Determining whether a waterway is or is not navigable is essential to a number of issues. Basic property rights may turn upon legal navigability. Boating and fishing opportunities, water withdrawals, mineral rights to a river bed or lake bed, wetlands management, and even title to ancient shipwrecks or other cultural resources may be dependent upon whether or not a river or lake is navigable.
The law of navigable waters has developed primarily through judicial interpretations of individual cases, rather than by statutory or regulatory pronouncements. Although something of an oversimplification, the basic test of navigability in Indiana is whether a waterway was capable or susceptible to commercial traffic in 1816. The origins of this test have an extensive history.
History
Concepts of navigation and navigability were founded in ancient English Common Law. Early land titles granted by the Crown lacked precision, so grantees adjacent to the seacoast could exercise unlimited dominion over the waters adjacent to their grants. In 1568-69, however, Thomas Digges wrote a treatise asserting that the tidelands had not been included in grants along the seacoasts. His thesis was repeated in 1670 in an influential treatise De Jure Maris by Sir Matthew Hale, and landowners sometimes faced an insurmountable legal burden of showing a specific grant to the tidelands. When the eastern coastline of North America was colonized, this English heritage caused the tidelands to be considered navigable.1
State ownership by the original thirteen states of submerged lands and tidelands was set forth by the U.S. Supreme Court in 1842.2 Three years later, the Court held3 that the theory applied to all the states pursuant to the "equal footing doctrine."
Originally, state sovereign ownership of navigable waters was limited to the tidelands. Growing commercial navigation on the Great Lakes caused the United States Supreme Court to rethink the limitation. For federal admiralty jurisdiction, the necessity of a nexus to the sea or to its tidewaters was abandoned in 1851.4 The case involved a collision between boats on Lake Ontario. The Court found that to limit admiralty jurisdiction to tidewaters would be "contrary to the first principles on which the Union was formed," for it would deny "a perfect equal footing" to states without a seacoast.
Abandonment of a tidal action requirement for federal admiralty jurisdiction was followed by a similar development in The Daniel Ball with respect to issues of commerce. The U.S. Supreme Court decided in 1870 that a river once navigable in fact is navigable in law. Second, the decision found a waterway need only be "susceptible" for commercial usage to be legally navigable.5
Although consideration of The Daniel Ball is fundamental to modern application of navigable waters law in Indiana, the Indiana Supreme Court had already addressed the subject of navigability in 1833. In Cox v. State, 3 Blackf. 193, an individual was prosecuted for maintaining a mill dam across the White River which blocked navigation. The Court upheld the right of the state to remove the obstruction, based on jurisdiction over "navigable waters" as set forth in the Northwest Ordinance of 1787 (in the form reenacted by the United States Congress). The ordinance originally declared.
. . . The navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of said territory as to the citizens of the United States and those of any other states that may be admitted into the Confederacy, without any tax, Impost or duty therefor.
The Cox decision interpreted the Northwest Ordinance of 1787 to mean Indiana was prohibited from converting navigable waters to other than "public highways, and from obstructing them with any artificial obstruction, and from levying, any tax, impost, or duty on any of those citizens who may navigate them."
Not until 1950 did the Indiana Supreme Court implement the principles of The Daniel Ball. In what is still the landmark decision of Indiana navigable waters law, the Court declared in State v. Kivett6 that the test for determining navigability is whether a river or lake
was available and susceptible for navigation according to the general rules of river transportation at the time Indiana was admitted to the Union [1816]. 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....[T]he 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.
The controversy in Kivett was focused upon ownership of the bed of the West Fork of the White River from which the defendant was removing materials. If the West Fork of the White River was navigable in 1816, title to the bed passed to the state of Indiana and could not be conveyed incident to the adjoining riparian property. If non-navigable, title passed to the adjacent property owners. Upon the facts, the Court affirmed a lower court decision which found the river to be navigable.
The Court in Kivett also noted that "since the effect upon title to [the river bed] is the result of federal action in admitting a state to the Union, the question, whether the waters within the state under which the lands lie are navigable or non-navigable, is a federal" question and is "determining according to the law and usage recognized and applied in the federal courts, even though, . . . the waters are not capable of use for navigation in interstate or foreign commerce."
In essence, Kivett determined both interstate and Indiana intrastate navigability is founded upon federal common law. This determination is particularly helpful because federal decisions of interstate navigability can serve as precedents to issues of intrastate navigability in Indiana. Federal principles of navigability apply directly to Lake Michigan.
The provision in The Daniel Ball (and restated Kivett) that a waterway needs only to have been "susceptible" to navigation in 1816 has several consequences. The most important of these was stated in United States v. United States Steel Corporation.7 At issue was the legal navigability of the Grand Calumet River in Lake County for an area no longer conducive to commercial shipping. The court found that a river does not lose its character of legal navigability even though no longer actually used for commercial navigation. "Once found to be navigable, the water remains so." A similar result was reached with respect to the St. Joseph River in St. Joseph County. A river in fact navigable, although used infrequently or no longer used for purposes of commercial navigation, remains legally navigable.8
Stated in the simplest of terms: An Indiana river or lake which was capable of commercial navigation in 1816 is today legally navigable. What was then navigable in fact is now navigable in law.
Several Indiana waterways in the Lake Michigan watershed have been determined to be navigable or nonnavigable. These were compiled by the Indiana Natural Resources Commission in 19929 and were recently updated and placed on the Internet.10 In addition to Lake Michigan, they include the Grand Calumet River from the Illinois State Line to Marquette Park, the Indiana Harbor and Ship Canal, the West Branch of the Little Calumet River to the Illinois State Line, the East Branch of the Little Calumet River to the LaPorte County Line, Portage Burns Waterway (also known as Burns Ditch), Trail Creek in Michigan City for one mile upstream from its mouth on Lake Michigan, the St. Joseph River in St. Joseph and Elkhart Counties, and Baugo Creek in St. Joseph County. Listed as nonnavigable is Wolf Lake.11
