Public Right of way: Indiana Streams?

[snapping turtle]

Looks 10 foot canoe navigatable to me. 3 inches of water but I bet there are places that it would have to get out unless it rained in the area a few days before.

I could make it. Sugar creek in a drought looks like that.

 

[IndyGunworks]

doesn't really matter how it looks to me. I read that California article thing and thought if I would just wait til the water was up, and take a kayak though it and document it then one could prove that its navigable which would open up the whole stream to use. But then again, it doesn't really matter how it looks to us its the way the gov't or its agents would view it and that would be up to the discression so who knows how that would go. I don't want to get yelled at for trespassing, but if I cant use all of it, then I don't want to have to share mine either.

 

[Indy317]

Hawkeye posted a DNR link, which I read. That page had a link to this page:

NRC: Navigable Waterways Roster

Which states:

Property rights relative to Indiana waterways often are determined by whether the waterway is "navigable." Both common law and statutory law make distinctions founded upon whether a river, stream, embayment, or lake is navigable.


A landmark decision in Indiana with respect to determining and applying navigability is State v. Kivett, 228 Ind. 629, 95 N.E.2d 148 (1950). The Indiana Supreme Court stated that the test for determining navigability is whether a waterway:

was available and susceptible for navigation according to the general rules of river transportation at the time [1816] Indiana was admitted to the Union. It does not depend on whether it is now navigable....The true test seems to be the capacity of the stream, rather than the manner or extent of use. And the mere fact that the presence of sandbars or driftwood or stone, or other objects, which at times render the stream unfit for transportation, does not destroy its actual capacity and susceptibility for that use.
​

A modified standard for determining navigability applies to a body of water that is artificial. The test for a man-made reservoir, or a similar waterway that did not exist in 1816, is whether it is navigable in fact. Reed v. United States, 604 F. Supp. 1253 (1984).


The court observed in Kivett that "whether the waters within the State under which the lands lie are navigable or non-navigable, is a federal" question and is "determined according to the law and usage recognized and applied in the federal courts, even though" the waterway may not be "capable of use for navigation in interstate or foreign commerce." Federal decisions applied to particular issues of navigability are useful precedents, regardless of whether the decisions originated in Indiana or another state.
The primary issue in Kivett was ownership of the riverbed from which the defendant was removing materials. If the waterway was navigable on the date of statehood, title to the bed of the river passed to the state of Indiana and could not ordinarily be conveyed incident to the adjoining riparian property. Also, once a waterway is found to be navigable it remains so, even if the waterway is no longer used for purposes of commercial navigation. United States v. United States Steel Corporation, 482 F.2d 439 (7th Cir. 1973).


In the absence of a contrary state boundary, the appropriate line of demarcation for a navigable waterway is the ordinary high watermark. The Indiana Water Resource, Governor's Water Resource Study Commission, State of Indiana (Indiana Department of Natural Resources, 1980), page 107. The Natural Resources Commission has also adopted this standard by rule. 312 IAC 6-1. If not navigable, title to the bed of the river passes to the adjacent property owner or owners.


Ownership is not the only issue determined by whether a waterway is navigable. Public recreational and commercial usage of the surface of a river or stream often depends upon whether the water is navigable. Other legal foundations may, however, authorize public usage. A prescriptive easement may exist. A waterway may be a "public freshwater lake" subject to IC 14-26-2 and 312 IAC 11-1 through 312 IAC 11-5. Pursuant to IC 14-29-8, the Natural Resources Commission may, by rule, declare a waterway to be a "recreational stream."

 

[IndyGunworks]

I have read that as well, many times in fact, but I don't see how it directly answers the question at hand. I could see the article being used to support EITHER side of the argument.

 

[IndyGunworks]

So bump this to the top now that I have a better grasp on things. Even a lot of our "rivers" are not declared navigable accept for certain stretch's. However the law is still vague. Even Indiana DNR recognizes that "prescriptive easements" may be in placed, based on the history of use for the body of water.

Example. The big blue river is only considered public and navigable up to somewhere south of Shelbyville. but where I float it near cartage there are often 20 or 30 other boaters on nice weekends doing the same. I believe in this case one would have an uphill battle to prove there isn't a prescriptive easement that has been in place for decades and decades, perhaps centuries. This is because of the funny way that Indiana declares things navigable.

that's something to consider before you start using a non navigable waterway here in Indiana.


What I think needs to happen is a piece of legislation that changes the "was used for commercial use when Indiana became a state", to allow for recreational use. similar to the above posted California example. that would include most if not all of the prescriptive easements and really clear things up.


So in short, just because it doesn't make the navigable waterways list, does not mean you don't have legal and public access to it. but unfortunately the DNR does not keep a list of prescriptive easements.

 

[Baditude]

Just a thought, how about go meet / talk with your neighbors about it. I bet they would give you permission and who knows they may become your friends

 

[Expat]

Glad you brought this up. I have float hunted many rivers that don't appear on the navigable list, without incident. I also note the DNR stocks trout in some rivers that don't appear on the list but are apparently deemed okay to fish from by the public and it is private property surrounding it. Not sure how they get to do that since the public is fishing from the bank on those properties.

 

[amboy49]

A friend of mine thoroughly enjoyed wading Sugar Creek in Boone County for many years until the land on each side of the creek for quite a distance was purchased by a not so friendly individual. He was soon informed that he couldn't wade the stream anymore since the new landowner owned both sides and, therefore, also had control of the creek bottom. He would have been allowed to canoe down stream but would not have been allowed to step out. The new landowner has continually proved to be a real jerk constantly calling the authorities to report "trespassers." Reportedly he has even allowed the local conservation officer to live in one of the rental houses he owns at a greatly reduced rental amount.

Perhaps a call to the C.O. would help provide some clarity for your question.

YMMV