Hagan v. Del. Anglers' & Gunners' Club

655 A.2d 292 (Del. Ch. 1995)



Navigability generally means that the waters are used, or 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 the water. The legal concept of navigability embraces both public and private interests, and cannot be determined by a formula which fits every type of waterway under all circumstances at all times. 


Defendant corporation owned the land under the lake, as well as property surrounding it. Plaintiff fishers, who owned land near the lake, claimed that the lake was open to the public because the creek that was dammed to form it was a navigable body of water. They also asserted a reservation of rights included in the original deed under which the corporation obtained title to the lake. The corporation claimed that it had acquired by adverse possession the exclusive right to use the lake. The court entered judgment in favor of the corporation, finding that the lake was not navigable in fact and that the fishers had acquired no fishing rights by virtue of their deeds.


Did plaintiffs acquire any fishing rights to the lake through their deeds?




Considering evidence as to the present condition of the lake and the discharge stream, the court concluded that neither the discharge stream nor the waterway that would exist if there were no dam was navigable in fact. The discharge stream was only a few feet deep and was wholly or partially blocked by tree stumps and fallen branches. The opinions of the corporation's experts and the evidence relating to the dam washout demonstrated that the waterway that would exist if there were no dam would not be navigable in fact. The court also found that the reservation of fishing rights by the person from whom the parties obtained their deeds was a profit a prendre in gross that did not convey any rights to successive landowners. There was no evidence that fishing rights were intended to pass with the property.

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