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Determining the navigability of a stream is essentially a matter of deciding if it is public or private property. 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. Otherwise, the states may adopt their own definitions of navigability.
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 McIlroys.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 McIlroys owned it as riparian property owners with the incidental right to prevent the public from using the stream (the McIlroys 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.
Was the stream a navigable river?
The court reversed the judgment of the trial court and held that the riparian landowners could not prevent the public from using the stream. The court held that the original government plat made of the area in 1838 showed the stream was "meandered" which the court considered prima facie evidence of the navigability of the stream. Thus, the facts presented proved that the stream at the point in question was capable of recreational use and had been used extensively for recreational purposes. Furthermore, the court held that determining the navigability of a stream was essentially a matter of deciding if it was public or private property. Thus, the court held that there was no doubt that the segment of the stream that was involved in the lawsuit could be used for a substantial portion of the year for recreational purposes and that the stream was navigable with all the incidental rights of that determination. However, the court noted that it was not disputed that riparian landowners on a navigable stream had a right to prohibit the public from crossing their property to reach such a stream. Thus, the landowners' rights in this regard were not affected by the decision.