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
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
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 ).
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.
"`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
"(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
"(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,
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
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 ...