State."
We have already indicated in this opinion that we thought
it was the clear intent of the government to pass and the
State to accept all the swamp lands in the State and, to
accomplish that purpose, we concluded that, as between
the government and the State, it was the duty of the court
to treat the watercourse meander line as the true boundary
of the lands selected by the State under such Swamp Land
Act.
We now inquire, What was the intent between the State and
its patentees as shown by the patents and by the act of the
legislature pursuant to which such patents were issued
14
9/26/2015


The bed of the lake was not in a condition to be sold, and
hence they had no authority to dispose of it directly or
indirectly.
To grant the contention of appellee would be to hold that a
grantee from the State of a forty-acre tract of overflowed
and swamp land, bordering upon a lake four miles in
width, would take by the State's deed, not only the forty
acres, but in addition a strip of land as wide as the fortyacre tract and two miles long.


"The limit of the boundary in the direction of the river,
by an intervening street, prevents the proprietor from
claiming the alluvion.
'It is not then,' …'the existence of the road or causeway
which deprives the owner of the alluvion, but it is the
fact that the road or causeway is the boundary of the
land.'"




Land is never appurtenant to land.
The doctrine of riparian ownership applies only where
the watercourse is in fact the boundary of the lands to
which the doctrine is sought to be applied, and …
…where there is uncertainty as to whether the meander
line or the watercourse was intended as the boundary in
determining such question reference must be had to the
conveyance to the party claiming the application of such
doctrine and to the time of such conveyance, and not to
a remote time of conveyance.
It is fundamental in the law of accretions that the land to
which they attach must be bounded by the water to
entitle its owner to such increase. In the very nature of
things, accretions depend upon actual contiguity,
without any separation of the claimant's land from the
accumulated alluvion by the lands of another, however
narrow the intervening strip may be, or whatever the size
of the claimant's tract behind it.
15
9/26/2015






"The channel of a public navigable river is properly
described as a public highway." …
"A stream may be a public highway for flotage when it is
capable, in its ordinary and natural stage in the seasons
of high water, of valuable public use....
It is a public highway by nature, but one which is such
only periodically, and while the natural condition permits
a public use....
The public right is measured by the capacity of the
stream for valuable public use in its natural condition."
"The idea is sometimes entertained that the right to
pass along a public navigable river carries with it the
right to fish in it,
…but so far as regards non-tidal rivers this is not so.
No lawyer could take that view. Persons using a
navigable highway no more acquire thereby a right to
fish there than persons passing along a public
highway on land acquire a right to shoot upon it.




At Olcott falls the public has a right of passage for logs
as free and convenient as would be afforded by the river
in its natural condition, unless the highway has been
wholly or partially discontinued by law.
…The riparian proprietors, incorporated or
unincorporated, in the exercise of their private rights,
may change the natural condition of the stream, so far
as changes are possible without an infringement of the
public right.
Some few passages may be found in the books in
which judges are reported to have said that subjects
have a right to fish in navigable rivers, just as in the
sea;
…but on investigation it always will be found that
they are referring to navigable rivers where the tide
ebbs and flows and nothing else.
16
9/26/2015



…injunction was ordered issued against appellant in
favor of appellees, commanding the removal of certain
obstructions from the St. Joseph river in the city of South
Bend, Indiana.
…said company erected a dam across the river,
purchased land along the river, built raceways, installed
water wheels, and did the other things necessary to use
the water power…
The St. Joseph river is a navigable stream but has not
been navigated since 1852, except by small boats over
certain limited portions of the stream…




The right of a riparian owner to use water power may
coexist with the public right of navigation. When a river
is navigable the right of navigation is paramount but the
riparian owner may nevertheless make such other
reasonable uses of the stream as do not materially
interfere with navigation.

However, the evidence shows and the finding states that
the St. Joseph river is a navigable stream, and while the
finding also shows that it is not extensively used for
navigation and is more generally used for other
purposes, yet the limited use made of the river for
navigation and its use for other purposes does not
change the ultimate fact that it is a navigable stream and
as such a public highway.
The obstruction of the St. Joseph river as shown by the
evidence and the finding of facts creates a public
nuisance.
Fundamentally this case involves the title to the bed of
White River in Morgan County, Indiana, about one and a
half miles upstream from the city of Martinsville, Indiana.
The appellee owned adjacent land in Morgan County,
Indiana, where he has a gravel rig or extractor through
which he operates a drag line with dredge or bucket
attached out over and into the bed of White River and has
taken, and is now taking, and threatens to continue to
take sand, stone, minerals and other substances from the
bed of White River.
17
9/26/2015





From about 1821 to about 1855, White River was used
for carrying cargoes of mess pork, prime pork, lard, ham
shoulders, bulk port, flour, corn, bacon, lumber, venison
hams, walnuts and other products from all points on
White River in Morgan County to New Orleans, Louisiana.
The flat boats ranged in size from boats 50 feet long, 12
feet wide and two feet deep with a capacity of 75,000
pounds, to boats 100 feet long, 20 feet wide, 3 1/2 feet
deep and with a carrying capacity of 400,000 pounds.
It was only during the months of February, March, April,
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
the first steamboat in operation in this country was on
the Hudson River in 1807, and that it took a number of
years for steamboats to reach remote sections of the
country, such as Indiana was at that time.
As a result, the natural and reasonable way of travel was
by flatboats and keelboats and, when such traffic is
shown to have occurred on White River, that is
tantamount to a finding that White River, at that time,
was navigable.





In addition to such downstream business, it appears that
keelboats ascended the stream via the Wabash and White
Rivers as far as Indianapolis, …
…and that at the time of the admission of the State of
Indiana into the Union, and for a long time prior thereto,
White River had been used as a highway and a mode of
travel by Indians, traders, explorers, missionaries and
early settlers, and, …
…in 1831, two steamboats reached Indianapolis via White
River, one of which towed a loaded barge.
So it seems that the correct test for determining the
navigability of White River is whether or not it was
susceptible and available for such use when the State was
admitted to the union and it, therefore, is not material if
upstream traffic offered difficulties. The true test seems
to be the capacity of the stream, rather than the manner
or extent of use.
In Ross v. Faust, supra, this court held that it had judicial
knowledge of the fact that White River in Marion County,
Indiana, is neither a navigated nor navigable river.
18
9/26/2015






This court held in Indianapolis Water Co. v. Kingan & Co.,
supra, that …White River runs through Marion County
and is not navigable and that the title should pass, to the
thread of a stream…
And it is true that all those cases decided was that White
River is not or was not at the time of said decision a
navigable stream.
None of those cases involved land in Morgan County.
The owners of lands situate on the banks of freshwater navigable streams are owners of the beds of the
rivers to the middle of the stream, as at common law.
In the United States, the great navigable lakes are
properly regarded as public property, and not
susceptible of private property any more than the sea.
A grant giving the ocean or a bay as the boundary, by
the common law, carries it down to ordinary highwater mark. The usual high-water mark is the
boundary on the sea, and not the highest or lowest
point to which it rises or recedes.




It is our conclusion that none of those cases had in them
sufficient facts to be able to adjudicate the navigability of
White River in 1816, and that, therefore, none of those
cases is pertinent here.
As between the parties and proprietors they are binding,
but as between the State of Indiana and those parties
they are not binding. We are not disposed to follow them.
The right of fishing in Lake Erie and its bays, is not
limited to the proprietors of the shores; and the right of
fishing in these waters is as public as if they were
subject to the ebb and flow of the tide.
Where no question arises in regard to the right of a
riparian owner to build out beyond his strict boundary
line, for the purpose of affording such convenient
wharves and landing places in aid of commerce as do
not obstruct navigation, the boundary of land, in a
conveyance calling for Lake Erie and Sandusky bay,
extends to the line at which the water usually stands
when free from disturbing causes.
19
9/26/2015

The water's edge provides a readily discernible
boundary for both the public and littoral
landowners. The waters and submerged bed of
Lake Erie when under such waters is controlled by
the state and held in public trust, while the littoral
owner takes fee only to the water's edge.




Subsequent to our decision in Sloan, in State v. Cleveland
& Pittsburgh RR. Co. (1916), 94 Ohio St. 61, 79, 113 N.E.
677, we held that "the state holds the title to the
subaqueous land [of Lake Erie within the boundaries of
Ohio] as trustee for the protection of public rights."
In so holding, we followed our decision in Sloan, among
other cases, and concluded that "[t]he littoral owner is
entitled to access to navigable water on the front of
which his land lies, and, subject to regulation and
control by the federal and state governments,



More than 130 years ago, in Sloan v. Biemiller (1878), 34
Ohio St. 492, we determined that when a real estate
conveyance calls for Lake Erie as the boundary, the
littoral owner's property interest "extends to the line at
which the water usually stands when free from
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").
The National Resources Commission ("NRC") conducted a
meeting on November 15, 2011. According to the
meeting minutes, IDNR's chief legal counsel presented
information with respect to the shoreline along Lake
Michigan. The meeting minutes state:
[Counsel for IDNR] said there has not been a legal
determination of what is the upper limit of the bed of
Lake Michigan. In 1995, the Lakes Preservation Act
established an elevation of 581.5 feet as the ordinary
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."
20
9/26/2015




…involves the title to the bed of a fresh-water lake,
situated in the north half of section 8, in township 36
north, of range 1 west, in LaPorte county. This question
arises on demurrer to the appellee's answer to the
complaint. The lake is not navigable.
The appellant owns these three lots, viz., lots 1, 3 and 4,
deriving his title by mesne conveyances from the United
States, prior to 1884, and by virtue of such conveyances
and ownership claims to own and have the title to the
land beneath the waters of the lake.
It is contended that the riparian owner bordering on a
non-navigable lake, like a river, takes to the thread or
center of the lake. This rule is impracticable when
applied to lakes.
Where the body of water is a running stream, being a
narrow rivulet at its head and growing larger and
widening until it enters into another stream still larger;
or where it is a long, narrow body of water, there is no
trouble in applying this doctrine;


The conclusion we have arrived at is, that the owner of
lands bordering on non-navigable inland lakes, such as the
one described in this case, …when the subdivisions of the
land are surveyed by running a meander line between the
dry land and the water to ascertain the number of acres of
dry land and designating such subdivision as a fractional
quarter or a lot, giving the number of acres of dry land,…
takes the title to all the land contained within the
subdivision…
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.



The true doctrine to apply in the disposition of such land
as is covered by the body of such lakes, we think, is that
the government in making surveys…
…included in such surveys all the land within the district
surveyed, and if there was a lake or large pond which
covered a part of a subdivision it was meandered out,
and the dry land in such subdivision designated as a
fractional subdivision, or lot; …
…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
21
9/26/2015







This is an action of ejectment brought by Gertrude H.
Hardin, the plaintiff in error, to recover possession of
certain fractional sections of land lying on the west and
south sides of a small lake in Cook County, Illinois…
The lake is two or three miles in extent, and the main
question in the cause is, whether the title of the riparian
owner on such a lake extends to the centre of the lake,
or stops at the water's edge.
The court below decided that the plaintiff's title only
extended to low-water mark…
The question is of much importance, and deserves a
careful consideration.
the question is as to the effect of that title in reference
to the lake and the bed of the lake in front of the lands
actually described in the grant.
This question must be decided by some rule of law, and
no rule of law can be resorted to for the purpose except
the local law of the State of Illinois.
If the boundary of the land granted had been a freshwater river, there can be no doubt that the effect of the
grant would have been such as is given to such grants by
the law of the state, extending either to the margin or
centre of the stream, according to the rules of that law.





It will be observed that the government surveys made in
1834-5 upon which the patent was issued, not only laid
down a meander line next to the lake, but also …
…described said lines as running "along the margin of
the lake;" and the plat of the survey, returned to the
general and local land offices, and referred to in the
patent for identification of the land granted, exhibited
the granted tracts as actually bordering upon the lake;
and the lake itself on said plat was marked with the
words "Navigable lake," although the fact found by the
court is that the lake was not and is not a navigable lake,
but a non-navigable fresh-water lake or pond.
It has been the practice of the government from its
origin, in disposing of the public lands, to measure the
price to be paid for them by the quantity of upland
granted, no charge being made for the lands under the
bed of the stream, or other body of water.
The meander lines run along or near the margin of such
waters are run for the purpose of ascertaining the exact
quantity of the upland to be charged for, and not for the
purpose of limiting the title of the grantee to such
meander lines.
22
9/26/2015
It has frequently been held, both by the Federal and state
courts, that such meander lines are intended for the
purpose of bounding and abutting the lands granted upon
the waters whose margins are thus meandered; and that
the waters themselves constitute the real boundary.
Meander lines are run in surveying fractional portions of
the public lands bordering upon navigable rivers, not as
boundaries of the tract, but for the purpose of defining the
sinuosities of the banks of the stream, and as the means of
ascertaining the quantity of the land in the fraction subject
to sale, and which is to be paid for by the purchaser.





This right of the States to regulate and control the shores
of tide waters, and the land under them, is the same as
that which is exercised by the Crown in England.
In this country the same rule has been extended to our
great navigable lakes, which are treated as inland seas;
and also, in some of the States, to navigable rivers, as the
Mississippi, the Missouri, the Ohio, and, in Pennsylvania,
to all the permanent rivers of the State;
but it depends on the law of each State to what waters
and to what extent this prerogative of the State over the
lands under water shall be exercised.




This right of the States to regulate and control the shores
of tide waters, and the land under them, is the same as
that which is exercised by the Crown in England.
In this country the same rule has been extended to our
great navigable lakes, which are treated as inland seas;
and also, in some of the States, to navigable rivers, as the
Mississippi, the Missouri, the Ohio, and, in Pennsylvania,
to all the permanent rivers of the State;
but it depends on the law of each State to what waters
and to what extent this prerogative of the State over the
lands under water shall be exercised.
As was well said by the Supreme Court of Illinois in
Middleton v. Pritchard, …, "Where the government has not
reserved any right or interest that might pass by the
grant, nor done any act showing an intention of
reservation, such as platting or surveying, we must
construe its grant most favorably for the grantee, and
that it intended all that might pass by it. What will pass
then by a grant bounded by a stream of water? At
common law, this depended upon the character of the
stream, or water. If it were a navigable stream, or water,
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
23
9/26/2015



At common law, only arms of the sea, and streams where
the tide ebbs and flows, are deemed navigable. Streams
above tide water, although navigable in fact at all times,
or in freshets, were not deemed navigable in law.
To these, riparian proprietors bounded on or by the river,
could acquire exclusive ownership in the soil, water and
fishery, to the middle thread of the current; subject,
however, to the public easement of navigation.
Illinois was a portion of the Northwest Territory which
Virginia always claimed as a part of her domain until she
ceded it to the United States, and which received from
that State many of its original settlers, who regarded
Virginia as their parent State, and had a strong
attachment for its institutions and laws, and may be said
to have carried those laws with them.



That the common law is the true and only law of Illinois
on the subject of land titles, and especially as to the
rights of riparian owners, and the construction of deeds
and grants of land bounded by streams and permanent
bodies of water (except the great navigable lakes before
referred to) is so clearly shown by the statutes and by the
whole course of the decisions of the Supreme Court of
that State, that it hardly needs any argument to support
the proposition.
Except with regard to Lake Michigan, which is a navigable
lake and one of the internal seas of the country, it cannot
be pretended that the common law relating to grants of
land abutting on streams and permanent bodies of water,
and to the rights of riparian owners, are of such a local
character peculiar to England as to be inapplicable to the
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 freshwater lakes and ponds?" And on this subject we think
there can be but very little difference of opinion.
24
9/26/2015





We will only refer to a single other case, decided in Illinois
itself in 1867, Beckman v. Kreamer, 43 Illinois, 447
By the common law, a right to take fish belongs so
essentially to the right of soil in streams or bodies of
water, where the tide does not ebb and flow, that if the
riparian proprietor owns upon both sides of such stream,
no one but himself may come upon the limits of his land
and take fish there; and the same rule applies so far as
his land extends, to wit, to the thread of the stream,
where he owns upon one side only."
The Supreme Court of Michigan in a recent case ( Clute v.
Fisher, 65 Michigan, 48, since followed by Stoner v. Rice,
121 Indiana, 51) held …
…that the riparian owner of a fractional lot bounded by a
non-navigable lake only takes so much of the lake
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.




The Supreme Court of Michigan in a recent case ( Clute v.
Fisher, 65 Michigan, 48, since followed by Stoner v. Rice,
121 Indiana, 51) held …
…that the riparian owner of a fractional lot bounded by a
non-navigable lake only takes so much of the lake
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.
It was conceded, however, that if the lake were so large
that the lines of the granted sections would not embrace
the whole lake bottom, then the riparian ownership would
be extended to the centre so as to include the whole
bottom.
25
9/26/2015





Appellees claim that their deeds make them riparian
owners, and that as such they own to the center of the
lake, if not to the south line of the quarter section in
which their lands are situated.
…"it was in the power of Peter R. Vanatta, the owner of
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
Alabama is described as "beginning on the western bank
of the Chattahoochee river," "running thence up the said
river Chattahoochee and along the western bank thereof."
The Supreme Court of the United States, in the case of
Howard v. Ingersoll, 54 U.S. 381 , in defining the
boundary thus indicated, said that the words "along the
western bank thereof," limited the effect and operation of
the other words of the description, "and excluded the
bed of the river."




If a stream or highway, simply without any modifying
words, is made a boundary in a deed, and the grantor
owns the fee of such stream or highway, there is no
doubt that title is carried to the thread of the stream or
the middle of the highway.
As to streams and highways, then, the rule seems to be
that if the stream or highway, simply and without
modifying words, is named as the boundary, the title is
taken to the middle of the stream or highway, provided
the grantor's title extend so far; …
…but if the bank, or edge, or low-water mark, or highwater mark, of the stream, or the edge or line of the
highway, or other clearly defined line along the stream or
highway, is given as the boundary, then the title will not
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.
26
9/26/2015





The first deed, that to Martin V. Carney, conveys "the
west portion of the southeast quarter of section 21."
If the grantor had said "the west half," or "the west
quarter," or any other definite division of the quarter
section, there is no doubt that, under the rule in Stoner v.
Rice, …,
it would have been a conveyance of the part of the land
under the lake, as well as the dry land included in the
description.
An easement in land bordering on a body of navigable
water carries with it such riparian rights in the
submerged lands between the shore and the navigable
portion of such body of water as are appropriate and
necessary to give effect to such easement.
The portion of such submerged lands over which
riparian rights may be asserted, is as a general rule
determined between adjoining property owners by
extending lines from the water's edge at right angles to
the prevailing shore line.



But "the west portion" of the quarter section has no
definite meaning in itself, and can only be given meaning
by the particular description which follows:
"Bounded on the south by Cicott's lake, and meandering
along the water's edge eastward to a stake at the lake,
low-water mark."
It seems to us that these words plainly limit the southern
boundary to the line "along the water's edge eastward to
a stake at the lake, low-water mark."


He who owns the land on both banks of such river
owns the entire river, subject only to the easement of
navigation, and he who owns the land upon one bank
only, owns to the middle of the main channel, subject
to the same easement. The right of the public is
merely the right to use the water within the channel
for the purposes of navigation.
The proprietor of the lands upon its banks may use
the waters, of the river in any way not inconsistent
with the public easement, or of private rights, and
neither the state nor any individual has the right to
divert the water to his injury.
27
9/26/2015



The right of the adjacent proprietor to the water of
the stream is a usufructory right, appurtenant to the
freehold, not an absolute property.
Hence the state, in its exercise of the right of eminent
domain, can subject the waters of such stream to
other public uses the same as any other private
property, by making a just compensation for the
injury, and not otherwise.
There is no provision made for the purchase of the
easement thus dedicated to the public use, or
attempted to be created for the public use. Yet prior
to the passage of these acts, the owners of the lands
on both banks of such streams owned the streams
and the right to use the water flowing in them, in any
manner consistent with the rights of persons above
and below them, without let or hindrance. They
might erect dams or other obstructions to direct the
water from the bed of the stream to any point of their
premises, returning it to its natural channel after
using it at their pleasure or convenience.




There is another matter to be considered before we
come to the questions arising upon the pleadings,
viz: the effect of a statute declaring an unnavigable
stream to be navigable.
It is worthy of remark, that in all the statutes of this
description, enacted hitherto in Ohio, no provision is
made for compensating the owners of the land,
through which such small streams flow, for any injury
which may accrue in consequence of thus converting
their private property into public highways.
A right of the owners of the lands on both banks of nonnavigable streams to use the water flowing in them, in
any manner consistent with the rights of persons above
and below them, without let or hindrance, is a right of
property within the protection of the constitution, and
that can not be impaired by a legislative enactment which
provides no compensation to the proprietor for the injury.
…although we deny to the legislature the power to
change the private rights of the riparian proprietor by so
doing, yet for all other purposes consistent with the
provisions of the constitution, the statutes should be
sustained
28
9/26/2015


It is evident that a definition that would at this day
limit public rivers in this country to tide-water rivers is
utterly inadmissible. We have thousands of miles of
public navigable water, including lakes and rivers in
which there is no tide. And certainly there can be no
reason for admiralty power over a public tide-water,
which does not apply with equal force to any other
public water used for commercial purposes and
foreign trade. The lakes and the waters connecting
them are undoubtedly public waters; and we think are
within the grant of admiralty and maritime jurisdiction
in the Constitution of the United States.
…in their ordinary condition, as highways for
commerce, over which trade and travel are or may
be conducted in the customary modes of trade and
travel on water. (**) And they constitute navigable
waters of the United States within the meaning of
the acts of Congress, in contradistinction from the
navigable waters of the States, when they form in
their ordinary condition by themselves, or by
uniting with other waters, a continued highway over
which commerce is or may be carried on with other
States or foreign countries in the customary modes
in which such commerce is conducted by water.





Some of our rivers are as navigable for many hundreds
of miles above as they are below the limits of tide
water, and some of them are navigable for great
distances by large vessels, which are not even affected
by the tide at any point during their entire length.
A different test must, therefore, be applied to
determine the navigability of our rivers, and that is
found in their navigable capacity. Those rivers must
be regarded as public navigable rivers in law which are
navigable in fact. And they are navigable in fact when
they are used, or are susceptible of being
used…[continued]
If we apply this test to Grand River, the conclusion
follows that it must be regarded as a navigable
water of the United States.
From the conceded facts in the case the stream is
capable of bearing a steamer of one hundred and
twenty-three tons burden, laden with merchandise
and passengers, as far as Grand Rapids, a distance
of forty miles from its mouth in Lake Michigan.
And by its junction with the lake it forms a
continued highway for commerce, both with other
States and with foreign countries…
29
9/26/2015


In The Montello, the Supreme Court clarified that
“customary modes of trade and travel on water”
encompasses more than just navigation by larger vessels:
The capability of use by the public for purposes of
transportation and commerce affords the true criterion of
the navigability of a river, rather than the extent and
manner of that use. If it be capable in its natural state of
being used for purposes of commerce, no matter in what
mode the commerce may be conducted, it is navigable in
fact, and becomes in law a public river or highway.
In that case, the Court held that early fur trading using
canoes sufficiently showed that the Fox River was a
navigable water of the United States.


A water body qualifies as a “navigable water of the
United States” if it meets any of the tests set forth in 33
C.F.R. Part 329 (e.g., the water body is (a) subject to the
ebb and flow of the tide, and/or (b) the water body is
presently used, or has been used in the past, or may be
susceptible for use (with or without reasonable
improvements) to transport interstate or foreign
commerce).
If the federal courts have determined that a water body
is navigable-in-fact under federal law for any purpose,
that water body qualifies as a “traditional navigable
water” subject to CWA jurisdiction






The term "waters of the United States" means
1. All waters which are currently used, or were used in the
past, or may be susceptible to use in interstate or foreign
commerce, including all waters which are subject to the
ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use,
degradation or destruction of which could affect
interstate or foreign commerce including any such waters:
Ownership of a river or lake bed or of the lands
between high and low water marks will vary according
to state law; …
…however, private ownership of the underlying lands
has no bearing on the existence or extent of the
dominant Federal jurisdiction over a navigable
waterbody.
30
9/26/2015




Returning to the "navigability in fact" rule, the Court
has explained the elements of this test. A basic
formulation of the rule was set forth in The Daniel Ball,
77 U.S. 557, 10 Wall. 557, 19 L. Ed. 999 (1871), a case
concerning federal power to regulate navigation:
"Those rivers must be regarded as public navigable
rivers in law which are navigable in fact. And they are
navigable in fact when they are used, or are
susceptible of being used, in their ordinary condition,
as highways for commerce, over which trade and travel
are or may be conducted in the customary modes of
trade and travel on water."
The segment-by-segment approach to navigability for
title is well settled, and it should not be disregarded. A
key justification for sovereign ownership of navigable
riverbeds is that a contrary rule would allow private
riverbed owners to erect improvements on the riverbeds
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.



The Daniel Ball formulation has been invoked in
considering the navigability of waters for purposes of
assessing federal regulatory authority under the
Constitution, and the application of specific federal
statutes, as to the waters and their beds.
…It has been used as well to determine questions of
title to water beds under the equal-footing doctrine.
… It should be noted, however, that the test for
navigability is not applied in the same way in these
distinct types of cases.
…By contrast, segments that are nonnavigable at the
time of statehood are those over which commerce could
not then occur. Thus, there is no reason that these
segments also should be deemed owned by the State
under the equal-footing doctrine.
31
9/26/2015

In reaching its conclusion that the necessity of portage
does not undermine navigability, the Montana Supreme
Court misapplied this Court's decision in The Montello, 87

U.S. 430, 20 Wall. 430, 22 L. Ed. 391. See 355 Mont., at
438, 229 P. 3d, at 446. The consideration of portage in…




The Montello was for a different purpose. The Court did
not seek to determine whether the river in question was
navigable for title purposes but instead whether it was
navigable for purposes of determining whether boats upon
it could be regulated by the Federal Government.
The primary focus in The Montello was not upon
navigability in fact but upon whether the river was a
"navigable water of the United States."
The Montana Supreme Court further erred as a matter of
law in its reliance upon the evidence of present-day,
primarily recreational use of the Madison River. Error is not
inherent in a court's consideration of such evidence, but
the evidence must be confined to that which shows the
river could sustain the kinds of commercial use that, as a
realistic matter, might have occurred at the time of
statehood.
Navigability must be assessed as of the time of statehood,
and it concerns the river's usefulness for " 'trade and
travel,' " rather than for other purposes.


Having clarified that portages may defeat navigability for
title purposes, and do so with respect to the Great Falls
reach, the Court sees no evidence in the record that could
demonstrate that the Great Falls reach was navigable.
Montana does not dispute that overland portage was
necessary to traverse that reach. Indeed, the State admits
"the falls themselves were not passable by boat at
statehood." …And the trial court noted the falls had never
been navigated. …. Based on these statements, this Court
now concludes, contrary to the Montana Supreme Court's
decision, that … the 17-mile Great Falls reach, at least
from the head of the first waterfall to the foot of the last,
is not navigable for purposes of riverbed title under the
equal-footing doctrine.
Evidence of present-day use may be considered to the
extent it informs the historical determination whether
the river segment was susceptible of use for commercial
navigation at the time of statehood.
For the susceptibility analysis, it must be determined
whether trade and travel could have been conducted "in
the customary modes of trade and travel on water," over
the relevant river segment "in [its] natural and ordinary
condition."
32
9/26/2015





At a minimum, therefore, the party seeking to use
present-day evidence for title purposes must show:
(1) the watercraft are meaningfully similar to those in
customary use for trade and travel at the time of
statehood; and
(2) the river's post-statehood condition is not materially
different from its physical condition at statehood.
… If modern watercraft permit navigability where the
historical watercraft would not, or if the river has changed
in ways that substantially improve its navigability, then the
evidence of present-day use has little or no bearing on
navigability at statehood.
The Montana Supreme Court's ruling that Montana owns
and may charge for use of riverbeds across the State was
based upon an infirm legal understanding of this Court's
rules of navigability for title under the equal footing
doctrine. As the Court said in Brewer-Elliott "It is not for a
State by courts or legislature, in dealing with the general
subject of beds or streams, to adopt a retroactive rule for
determining navigability which . . . would enlarge what
actually passed to the State, at the time of her admission,
under the constitutional rule of equality here invoked."





The public trust doctrine is of ancient origin. Its roots trace
to Roman civil law and its principles can be found in the
English common law on public navigation and fishing
rights over tidal lands and in the state laws of this country.
the public trust doctrine remains a matter of state law,
Under accepted principles of federalism, the States retain
residual power to determine the scope of the public trust
over waters within their borders,
while federal law determines riverbed title under the
equal-footing doctrine.
The private grantee of the land cannot do anything
that will interfere with the channel, or hamper the
passage of water craft through it. But he may, without
the limits of the channel, erect fishing houses or such
other structures as his means and the depth of water
will permit; he may convert shallow portions into
cranberry patches; he may fill up other parts and make
solid ground. Although such action by him may lessen
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.
33
9/26/2015


The principle clearly deducible is, that as to navigable
rivers, the private right of the riparian owner to the land,
ordinarily covered by water, is in all cases subordinate to
the paramount public right of navigation, and its
incidents.
The converse is expressed by Christiancy, J., in Rice v.
Rudiman, 10 Mich., 125, thus: "In other words, all the
private or individual use and enjoyment of which the
land is susceptible, subordinate to, and consistent with,
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
lands of the owner not covered by water.
And where a builder of vessels so moored carries
lines from them across the river bank of such riparian
owner, against his objection, and fastens them upon
the land of such builder, and insists upon the right to
continue such acts, the riparian owner may be
entitled to an injunction, although his land is
unimproved, and such acts produce no actual present
damage.
Among the rights of the public is that of mooring
vessels for the purpose of repairs, and of putting in
engine, boilers and machinery, after such vessels have
been launched. Such use, reasonably enjoyed, is not a
trespass upon the lands of a riparian owner, in front of
whose river bank, outside of the dock line, such vessels
are moored, and such owner will not be entitled to an
injunction forbidding such use, unless special injury to
his property is shown.


Summary: the ship building company's act of carrying
lines across the property owner's bank, to which the
property owner had an absolute right which was not
qualified by any public use, constituted trespass
which the property owner was entitled to enjoin. The
court noted that such trespass could grow into a
prescriptive right, the risk of which should not be
imposed upon the property owner. The court also
noted that there was no hardship upon the ship
building company to require it to obtain a right to
such use of the property owner's bank by negotiation.
34
9/26/2015











Lukis and appellees-petitioners Dean Ray, John
Blackburn, and Thomas Blackburn (collectively, the
appellees) each own lakefront properties on Lake James
in Steuben County.
Lukis's lot is on the west end of a cove and includes
85.19 feet of lake frontage. ]
The Blackburns' property abuts the eastern boundary of
Lukis's lot and includes 29.93 feet of lake frontage. Ray's
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
owner acquires his rights to the water from his fee title
to the shoreland.
A panel of this court has explained that
[t]he rights associated with riparian ownership generally
include:
(1) the right of access to navigable water;
(2) the right to build a pier out to the line of
navigability;
(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.






In 2005, Lukis installed a pier that was eighty-nine feet
long and twenty-seven feet wide.
The pier was located approximately ten feet closer to the
Blackburns' west property line than piers installed by
Lukis's predecessors had been.
Lukis argues that the trial court erroneously concluded
that the way in which the NRC calculated the parties'
respective riparian zones was contrary to law.
In resolving the dispute, the Bath court stated that
"[t]here is no set rule in Indiana for establishing the
extension of [property] boundaries into a lake between
contiguous shoreline properties."
In Bath, the shoreline approximated a straight line and
the onshore property boundaries were perpendicular to
the shore.
Thus, the Bath court decided that the appropriate way to
determine riparian zones was to extend the onshore
boundaries into the lake.
35
9/26/2015


Additionally, the court emphasized that "the riparian
right to build a pier is limited by the rights of the public
and of other riparian owners. Therefore, riparian owners
may build a pier within the extension of [their] shore
boundaries only so far out as not to interfere with the
use of the lake by others."
In reaching its conclusion, the Bath court relied on an
opinion of the Wisconsin Supreme Court--Nosek v.


Stryker, 103 Wis. 2d 633, 309 N.W.2d 868 (Wis. 1981)


Often, however, the boundary lines on land are not at
right angles with the shore but approach the shore at
obtuse or acute angles. In such cases, it is inappropriate
to apportion the riparian tract by extending the onshore
boundaries. Instead, the division lines should be drawn
in a straight line at a right angle to the shoreline without
respect to the onshore boundaries. . .
A third method is used where the shoreline is irregular.
In that case, if it is impossible to draw lines at right
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.


In considering how to establish the parties' riparian
zones, the Nosek court described three possible ways of
doing so:
. . . In the least complicated situation, where the course
of the shore approximates a straight line and the
onshore property division lines are at right angles with
the shore, the boundaries are determined by simply
extending the onshore property division lines into the
lake. . . .
"[i]n that case, we recognized that the onshore
boundaries of a riparian tract extend into the lake in a
line perpendicular to the shore, where the shoreline
approximates a straight line.“
…"[i]nstead of a rigid application using a measure of
depth or length to determine riparian boundaries, the
better view would be to apply a 'reasonableness' test to
accommodate the diverse characteristics of Indiana's
numerous freshwater lakes."
36
9/26/2015





it is apparent to us that the standards contained therein
are fluid and best applied on a case-by-case basis.
Specifically, the Bath court concluded that there is no set
rule for establishing the extension of boundaries into a
lake between contiguous shoreline properties and the
Zappfe court applied a non- rigid reasonableness test.
The Nosek apportionment method would be a perfectly
appropriate way to solve the parties' dispute, but this
method has never been adopted as a fixed rule in
Indiana.
Indeed, as we have just concluded, there is no fixed rule
governing such disputes.
The trial court's decision appears to confuse riparian
rights and property ownership rights. It concluded "a
riparian owner takes to the low water mark, not to the
center as claimed by Plaintiffs."
However, in support of that conclusion the court cited a
decision where we determined the extent of an owner's
title to property: Irvin v. Crammond, 58 Ind. App. 540,
108 N.E. 539, 541 (1915) ("where land is bounded by the
Ohio river on the Indiana side, the title of the owner
extends to low-water mark")











A riparian landowner does not own the water in a stream
that runs along his property, but he does own the right
to the reasonable use of the stream as part of the title to
his real estate.
In Indiana, the rights associated with riparian ownership
generally include:
(1) the right of access to navigable water;
(2) the right to build a pier out to the line of
navigability;
(3) the right to accretions;and
(4) the right to a reasonable use of the water for general
purposes such as boating and domestic use.
(a) Subject to subsection (b), a riparian owner of land in
Indiana bordering upon a navigable stream may do the
following:
(1) Build and maintain:
(A) within the premises bordering on the stream; and
(B) upon the submerged land beneath the water; a pier,
wharf, dock, or harbor in aid of navigation and
commerce.
(2) Use, occupy, and enjoy the constructed item as
appurtenant to the owner's land.
37
9/26/2015






(b) A pier, dock, or wharf may not do any of the
following:
(1) Extend into the stream further than is necessary to
accommodate shipping and navigation.
(2) Obstruct shipping and navigation.
"Whether this statute is a complete definition of riparian
rights or is meant only as a limitation on what types of
obstructions a riparian owner may place in a stream or
river is not clear."
As riparian rights pertain to "the use of water in a
waterway adjoining the owner's property," and are not
property rights per se, …
…the determinative question is whether Hall's docks
interfered with the Landowners' access to and use of the
River, and not where the Landowners' title ended.


It is not apparent that Bainbridge stands for the
propositions that a riparian owner's structure can be
placed only "in front of" the owner's land, that a dock
may not extend in front of another's land so long as it
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."
Ind. Code § 14-29-1-4 provides only that a dock may
not "[e]xtend into the stream further than is necessary to
accommodate shipping and navigation" or "[o]bstruct
shipping and navigation."


In cases of accretion, owing to the difficulty of
tracing the original source, the law awards it to the
owner of the land to which it becomes attached,
while in cases of avulsion the original owner still
holds the title.
Accretion is the deposit by gradual and
imperceptible process, while avulsion involves the
transfer of a considerable quantity of earth beyond
or over the channel of the stream. Accretion is the
usual and ordinary case of the shifting of earth by
the action of the waters and avulsion is of a
somewhat extraordinary nature.
38
9/26/2015




In the absence of sufficient evidence to prove that a
change in the course of a river occurs as the result
of avulsion, a court must presume that the change
occurs as the result of accretion.
To avoid the presumption of accretion, a party
must present evidence to prove that the changes
are not gradual and imperceptible.
A party seeking to prove avulsion must also prove
that the land currently on one side of the river is
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
of a river by which the river abandons its old channel and
seeks a new channel. Nebraska v. Iowa (1891), 143 U.S.



359.


In order for an avulsion to occur there must be a sudden
shifting of the channel of a river which cuts off a body of
land such that after the shift of the river that body of
land remains identifiable as land which existed before
the shift and which never became part of the river bed.
An avulsion has no effect on the title to land.

Accretion is the process of gradual and imperceptible
increase in land caused by the deposit of earth, sand or
sediment thereon by contiguous waters and is held to be
a source of title.
Title to land formed by accretion is generally vested in
the riparian owner of the land to which the alluvion
attaches. Every proprietor of such riparian land is subject
to loss by the same means as may add to his territory
and as he is without remedy for his loss, he cannot be
held accountable for his gain.
where lands are overflowed and submerged, and within a
reasonable time the waters retire and the land reappears,
the title of the owner is not disturbed, and the
proprietorship remains in the original owner
However, "where the lands of a riparian owner are
removed by the gradual process of erosion by the river,
the land no longer capable of identification, but having
been carried away entirely, and the river occupies the
identical space formerly occupied by the lands of the
riparian owner, the title to the land so occupied by the
bed of the river passes from the owner
39
9/26/2015
In assessing the changes that have occurred in riparian
rights down the corridor of years it is well to keep in
mind an appreciation for the basic rationale behind the
rule of law which gave to the riparian owner the rights to
land surfacing through the process of accretion or
reliction. In its nascency, the sole purpose of the rule
was to assure to the riparian owner that he would never
be cut off from his access to water.
If an intervening party were permitted to gain title to
accretions or to land exposed by the subsidence of
water, the riparian landowner would be deprived of his
valuable water-access rights."

It is equally well settled, that where a stream, which is
a boundary, from any cause suddenly abandons its old
and seeks a new bed, such change of channel works no
change of boundary; and that the boundary remains as
it was, in the center of the old channel, although no
water may be flowing therein. This sudden and rapid
change of channel is termed, in the law, avulsion. In
Gould on Waters, sec. 159, it is said: "But if the change
is violent and visible, and arises from a known cause,
such as a freshet, or a cut through which a new
channel is formed, the original thread of the stream
continues to mark the limits of the two estates."




In New Orleans v. United States, 10 Pet. 662 717, this
court said: "The question is well settled at common
law, that the person whose land is bounded by a
stream of water which changes its course gradually by
alluvial formations, shall still hold by the same
boundary, including the accumulated soil. No other
rule can be applied on just principles.
Every proprietor whose land is thus bounded is subject
to loss by the same means which may add to his
territory; and, as he is without remedy for his loss in
this way, he cannot be held accountable for his gain."
These propositions, which are universally recognized
as correct where the boundaries of private property
touch on streams, are in like manner recognized where
the boundaries between States or nations are, by
prescription or treaty, found in running water.
With such conditions, whatever changes happen to
either bank of the river by accretion on the one or
degradation of the other, that is, by the gradual, and,
as it were, insensible accession or abstraction of
mere particles, the river as it runs continues to be the
boundary.
40
9/26/2015



...if, deserting its original bed, the river forces for itself a
new channel in another direction, then the nation,
…suffers injury by the loss of territory greater than the
benefit of retaining the natural river boundary, and that
boundary remains in the middle of the deserted river bed.
For, in truth, just as a stone pillar constitutes a boundary,
not because it is a stone, but because of the place in which
it stands,
…so a river is made the limit of nations, not because it is
running water bearing a certain geographical name, but
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
and imperceptible process,
while avulsion involves the transfer of a
considerable quantity of earth beyond or over
the channel of the stream.
Accretion is the usual and ordinary case of
the shifting of earth by the action of the
waters and
avulsion is of a somewhat extraordinary
nature.





Controversies growing out of the shifting of
earth by the action of the waters in running
streams gave rise to the doctrines of
accretion and avulsion.
In cases of accretion, owing to the difficulty
of tracing the original source, the law awards
it to the owner of the land to which it
becomes attached, while in cases of avulsion
the original owner still holds the title.
Avulsion may exist, first, where a stream changes
its course, and, second, where a considerable
quantity of earth is carried en masse across the
channel and attached to the opposite shore.
As applied to the second class: Avulsion is the
removal of a considerable quantity of earth from
the land of one proprietor and its deposit upon
or annexation to the land of another suddenly
and by the perceptible action of the water.
Where the change to the channel of a river is
made suddenly and violently, and is visible, and
the effect is certain, it is said to be by avulsion.
41
9/26/2015



In Coulthard v. Davis, 101 Iowa 625, 70 N.W.
716, it is held: "Land detached from one side
of a river by a sudden change in the channel,
and left connected with land on the other
side, in such manner as to be capable of
identification, is not an accretion."
The question of identification must
necessarily play an important part in applying
the doctrine of avulsion. For without
identification there can be no avulsion in a
legal sense.
There is no heaping up at an instant, and while the
eye rests upon the stream, of acres or rods on the
forming side of the river. No engineering skill is
sufficient to say where the earth in the bank washed
away and disintegrating into the river finds its rest
and abiding place. The falling bank has passed into
the floating mass of earth and water, and the particles
of earth may rest one or fifty miles below, and upon
either shore.



"That while the disappearance, by reason of this
process, of a mass of bank may be sudden and
obvious, there is no transfer of such a solid body of
earth to the opposite shore, or anything like an
instantaneous and visible creation of a bank on that
shore.
The accretion, whatever may be the fact in respect to
the diminution, is always gradual and by the
imperceptible deposit of floating particles of earth.
There is, except in such cases of avulsion as may be
noticed hereafter, in all matter of increase of bank,
always a mere gradual and imperceptible process.
"Beginning at the northwest corner of the southeast
fractional quarter of section No. 12 township No. 33
north range 6 east at the ordinary high water mark of
Tippecanoe Lake at a willow tree and iron stake, running
thence south 250 feet, thence in an easterly direction five
hundred fifty ft. 550 to a point 250 ft. south of the
ordinary high water mark of said Tippecanoe Lake thence
north 250 feet to said ordinary high water mark of said
lake, thence westerly following the meandering of said
Tippecanoe Lake to the point of beginning."
42
9/26/2015
It also appears from a copy of the original Government
survey and from the facts not in dispute that the
southeast quarter of Sec. 12, Twp. 33 N., R. 6 E., in
Kosciusko county, Indiana, is a part of Government lot
No. 4 and that it extends to the north far out into
Tippecanoe Lake.
…appellees argue that they are the record owners of lots
Nos. 1 and 2 in Pleasant View and that such ownership
carries with it all of the land to the quarter section line,
together with riparian rights;





It is important to note that the grantor designated two
different monuments as the place of beginning, one at the
northwest corner of the southeast fractional quarter of
section 12, and the second at the "ordinary" high water
mark of the lake at a willow tree and iron stake.
(Assuming these three markers were at the same point.)
The intent of the parties, if it can by any possibility be
gathered from the language employed, will be effectuated.
When that intention is manifested in express terms, there
remains no room for presumptions, and the grantee will
be governed by such expressed intentions. To this extent
rules of construction are inoperative.





Appellants contend that they are the record owners of all
of the land lying north of lots Nos. 1 and 2 in Pleasant
View in the southeast quarter of said section 12.
In support of this contention, they argue that the deed
from Borders to Adams described the real estate as
commencing at the ordinary high water mark of
Tippecanoe Lake at a willow tree and iron stake and that
the real estate described is exactly 250 by 550 feet; that
the high water mark at a willow tree and an iron stake
constituted a monument designated as the place of
beginning…
When, however, the intent is not expressed, our courts
have indulged the presumption that, …
…unless a contrary intention appears or is clearly
inferable from the terms of the deed of conveyance, the
grantee of land bounded by a nonnavigable stream or
river, and, …
…in the majority of cases, by lakes and ponds, acquires
the title to the land to the center or thread of the water,
on the theory that the grantor will not be presumed to
have reserved a strip of land covered by water which will
be of no practical value to him, particularly in the
absence of a way of access thereto.
43
9/26/2015




However, this presumption is merely a principle of
interpretation adopted for the purpose of finding out the
true meaning of the words used.
This presumption is founded on a rule of public policy
which discourages the separation of the title of land and
of adjacent strips in the beds of highways which after
remaining in abeyance for years may become the
occasion of litigation, vexing and harassing those who in
good faith had bought the land without the strips and
had supposed themselves secure from such
embarrassment.
Appellants insist, however, that the iron stake, willow
tree, and high water mark were monuments recognized
by the parties as such, and that consequently appellees'
north boundary is governed and determined by such
monuments and not by the northwest corner of the
southeast fractional quarter of said section 12.
Under the principle that where some particulars of the
description in a deed do not agree, those which are uncertain and more liable to error and mistake must be
governed by those which are more certain.



Such presumption is invoked except when it clearly
appears from the language of the conveyance that the
contrary was actually intended and may be rebutted by
proof of the establishment of monuments which may
limit or restrict the boundary.
Apart from some exceptional cases, it may be said that
the presumption is so strong that, unless very clearly
confined within other limits by the terms of the grant, the
title of each owner of lands bordering on a fresh water or
nonnavigable river will be considered as extending to the
thread in its middle.
The courts in many states have recognized a distinction
between monuments called for as locating boundaries on
land and boundaries along watercourses, in that it is not
always practicable to locate monuments in the channels
of rivers. Accordingly the rule has been established that
there is no presumption that monuments mentioned in a
deed as occupying the bank of a river are intended by the
parties as being exactly located and as standing at the
water's edge.
44
9/26/2015




Instead the monuments may be referred to as merely
indicating the location of lines which intersect the
stream, and which should be continued beyond the
monument to the water's edge. Therefore although a
boundary is said to run along a stream, and monuments
are mentioned which occupy its bank, this does not
necessarily limit the grant to the bank, and the running
of a boundary line by courses and distances along the
bank of a river will not prevent the water from being the
boundary in accordance with the general rules regulating
boundary lines on navigable and nonnavigable rivers.
A riparian owner acquires his rights to the water from his
fee title to the shoreland. Brown v. Heidersbach (1977),
172 Ind.App. 434, 440, 360 N.E.2d 614, 619. The land
conveyances to the Baths and to the Courts indicate that
they own the shoreland contiguous to their onshore
boundaries.
According to the Indiana Supreme Court, a shoreline
boundary vests title in the landowner to the middle of
the stream. Brophy v. Richeson (1893)
It is undisputed that the Baths' and the Courts' lots both
extend to the shoreline of the lake. Therefore, the Baths
and the Courts have riparian rights to their property
fronting Lake Nyona.




Ralph and Margaret Bath and John and Nancy Courts are
neighbors owning adjacent land on the shore of Nyona
Lake. The Courts maintained a pier which extended out
from their own property. Because the Courts wanted to
build a platform at the end of their pier without
interfering with the public pier, they angled their pier
away from the public pier to cross the Baths' shorefront
property.
On appeal the Baths contend that their boundaries
extend to the middle of Lake Nyona allowing them to
maintain their pier and requiring the Courts to remove
their pier from the Baths' property.
Riparian rights to accretion support this determination
that the onshore boundaries extend out into the lake at
a right angle.
Accretion, the increase in land caused by earth, sand, or
sediment deposits, generates a source of title which
usually vests in the riparian owner of the land to which
the alluvion attaches. Longabaugh v. Johnson (1975),
163 Ind.App. 108, 110, 321 N.E.2d 865, 867.

If Lake Nyona were to naturally recede, title to the new
land would vest in the riparian owners by the extension
of his shore boundaries.
45
9/26/2015

Even though we are willing to extend the onshore
boundaries, we are not willing to extend them to the
middle of Lake Nyona. Early Indiana courts recognized
that riparian rights included ownership to the middle of
the stream or river. Ross v. Faust (1876), 54 Ind. 471,

476-77; Brophy, supra at 121, 36 N.E. at 425; Sanders,
supra at 95, 191 N.E. at 333; Brown, supra at 440, 444,
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
enclosed lake, like Lake Nyona, bordered by various
riparian lot owners, is not navigable and is not subject to
the rule that the riparian owner holds title from his
shoreline to the middle of the lake. Stoner v. Rice (1889),
121 Ind. 51, 53-4, 22 N.E. 968, 969.


The Court explained that such application of this rule to
lakes would exclude some owners from title to any of
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.

Unless the deed revealed a contrary intention, riparian
rights were extended from the shoreline to the middle of
the riverbed because the courts thought it unlikely that a
grantor would retain the strip of land under the water
which would be of no practical value to him in the
absence of access and which could be a source of
litigation.
Indiana courts have failed to clearly define "navigable."
The most recited definition is that navigability in law is
navigability in fact. State v. Kivett (1950), 228 Ind. 623,
629, 95 N.E.2d 145, 149.

Although it would be desirous to define "navigable" lakes
and even though many states have found a lake to be
"navigable" because it is used for recreation, our
statutory law renders such a determination unnecessary.
46
9/26/2015







"13-2-11-1 [27-654]. Freshwater lakes -- Authority of
state to control for public enjoyment. -- The state of
Indiana is hereby vested with full power and control of
all of the public freshwater lakes in the state of Indiana
both meandered and unmeandered and the state of
Indiana shall hold and control all of said lakes in trust for
the use of all of its citizens for fishing, boating,
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.
Sec. 3. (a) As used in this chapter, "public freshwater
lake" means a lake that has been used by the public with
the acquiescence of a riparian owner.
(b) The term does not include the following:
(1) Lake Michigan.
(2) A lake lying wholly or in part within the corporate
boundaries of any of the three (3) cities having the
largest population in a county having a population of
more than four hundred thousand (400,000) but less
than seven hundred thousand (700,000).
(3) A privately owned body of water:







The public and other riparian owners have the right to
use Lake Nyona. These rights can co-exist only if the
riparian right to build a pier is limited by the rights of
the public and of other riparian owners. Therefore,
riparian owners may build a pier within the extension of
his shore boundaries only so far out as not to interfere
with the use of the lake by others.
(c) The:
(1) natural resources and the natural scenic beauty of
Indiana are a public right; and
(2) public of Indiana has a vested right in the following:
(A) The preservation, protection, and enjoyment of all
the public freshwater lakes of Indiana in their present
state.
(B) The use of the public freshwater lakes for recreational
purposes.
47
9/26/2015





(d) The state:
(1) has full power and control of all of the public
freshwater lakes in Indiana both meandered and
unmeandered; and
(2) holds and controls all public freshwater lakes in trust
for the use of all of the citizens of Indiana for
recreational purposes.
(e) A person owning land bordering a public freshwater
lake does not have the exclusive right to the use of the
waters of the lake or any part of the lake.
A riparian owner acquires his rights to the water from his
fee title to the shore land. Brown v. Heidersbach (1977),




Ind.App., 172 Ind. App. 434, 360 N.E.2d 614, 619.

When the intent of the parties is not expressed in the
deeds, a strong presumption arises that "unless a
contrary intention appears or is clearly inferable from the
terms of the deed of conveyance, the grantee of land
bounded by a nonnavigable stream, river, lake, or pond
acquires title [from the onshore boundaries] to the
thread or center of the water...." Earhart v. Rosenwinkel


Instead of a rigid application using a measure of depth
or length to determine riparian boundaries, the better
view would be to apply a "reasonableness" test to
accommodate the diverse characteristics of Indiana's
numerous freshwater lakes.
…(exercise of riparian rights is governed by a rule of
reasonableness);
…(riparian owners may exercise such rights as access,
swimming, fishing, bathing, and boating, subject to a
rule of reasonableness).
Determinations of riparian rights generally turn upon
whether a lake is navigable or nonnavigable. See Bath v.
Courts, 459 N.E.2d 72, 75 (Ind. Ct. App. 1984) .
While Indiana courts have not clearly defined "navigable",
the courts have provided some guidelines concerning
nonnavigable lakes.
A lake is nonnavigable when it is enclosed and bordered
by riparian landowners. (citing Stoner v. Rice, 121 Ind.
51, 22 N.E. 968 (1889)).
(1940), Ind.App., 108 Ind. App. 281, 25 N.E.2d 268, 272.
48
9/26/2015




In the present case, there is no dispute that Dead Lake is
nonnavigable. Dead lake is enclosed by the property of
two landowners, Berger and the Estes. Upon finding that
Dead Lake is nonnavigable, we now determine the
appropriate riparian rights.
It is well established that the owner of land, upon which
there is located a nonnavigable lake, owns and has the
right to control the surface of the lake.
When a nonnavigable lake covers the property of more
than one landowner, "each owner has the right to the free
and unmolested use and control over his portion of the
lake bed and water thereunder for boating and fishing."
And they constitute navigable waters of the United States
within the meaning of Congress, in contradistinction
from the navigable waters of the States, when they form
in their ordinary condition by themselves, or by uniting
with other waters, a continued highway over which
commerce is or may be carried on with other States or
foreign countries in the customary modes in which such
commerce is conducted by water.





In determining whether a body of water is "navigable," a
number of courts have applied the definition first
articulated in The Daniel Ball, 77 U.S. 557, 19 L. Ed. 999
(1870). In that case pertaining to the navigability of a
river, the court stated:
Those rivers must be regarded as public navigable rivers
in law which are navigable in fact. And they are navigable
in fact when they are used or are susceptible of being
used in their ordinary condition, as highways for
commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on
water.
The key consideration is whether any commercial vessels
could proceed from the aforementioned area into Trail
Creek and then into Lake Michigan. The only evidence in
the record is that no vessels engaged in interstate
commerce can pass through the opening into Trail Creek.
The opening is too narrow, and the water is too shallow
(2 1/2 feet), to allow such passage.
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."
49
9/26/2015



The Plaintiffs point to the United States Coast Guard's
exercise of authority over the Blue Chip casino boat as
additional evidence that the casino boat is connected
with navigable waters. The Plaintiffs reason that there
must be Jones Act jurisdiction because the Coast Guard's
authority is limited to "navigable" waters.
The interchangeable terms "navigable" and "navigability"
do not have a fixed meaning, and it is important to
ascertain the purpose for which the terms are being
used.
While Commerce Clause jurisdiction is not affected by the
construction of man-made obstacles upon a previously
navigable body of water, the construction of such
obstacles that eliminate commercial maritime activity
also eliminate general admiralty jurisdiction.




For instance, the term "navigability" has been used to
define four separate and distinct concepts: (1) the
delineation of the boundaries of navigational servitudes;
(2) the scope of Congress' regulatory authority under the
Commerce Clause; (3) the extent of the authority of the
Army Corps of Engineers under the Rivers and Harbors
Appropriation Act of 1899; and (4) the limits of
jurisdiction of the federal courts conferred by the United
States Constitution.
"Navigability" under the Commerce Clause is broader
than the same concept under general admiralty
jurisdiction.
The definition of "navigable waters" for Coast Guard
jurisdiction refers to waters that "are or have been used,
or are or have been susceptible for use, by themselves or
in connection with other waters, as highways for
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.
50
9/26/2015





Article III, section 2 of the United States Constitution
provides that "the judicial power shall extend ... to all
cases of admiralty and maritime jurisdiction."
In order to invoke admiralty jurisdiction, a Court must
find that (1) the incident occurred on the navigable
waters of the United States, (2) the incident posed a
potential hazard to maritime commerce, and (3) the
activity engaged in was substantially related to traditional
maritime activity.
The Respondents' reliance on Mr. Hay's Guide Book, does
establish that a boat can make an interstate trip from
Lafayette to the Ohio River. Furthermore, the dams
referred to in the Guide Book by Respondents are
irrelevant due to the fact that they are upstream from
where the incident occurred. There is no evidence of
dams or obstructions which would hinder a small craft
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.

The first issue to determine is whether the Wabash River,
which is where the incident occurred, is a navigable
waterway of the United States and thus subject to this
Court's admiralty jurisdiction. In Weaver v. Hollywood
Casino-Aurora, Inc., 255 F.3d 379, 382 (7th Cir. 2001),


the Seventh Circuit cited The Daniel Ball, test for
navigability…
The Petitioner, Lisa M. Strahle, contends that Mr. Hay's
Guide Book conclusively establishes the navigability of
the Wabash River from West Lafayette, Indiana to its
junction with the Ohio river.
The Petitioner illustrated that in the 1980's the Natural
Resource Commission ("NRC") engaged in extensive
research to identify those Indiana waters declared
navigable by a court, the legislature, or an administrative
agency. According to Mr. Lucas, the Director of the NRC,
the research applicable to the Wabash River was
consistent with a determination that the river is navigable.
51
9/26/2015








The NRC definition of "navigability" provides:
(a) "Navigable" means a waterway that has been declared
to be navigable or a public highway by one (1) or more of
the following:
(1) A court
(2) The Indiana General Assembly
(3) The United States Army Corps of Engineers
(4) The Federal Energy Regulatory Commission
(5) A board of county commissioners under IC 14-29-1-2
(6) The commission following a completed proceeding
underIC 4-21.5-1-1.



The Petitioner also contends that the United States Army
Corps of Engineers has concluded that the Wabash River
is a navigable waterway of the United States.
The Respondents again argue that there is no reasonable
relation between its definition of navigability and the
definition relevant for the invocation of admiralty
jurisdiction.
Evidence that Army Corps of Engineers considered river
and lake navigable waters of the United States, though
not controlling, was significant in determining
navigability…
52