State v. McIlroy , 268 Ark. 227 ( 1980 )

Darrell Hickman, Justice.

W. L. McIlroy and his late brother’s estate, owners of 230 acres in Franklin County, sought a chancery court declaration that their rights as riparian landowners on the Mulberry River were, because the stream was not a navigable river, superior to the rights of the public.

McIlroy joined as defendants the Ozark Society, a conservationist group, and two companies that rent canoes for use on the Mulberry and other Ozark Mountain streams. The State of Arkansas, intervening, claimed the Mulberry was a navigable stream and the stream bed the property of the state, not the Mcllroys.

The Ozark Society and the other defendants generally claimed that the Mulberry was a navigable stream but that even if the court found otherwise, a public easement in the Mulberry should be recognized. The defendants also argued that the public had acquired a prescriptive easement in the river and that the act admitting Arkansas into the Union placed the Mulberry in the public domain.

The chancellor declared the Mulberry was not a navigable stream. He found the Mcllroys owned it as riparian property owners with the incidental right to prevent the public from using the stream (the Mcllroys owned land on both sides of the Mulberry.) He declined to enjoin the Ozark Society from the publication of “The Mighty Mulberry,” a brochure proclaiming the Mulberry as an excellent stream for canoeing.

The State, the Ozark Society and one of the canoe suppliers appealed. Their essential allegations of error are that the chancellor was wrong in his determination that the Mulberry was not navigable and in failing to find the existence of a public or prescriptive easement. The Arkansas Canoe Club and the Arkansas Farm Bureau Federation each filed an amicus curiae brief. The canoe club generally supported the appellants and also asked us to declare almost every other stream in Arkansas navigable. The Farm Bureau’s brief supported the claims of the appellee landowners.

As we define the term “navigable” we find the Mulberry River, as it passes through Mcllroy’s property, to be navigable. Consequently, we reverse the chancellor’s decree in that regard. Our decision precludes the necessity to discuss any of the other issues raised on appeal.

The Mulberry River, located in northwest Arkansas, heads up in the Ozark Mountains and flows in a westerly direction for about 70 miles until it joins the Arkansas River. It could best be described as an intermediate stream, smaller than the Arkansas River, the lower White and Little Red Rivers and other deep, wide rivers that have been used commercially since their discovery. But neither it is like the many small creeks and branches in Arkansas that cannot be regularly floated with canoes or flatbottomed boats for any substantial period of time during the year. The Mulberry is somewhere in between. It is a stream that for about 50 or 55 miles of its length can be floated by canoe or flatbottomed boat for at least six months of the year. Parts of it are float-able for longer periods of time. The Mulberry is a typical rock-bottomed Ozark Mountain stream, flowing with relatively clear water and populated by a variety of fish. Small-mouth bass favor such a stream and populate the Mulberry.

For most of its distance it is a series of long flat holes of water interrupted by narrower shoals. These shoals attract the canoeists. McIlroy describes the stream as following a tortuous course; canoeists find it an exciting stream testing the skill of an experienced canoeist. Watergaps, affairs of wire or boards erected across the stream to hold cattle, have at times been erected but, according to W. L. McIlroy, they go down with the first rise of water. It is not a stream easily possessed. In recent years, the Mulberry has claimed the lives of several canoeists.

Annually, since 1967, the Ozark Society has sponsored for its members one or more float trips on the Mulberry River. These trips take them through Mcllroy’s property, which is located about 23 miles Up the river from where the Mulberry enters the Arkansas. McIlroy said he had a confrontation with Ozark Society members in 1975 when about 600 people put in at a low water bridge on his property. The bridge, near Cass, serves a county road, and is undisputably a public bridge. Canoeists and fishermen have regularly used it as an access place to the river.

Although we are aware of the general characteristics of the river, we must here only determine the navigability of the Mulberry as it flows through the appellees’ property. The chancellor faced this issue and ruled the river non-navigable. We reverse his decision and hold that the Mulberry River is navigable. While our decision will be a precedent for this river and should be used by the public and landowners as such, of necessity the judgment is directed only to the parties to this lawsuit.

This is essentially a lawsuit about the river as it passes through Mcllroy’s property. W. L. McIlroy testified that just below the bridge is a long hole of water, perhaps the longest on that stretch of the river, which is about 100 feet wide; it narrows to a shoal. He said a man could wade the water almost any time of the year. He claimed the river could sometimes not be canoed for an entire year. He said dry spots usually existed for six to eight months of the year. He denied seeing a canoe before 1974. However, from 1947 to 1971, McIlroy was in California. During that time he would spend only a week or so a year in Arkansas.

The great preponderance of the evidence conflicts with Mcllroy’s estimate of the river. It is floatable for at least six months of the year. According to a pamphlet, “The Float Streams of Arkansas,” published by an Arkansas state agency, the floating season is October through June. This is for a course from a point considerably upstream from Mcllroy’s property to the river’s mouth, a distance of about 50 miles. Numerous canoeists testified they had floated the Mulberry through the Cass area, mostly in the spring of the year. It was not disputed, however, that at times, usually in the summer months, the Mulberry could not be floated.

The evidence by testimony and exhibits demonstrates conclusively that the Mulberry had been used by the public for recreational purposes for many years. It has long been used for fishing and swimming and is today also popular among canoeists.

Seven witnesses from the locality testified. All testified they had fished or swum in the Mulberry at this locality and had never sought permission nor thought they needed it. It is only necessary to summarize some of their testimony. Thelma Smee, 51, said she was born on the McIlroy property and that people had fished up and down the Mulberry all her life. She never thought of having to get permission; nor she said would anyone expect even a total stranger to get permission to fish or swim. Curtis Childers, 66, born near the Mulberry, said four generations of Childerses, never having to get permission, have swum and fished the Mulberry. He recalled canoes on the river as early as 1967. Gary Turner, 36, grew up on the Mulberry at Turner Bend. His father, who owned a grocery store on the river, started a vehicle shuttle service for canoeists in the late 1950’s or early 1960’s. He had floated the Mulberry numerous times and never sought permission or felt he needed it. The Turners are still landowners on the Mulberry.

Fasie Toris lived near the Mulberry all her life, annually floating this segment of the Mulberry with her family numerous times. She never got permission nor felt anyone needed it. She concluded, “You may own the land but you don’t own the water.”

Several state and federal officials testified. Richard Davies, Director of Arkansas State Parks and Tourism, said his agency, along with the Arkansas Game and Fish Commission, published, in 1978, a pamphlet, “The Float Streams of Arkansas,” listing 14 of Arkansas’ most popular fishing and canoeing streams. The Mulberry was touted as Arkansas’ finest white water float stream and as an excellent habitat for smallmouth bass. Davies said he considered the water open to the public. George Purvis of the Arkansas Game and Fish Commission said the Mulberry was included in the pamphlet because it was one of the top five or six streams in the state for both floaters and fishermen. He also considered it open to the public. William E. Keith, an employee of the Game and Fish Commission, said fish were stocked on the Mulberry periodically from 1952 through 1977, sometimes at the low water bridge at Cass.

Nineteen canoeists testified and three others’ testimony was offered by stipulation. All had floated the Mulberry, most seveal times; some numerous times. None had ever sought permission nor thought they needed it. No one’s right to canoe was challenged until McIlroy challenged some of them in 1978. Harold Hedges began floating it in 1952, with about 20 other people. Most canoeists had floated the Mulberry in the 60’s and 70’s. Evidence showed the Ozark Society, a conservationist group, had sponsored floats annually from 1967 to 1978.

Besides Mcllroy’s testimony, several other local landowners testified or their stipulated testimony was presented. Woody Woolsey, who had lived most of his life next to the river, said he considered the stream private. He said he first saw a canoe in 1974. George Freeman, living nearby for 50 years, said he expected people to get permission to use the stream. He considered the stream private property.

Al Wiederkehr bought land on the Mulberry in 1966 and agreed he thought the Mulberry private property. He said his land was posted. The former sheriff of Franklin County, W. D. Gober, who built a cabin on the McIlroy property, said he first saw canoes in 1974. The testimony of five others was offered to the effect that the Mulberry was private property or used only with permission.

The original government plat made of this area in 1838 was introduced and shows the “Mulberry Creek” was “meandered” by the surveyors. Meander lines are those representing the border line of a stream and such lines are considered prima facie evidence of navigability. Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W. 2d 892 (1930).

The facts presented prove that the Mulberry River at the point in question is capable of recreational use and has been used extensively for recreational purposes. We must now decide whether such a stream is navigable.

Determining the navigability of a stream is essentially a matter of deciding if it is public or private property. See, State v. Korrer, 127 Minn. 60, 148 N.W. 617, sup op 127 Minn. 77, 148 N.W. 1095 (1914). Navigation in fact is the standard modern test of navigability, and, as embroidered by the federal courts, controls when navigation must be defined for federal purposes — maritime jurisdiction, regulation under the Commerce Clause, and title disputes between the state and federal governments. See, Hitchings v. Del Rio Woods Recreation & Park District, 55 Cal. App. 3d 560, 127 Cal. Rptr. 830 (1976); Day v. Armstrong, 362 P. 2d 137 (Wy. 1961). Otherwise, the states may adopt their own definitions of navigability. Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820 (1913).

While navigation in fact is widely regarded as the proper test of navigability, St. Louis, Iron Mountain & Southern Railroad Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931 (1890), it is a test which should not be applied too literally. For example, it has been said a stream need not be navigable at all its points or for the entire year to be navigable. Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S. Ct. 409, 65 L. Ed. 847 (1921). The real issue in these cases is the definition of navigation in fact.

Arkansas has adopted the standard definition of navigability. Lutesville Sand & Gravel Co. v. McLaughlin, supra. That test, which was similar to the general test used by the federal courts, defines navigability in terms of a river’s potential for commercial usefulness; that is, whether the water could be used to remove the products of the surrounding land to another place. That definition reads:

. . . Nor is it necessary that the stream should be capable of floating boats or rafts the whole, or even the greater part of the year. Upon the other hand, it is not sufficient to impress navigable character that there may be extraordinary times of transient freshets, when boats might be floated out. For, if this were so, almost all insignificant streams would be navigable. The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then in the American sense, it is navigable, although the annual time may not be very long. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times cannot be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is this, that usefulness for purposes of transportation, for rafts, boats or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round, (citing authorities). Id. at 181 Ark. 576-77, 265 S.W. 2d 893.

Therefore, a river is legally navigable if actually navigable and actually navigable if commercially valuable.

However, in the case of Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378 (1915), this Court foresaw, no doubt, that things would change in the future and that recreation would become an important interest of the people of Arkansas. The language in the Barboro case is almost prophetic. While adhering to the standard definition of navigability, with its dependence upon a commercial criterion, the Court went on to say:

It is the policy of this state to encourage the use of its water courses for any useful or beneficial purpose. There may be other public uses than the carrying on of commerce of pecuniary value. The culture of rice is being developed in this state and the waters of the lake could be used for the purpose of flooding the rice fields and for other agricultural purposes. As the population of the state increases, the banks of the lake may become more thickly populated, and the water could be used for domestic purposes. Pleasure resorts might even be built upon the banks of the lake and the water might be needed for municipal purposes. Moreover, the waters of the lake might be used to a much greater extent — for boating, for pleasure, for bathing, fishing and hunting than they are now used. [Emphasis added.] Id. at 382-383, 178 S.W. 2d at 380.

Since that time no case presented to us has involved the public’s right to use a stream which has a recreational value, but lacks commercial adaptability in the traditional sense. Our definition of navigability is, therefore, a remnant of the steamboat era.

However, many other states have been presented with this same problem. Back in 1870, the Massachusetts Supreme Court found a stream navigable that could only be used for pleasure. The stream was about two feet deep at low water. The court stated:

If water is navigable for pleasure boating, it must be regarded as navigable water though no craft has ever been upon it for the purpose of trade or agriculture. Attorney General v. Woods, 108 Mass. 436, 440 (1870).

In Ohio, the court recently was faced with this problem and decided to change its definition of navigation. The Ohio court said:

We hold that the modern utilization of our water by our citizens requires that our courts, in this judicial interpretation of the navigability of such water, consider this recreational use as well as the more traditional criterion of commercial use. State, ex rel. v. Newport Concrete Co., 44 Ohio App. 2d 121, 127, 73 Ohio Ops. 2d 124, 336 L. Ed. 2d 453, 457.

Applying a “public trust” to the Little Miami River, the Ohio court found that the State of Ohio “. . . holds these waters in trust for those Ohioans who wish to use the stream for all legitimate uses, be they commercial, transportational, or recreational.” State, ex rel. v. Newport Concrete Co., supra.

Michigan reached a similar conclusion in 1974. Navigability in Michigan was significantly affected by whether logs had been, or could be, floated down a stream. That “flotable test” had been used by the Michigan court until it was confronted with the same problem that we have. Michigan readily admitted that its definition needed to be changed:

We therefore hold that members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft. Kelley, ex. rel. MacMullan v. Hallden, 51 Mich. App. 176, 214 N.W. 2d 856, 864 (1974).

For examples of other states that have adopted similar definitions of navigation, see: People v. Mack, 19 Cal. App. 3d 1040, 97 Cal. Rptr. 448 (1971); Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (1893); Luscher v. Reynolds, 153 Or. 625, 56 P. 2d 1158 (1936).

Arkansas, as most states in their infancy, was mostly concerned with river traffic by steamboats or barges when cases like Lutesville, supra, were decided. We have had no case regarding recreational use of waters such as the Mulberry. It may be that our decisions did or did not anticipate such use of streams which are suitable, as the Mulberry is, for recreational use. Such use would include flatbottomed boats for fishing and canoes for floating — or both. There is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable at that place with all the incidental rights of that determination.

McIlroy and others testified that the reason they brought the lawsuit was because their privacy was being interrupted by the people who trespassed on their property, littered the stream and generally destroyed their property. We are equally disturbed with that small percentage of the public that abuses public privileges and has no respect for the property of others. Their conduct is a shame on us all. It is not disputed that riparian landowners on a navigable stream have a right to prohibit the public from crossing their property to reach such a stream. The Mcllroys’ rights in this regard are not affected by our decision. While there are laws prohibiting such misconduct, every branch of Arkansas’ government should be more aware of its duty to keep Arkansas, which is a beautiful state, a good place to live. No doubt the state cannot alone solve such a problem, it requires some individual effort of the people. Nonetheless, we can no more close a public waterway because some of those who use it annoy nearby property owners, than we could close a public highway for similar reasons.

In any event, the state sought a decision that would protect its right to this stream. With that right, which we now recognize, goes a responsibility to keep it as God made it.

Reversed.

Fogleman, C.J., concurs and dissents.