Waterways: Quick Reference Cases

 The following information has been abstracted from the following:

WATERWAY BOUNDARIES

ALONG INLAND RIPARIAN LANDS, CANALS & ISLANDS

A Compilation of Historical Records Including Abstracts from Cases, Statutes & Law Reviews, (Detailed Sections on Pennsylvania), (A Supplement to Research)

BY: Michael F. Brinkash, P.L.S.

Copyright July 20, 2022

Addendums “A”, “B” & “C” ADDED July 14, 2023

This book is available for sale on the PSLS website here. 

1. Waterways must be regarded as “navigable in law if they are navigable in fact.” According to the United States Supreme Court in The Daniel Ball in 1870, (16)

2. Navigable in fact is navigable in law, however; navigable in law is not necessarily navigable in fact. If a river, creek or stream is not in fact navigable it cannot be made so by the mere passage of an Act of Legislation Id. At 435 (quoting Barclay Railroad & Coal Co. v. Ingham, 36 Pa. 194). (22)

3. If the stream is not actually navigable, so that there is no public right of way therein, a declaration by the legislature that it shall be regarded as navigable is a taking of private property for public use, and unless compensation is made the statute will be in conflict with the constitutional provision requiring compensation in such cases. The issue of whether the legislature may statutorily render a body of water navigable was addressed in Commonwealth v. Foster, 36 Pa.Super. (23)

4. If navigable in fact, it is so in law; it is public and no such statute need be considered. If not navigable in fact, it is not so in law and no statute can make it public, for the owners had title to the center of the waterway that cannot be divested by mere legislation. Smoulter v. Boyd, supra.

5. The owner in fee of lands beneath water has the right to control activities on the surface. Smoulter v. Boyd, 209 Pa. 146, 58 A. 144 (1904). (24)

6. If a body of water is navigable, it is publicly owned and may only be regulated by the Commonwealth; ownership of the land beneath would not afford any right superior to that of the public to use the waterway. Conversely, if it is non-navigable, it is privately owned by those who own the lands beneath the water’s surface and the lands abutting it, and may be regulated by them.  Lakeside Park Co. v. Forsmark, 396 Pa. 389, 153 A.2d 486 (1959); (25) Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, 74 A. 648 (1909). (26)

7. In The right to the use of water follows the ownership of the bed in which it flows. The commonwealth is therefore the owner of the rivers and holds them for the use of its citizens. They are public property-natural highways-open to all who may have occasion to use them. The case of all navigable rivers the beds in which they flow belong to the public.  Carson v. Blazer, (27) supra; Poor v. McClure, 77 Pa. 214. (28)

8. Those rivers must be regarded as public navigable rivers in law, which are navigable in fact. And they are navigable in fact when they are used, or are 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 water. The Daniel Ball 1870.

9. The difference in modes of trade and travel upon a long thin roadway of water joining regions and communities, which a river is, and upon a small lake, is obvious. Commerce may exist on both and it may move on both, but such movement on a 150-acre lake, unless it is an adequate link in a chain of commercial intercourse, remains local and insignificant in comparison with the large ships of transport that move along the great rivers of the Commonwealth. Lakeside Park Co. v. Forsmark, 396 Pa. 389, 391-92, 153 A.2d 486, 487 (1959). (31)

10. When any of this class of streams (smaller creeks & streams included in warrants) formed the boundary of such tract, the grantee acquired title ad filum aquae (to the middle of the stream).  Coovert v. O’Conner, 8 Watts [470] 477. (33) 

11. There is but one difference between a stream running through a man’s land, and one which runs by the side of it; in the former case he owns the whole, and in the latter, but half.  (Non-navigable) Child v. Starr, 20 Wend. 149. (34)

12. A body of water once shown to be navigable in its natural state is presumed to be navigable and “forever free.”  United States v. Appalachian Electric Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 299, 85 L.Ed. 243, 253 (1940)

13. Navigability, in the sense of the law, is not destroyed because a water course is interrupted by occasional natural obstruction.  Economy Light & Power Co. v. United States, 256 U.S. 113, 123-24, 41 S.Ct. 409, 412, 65 L.Ed. 847, 855 (1921)

14. The character of navigable water is not changed by any subsequent economic or geographic developments resulting in a commercial disuse of a river for navigation. Montana Power Co. v. Federal Power Commission, supra at 494

15. In Pennsylvania, upon the Revolution, the state succeeded to the rights both of the Crown and of the proprietors in the navigable waters and the soil under them. Rundle v. Delaware & Raritan Canal, 14 How. 80, 55 U. S. 90; Gilman v. Philadelphia, 3 Wall. 713, 70 U. S. 726. (38)

16. When reviewing the decision of an equity court, the chancellor’s findings of fact will stand unless there has been an abuse of discretion, a capricious disregard of evidence, a lack of evidentiary support on the record for the findings, or an error of law.  Hahalyak v. A. Frost, Inc., 444 Pa.Super. 494, 502, 664 A.2d 545, 549 (1995) (42)

17. In Forsmark, supra, our Supreme Court stated that the rule for determining the navigability of rivers is whether they 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 water.” Forsmark, 396 Pa. at 391-92, 153 A.2d at 487 (quoting Cleveland & Pittsburgh Railroad Co. v. Pittsburgh Coal Co., 317 Pa. 395, 397, 176 A. 7, 9 (1935)). (44)

18. A court sitting in equity may consult historical books of authority though not introduced into evidence, or may admit such works to aid it in the exercise of judicial functions.  Baird v. Rice, 63 Pa. 489, 495-500 (1871)

19. Historical books, which have been generally treated as authentic, are admissible as furnishing evidence of remote transactions.

20. Laidley v. Rowe, supra; Commonwealth v. Alburger, 1 Whart. 469, 475 (1836); (52)

21. Pennsylvania courts are not bound by the decisions of inferior federal courts where the case specifically concerns Pennsylvania law. Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 617, 182 A.2d 199, 203 (1962); Commonwealth v. Giffin, 407 Pa.Super. 15, 26, 595 A.2d 101, 107 (1991); Commonwealth v. Lacey, 344 Pa.Super. 576, 582, 496 A.2d 1256, 1260 (1985).

22. A riparian proprietor of land bounded by a stream continues to hold to the stream as a boundary where the banks are changed by accretion or erosion, but if the banks are changed by avulsion, the title is not changed, but remains at the former line. This rule applies alike to all streams and rivers, no matter how strong and swift they may be. U.S. Supreme Court – Philadelphia Co. v. Stimson, 223 U.S. 605 (1912) - Philadelphia Company v. Stimson* - No. 70 – Argued November 16, 1911 Decided March 4, 1912 (59)

23. To bring a sudden change of channel within the rule that it will not affect the boundary line, it must be perceptible when it takes place. Nebraska v. Iowa, 143 U. S. 359. 101 Ranch v. United States, 714 F. Supp. 1005 (D.N.D. 1988) (60)

24. When relicted lands are created, the upland owner takes title to those lands and is not accountable for the gain. Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 386, 97 S.Ct. 582, 594, 50 L.Ed.2d 550 (1977).

25. The doctrine of reliction causes the title to riparian land to be ambulatory. California ex rel. State Lands Commission v. United States, 805 F.2d 857, 864 (9th Cir.1986), cert. denied, ___ U.S. ___, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). This is consistent with the principle that land conveyed with water boundaries is expected to continue to be so bounded. See, e.g., Bear, 611 F.Supp. At 594.

26. Riparian land is burdened by submergence. Submergence is the converse of reliction and involves the imperceptible rise in water level so that land formerly free of water becomes submerged. Municipal Liquidators, Inc. v. Tench, 153 So.2d 728 (Fla.1963).

27. Title to submerged lands reverts to the State, id., and the loss is uncompensated. Bonelli Cattle Co. v. Arizona.

28. The principles of reliction and submergence are based upon changes in water level which are gradual and imperceptible. Utah v. United States, No. 31, report of special master (U.S. Oct. term 1967).

29. The Ordinary High Water Mark (OHWM) is defined as the border of land “which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes.” Rutten v. State, 93 N.W.2d 796, 799 (N.D.1958)

30. The clearest definition of the Ordinary Low Water Mark (OLWM) was codified by the South Dakota legislature. South Dakota defines it as “the low level *1018 reached by the waters of a lake under ordinary conditions unaffected by periods of extreme and continuous drought.” Unlike the OHWM, which is located by reference to conditions around the lake, the OLWM must be located by reference to recorded water levels. See South Dakota Wildlife Federation, 382 N.W.2d at 27.

31. Littoral lands border an ocean, sea, or lake. Riparian lands border, rivers or streams. Alexander Hamilton Life Insurance Co. v. Virgin Islands, 757 F.2d 534, 538 (3rd Cir.1985).

32. While submergence is the opposite of reliction, erosion is the converse of accretion. Erosion is the washing away of land by forces of water. Accretion is the gradual and imperceptible building of land by deposition of material. The principles of erosion and submergence are subject to similar law. See Municipal Liquidators, Inc., supra.

33. The Pennsylvania Supreme Court in Shrunk v. Schuylkill Navigation Company in 1826 defined (PA) the great rivers to be the Ohio, Monongahela, Youghiogheny, Allegheny, Susquehanna, and its north and west, branches, Juniata, Schuylkill, Lehigh and Delaware. Public waters also include “legally navigable” rivers, streams and lakes.

34. Court defined requirement of an Island. . . to be at least four feet high above common low water, containing at least forty perches of ground [one-fourth acre] exclusive of rocks, be susceptible of cultivation in grain or esculent [edible] roots in common seasons, by their growing and becoming maturely ripe. (Pennsylvania Coal Co. v. Winchester, 109 Pa. 572 (1885).

35. Islands in (PA) navigable streams belong to the Commonwealth, and are excepted from the general laws for the sale and settlement of vacant lands; they are granted under laws specially applicable to themselves. (Stover v. Jack, 60 Pa. 338 (1869).

36. Canals - 83 Pa. D. & C. 238 (1952) Commonwealth v. Cooper - Common Pleas Court of Bucks County, Pennsylvania. A "canal" in the ordinary acceptance of the term is an artificial channel or trench constructed for the purpose of conveying water, usually for the purpose of transportation or navigation. The term "canal" is unlike the terms "river," "pond," "lake," and other words used to designate natural bodies of water, the ordinary meaning of which is confined to the water itself, in that it includes also the banks, and has reference rather to the excavation or channel as a receptacle for the water. A canal has also been defined to be a navigable public highway of a peculiar kind. 12 C.J.S., § 1; Warn v. Easton and McMahon Transit Co., 2 N.Y.S. 620; Barnett v. Johnson, 15 N.J. Eq. 481, 485. It has also been described as "an arm of the sea." New Standard Dictionary.

37. Guinan v. Boston, Cape Cod & New York Canal Co., 1 F.2d 239 (2d Cir.  - 1924) Annotate this Case - U.S. Court of Appeals for the Second Circuit - 1 F.2d 239 (2d Cir. 1924) July 16, 1924. A canal is a navigable public highway of a peculiar kind, and it is not made otherwise by the fact that it is operated by a private company, which exacts tolls from those making use of it; and where a company maintains for its own profit a canal, which is open to public navigation on payment of tolls, it is not subject to the responsibilities of insurers. Gibbs v. Liverpool Docks, 3 H. & N. 164; Riddle v. Merrimack River Locks, etc., 7 Mass. 169, 5 Am. Dec. 35, Pennsylvania Canal Co. v. Burd, 90 Pa. 281; Steele v. Western Inland Lock Navigation Co., 2 Johns. (N. Y.) 283; Watts v. Savannah, etc., Canal Co., 64 Ga. 88, 37 Am. Rep. 53; James River, etc., Co. v. Early, 13 Grat. (54 VA) 541.

38. Water Boundaries Are Ambulatory In Nature: "The question is well settled at common law,  the person whose land is bounded by a stream of water, which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded, is subject to loss, by the same means which may add to his territory: and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain." New Orleans v. United States, 9 L.Ed. 573 (U.S.1836).

39. Where a meandered lake is non-navigable in fact, the patentee of the land bordering on it takes to the middle of the lake; but where the lake is navigable in fact, its bed and waters belong to the state in its sovereign capacity, and the riparian patentee takes the fee only to the water's edge.  Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, 74 A. 648 (1909) Also Cryer v. Sawhill Camp, supra (88 Pa. Superior Ct. 71).

40. The difference in modes of trade and travel upon a long thin roadway of water joining regions and communities, which a river is, and upon a small lake, is obvious. Commerce may exist on both and it may move on both, but such movement on a 150-acre lake, unless it is an adequate link in a chain of commercial intercourse, remains local and insignificant in comparison with the argosies of transport that move along the great rivers of the Commonwealth. The Montello, 20 Wall. 430, 439; U.S. v. Holt State Bank, 270 U.S. 49; U.S. v. Utah, 283 U.S. 64; Flanagan v. Philadelphia, 42 Pa. 219."

41. Navigability must be assessed as of the time of statehood, and it concerns the river’s usefulness for “trade and travel,” rather than for other purposes. See Utah, 283 U. S., at 75–76. Mere use by initial explorers or trappers, who may have dragged their boats in or alongside the river despite its non-navigability in order to avoid getting lost, or to provide water for their horses and themselves, is not itself enough. See Oregon, 295 U. S., at 20–21 (evidence that “trappers appear to have waded or walked” through the river, dragging their boats rather than floating them, had “no bearing on navigability”).

42. Older cases in riparian jurisdictions where upland owners own the beds of nonnavigable lakes and streams and the public has no rights to use such waters developed the rule that each riparian owner may use only that part of the surface of the lake overlaying his bed in Dredging, Filling, and Flood Plain Regulation in Michigan

43. In Conneaut we held: "Where a meandered lake is non-navigable in fact, the patentee of the land bordering on it takes to the middle of the lake; but where the lake is navigable in fact, its bed and waters belong to the state in its sovereign capacity, and the riparian patentee takes the fee only to the water's edge." Also Cryer v. Sawhill Camp, supra (88 Pa. Superior Ct. 71).

44. Everyone who buys property upon a navigable stream purchases subject to the superior rights of the Commonwealth to regulate and improve it for the benefit of all her citizens. If, therefore he chooses to place his mills or his works, for the qualified use which he may make of the water, within the limits or influence of high water, he does so at his own risk, and cannot complain when the Commonwealth, for the purpose of improvement, chooses to maintain the waters of the stream at a given height within its channel. 735 A.2d 718 (1999) LEHIGH FALLS FISHING CLUB, Appellant (at 1337), v.John ANDREJEWSKI, Appellee. Lehigh Falls Fishing Club, Appellee, v. John Andrejewski, Appellant (at 1338). Superior Court of Pennsylvania. Argued March 18, 1999. Filed July 26, 1999. The rule is clearly stated in Miller v. Lutheran Conference and Camp Association, 331 Pa. 241, 247, 200 A. 646, where Mr. Justice STERN said: "in the case of a non-navigable lake or pond where the land under the water is owned by others, no riparian rights attach to the property bordering on the water, and an attempt to exercise any such rights by invading the water is as much a trespass as if an unauthorized entry were made upon the dry land of another:", and that "the casual use of a lake during a few months each year forboating 598*598 and fishing could not develop into a title to such privileges by prescription."

45. In Pennsylvania, it is well-settled that, if a body of water is navigable, it is publicly owned and may only be regulated by the Commonwealth; ownership of the land beneath would not afford any right superior to that of the public to use the waterway. However, if a body of water is not navigable, it is privately owned by those who own the land beneath the water's surface and the land abutting it, and may be regulated by them. The rule for determining whether bodies of water are navigable is whether they 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 water. 103 A.3d 814 (2014) VILLAGE OF FOUR SEASONS ASSOCIATION, INC., Appellee v. ELK MOUNTAIN SKI RESORT, INC., Appellant. No. 996 MDA 2013 Superior Court of Pennsylvania Argued February 25, 2014 Filed October 14, 2014. Reargument Denied December 29, 2014.

46. Non-navigable is defined as not usable for commercial shipping purposes. See Lakeside Park v. Forsmark, supra.

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The preparer of the foregoing article is Michael F. Brinkash, Professional Land Surveyor who has been in professional land surveying practice since 1977 in Pennsylvania. Mike is not an attorney and he suggests that if you are engaged in litigation involving Waterway Boundary Disputes, please consult with a licensed attorney on issues specific to your case, otherwise, the information contained herein is for educational purposes only. Your attorney can advise you the relevance and current status of the foregoing court established rules.