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January 19, 1990.


The opinion of the court was delivered by

Jasper R. Hays constructed a fence across Shoal Creek, in part to prevent canoeists and others from using that portion of the stream which flows through his land located in southeast Cherokee County. Christopher Y. Meek, the Cherokee County Attorney, filed a petition for declaratory judgment seeking to confirm the public's right to use Shoal Creek for recreational purposes. On June 11, 1988, the district court ordered Hays to remove the fence pending a hearing on the State's petition. On September 22, the district court denied the State's petition and dissolved its temporary restraining order, concluding:
"1. Shoal Creek is not susceptible of being used in its natural and ordinary condition as a highway for commerce and does not possess a capacity for valuable floatage in transportation to market of the products of the country through which it passes; it is therefore a nonnavigable stream.
"2. Respondents hold title to the stream bed of Shoal Creek where it passes through their property, and may exercise the same authority and control over the stream, its banks and bed, as the property adjacent to the stream, including the right to erect a barricade, barrier, or fence across the stream."
The State appeals, claiming that (1) Shoal Creek is a navigable stream; (2) the public has acquired the right to use Shoal Creek by prescriptive easement; and (3) the public has the right to use Shoal Creek under the public trust doctrine. In addition to the parties, the following amici curiae have briefed the case: The Kansas Wildlife Federation, the Geary County Fish and Game Association, and the Kansas Canoe Association support the State's position; and the Kansas Farm Bureau and the Kansas Livestock Association support the Hays' position.


  If Shoal Creek is a navigable stream, the Hays' ownership

[246 Kan. 101]

      extends only to the banks. Siler v. Dreyer, 183 Kan. 419, 421, 327 P.2d 1031 (1958). If the stream is nonnavigable, the Hays own the bed of the stream by the same title that they own the adjoining land. Dougan v. Shawnee County Comm'rs, 141 Kan. 554, Syl. ¶ 3, 43 P.2d 223 (1935). If the stream is nonnavigable, the Hays, who own the land adjoining both sides of the stream, may put a fence across the stream to prevent trespassers upon their property. See Att'y Gen. Op. No. 74-137.

  In England, streams were considered navigable only in so far as they partook of the sea, and to the extent that their waters were affected by the ebb and flow of the tide, and only so far was the title of the riparian owner limited to the bank; above such point, even though the stream was large enough to be used, and in fact was used, for purposes of navigation, the riparian owner owned the soil ad medium filum aquae — to the middle thread of the stream. There were three distinct characters of streams recognized: First, those smaller streams, which could not be used for any purpose of navigation, in which the title to the soil was in the riparian owner, and along which the public had no rights of highway or otherwise; second, an intermediate class, in which the riparian owner owned to the middle of the channel, but along whose stream the public had all the rights of a highway; and third, that which was called technically the navigable streams, where the title to the bed of the stream was in the sovereign, and all rights were in the public. The same doctrine of riparian ownership to the center of the stream in rivers unaffected by the ebb and flow of the tide is recognized in some states of the Union; but the better and more generally accepted rule in this country is to apply the term "navigable" to all the streams which are in fact navigable; and in such case to limit the title of the riparian owner to the bank of the stream. This is true in Kansas and most states where the lands have been surveyed and patented under the federal law. Wood v. Fowler, 26 Kan. 682, 689 (1882).

  To determine navigability, the first question is whether title to the riverbed passed to the State upon admittance into the Union. The critical case on this point is United States v. Holt Bank, 270 U.S. 49, 70 L.Ed. 465, 46 S.Ct. 197 (1926), which established that ownership of the beds of navigable streams and lakes is a federal question to be resolved according to principles

[246 Kan. 102]

      of federal law and under federal definitions. Holt Bank also established the specific criteria to be used in determining whether particular bodies of water are deemed navigable for purposes of vesting the state with title to the beds. Under this test, bodies of water are navigable and title to the beds under the water are vested in the state if: (1) the bodies of water were used, or were susceptible of being used, as a matter of fact, as highways for commerce; (2) such use for commerce was possible under the natural conditions of the body of water; (3) commerce was or could have been conducted in the customary modes of trade or travel on water; and (4) all of these conditions were satisfied at the time of statehood. 270 U.S. at 55-56.

  The last navigability case to come before this court was Webb v. Neosho County Comm'rs, 124 Kan. 38, 257 P. 966 (1927). There, the landowner sued the Neosho County Commissioners to recover for gravel taken from the Neosho River and used on the public roads in Neosho County. The Webb court found the Neosho River was not navigable by applying the following test:
"`Navigability in fact is the test of navigability in law, and that whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition as a highway of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.'" 124 Kan. at 40 (quoting Oklahoma v. Texas, 258 U.S. 574, 586, 66 L.Ed. 771, 42 S.Ct. 406 [1922]).
As Professor Wadley notes, this definition "appears to track the [Holt Bank] federal title test in all relevant areas except for the requirement that the criteria be satisfied as of the time of statehood." Wadley, Recreational Use of Nonnavigable Waterways, 56 J.K.B.A. 27, 31 (Nov./Dec. 1987).
  In its analysis, the Webb court first stated that navigability "is a question of fact to be determined from the evidence." 124 Kan. 38, Syl. 1. It then considered the trial court's factual findings:
"`2. In early days there were used on said river at one or more places ferry boats. This was before the county had been supplied with bridges.
  "`3. The evidence shows that in early days some logs were floated or rafted in parts of the river to a mill or mills located on said stream.

[246 Kan. 103]


"`4. Light boats, some run by motor power, have been used on the river for the transfer of passengers for pleasure and to a very limited extent for hire.
"`5. There was evidence introduced showing that at one time while the river was at ordinary height a boat traversed the river from Oswego, Kansas, to Humboldt, Kansas [a straight-line distance of approximately 50 miles].
"`6. In ordinary times, or ordinary stages of the water in the Neosho river, at the points in question light boats could be transferred but could not be transported any great distance up or down the river at such ordinary times without being pushed or helped over the riffles.
"`7. The riffles are very shallow, and many of them [are] in said river as it runs through Neosho county.
"`8. The Neosho river has never been used for the transportation of the products of the country along said river in Neosho county, Kansas, such as corn, wheat, oats, hay, cattle, hogs, or other stock.'" 124 Kan. at 39.
Based on this evidence, the Webb court found the Neosho River to be nonnavigable. 124 Kan. at 41.

  Only three rivers within the state have been declared navigable: the Kansas, the Arkansas, and the Missouri. See State, ex rel. v. Akers, 92 Kan. 169, 140 P. 637 (1914); Dana v. Hurst, 86 Kan. 947, 964, 122 P. 1041 (1912); and Wood v. Fowler, 26 Kan. 682. Likewise, only three rivers have been declared nonnavigable: the Neosho, the Delaware, and the Smoky Hill. See Webb v. Neosho County Comm'rs, 124 Kan. 38; Piazzek v. Drainage District, 119 Kan. 119, Syl. ¶ 2, 237 P. 1059 (1925); and Kregar v. Fogarty, 78 Kan. 541, Syl. ¶ 3, 96 P. 845 (1908).

  Did title to the Shoal Creek stream bed pass to the State upon entry into the Union or is there sufficient evidence to declare Shoal Creek navigable? The trial court made these findings of fact:
"(10) Shoal Creek cannot be floated without getting out of the canoe or boat at various locations.
"(11) John Link, Jr., owner of Ozark Quality Products, Inc., travels Shoal Creek several times a year collecting plants used in his business. . . .
"(12) There is no evidence that Shoal Creek has ever been used for valuable floatage in transportation to market of the products of the country through which it runs.
"(13) During times of drouth, portions of Shoal Creek are impassable by even a canoe or small boat. . . .
"(14) Shoal Creek has been used for recreational purposes for more than fifteen years.
  "(15) A canoe rental business exists, known as Holly Haven, which rents canoes to be used on Shoal Creek. The point of entry is near Joplin,

[246 Kan. 104]

      Missouri, with the point of exit at Schermerhorn Park, Galena, Kansas, where the business picks up the canoes and their occupants for the return trip to Holly Haven."

 Based on these findings, the district court held that Shoal Creek did not meet the Webb standard for navigability.

  The State does not challenge the trial court's findings; rather, it argues that findings (11) and (15) indicate that the stream is susceptible of being used for commerce, thus meeting the Webb standard for navigability. The Kansas Wildlife Federation adds: "Because Shoal Creek is in the same natural condition as it was at the time of statehood, any commercial use of the river today ...

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