Mentor Harbor Yachting Club v. Mentor Lagoons, Inc.

• Decision Date: 23 December 1959
• Docket Number: 35784,Nos. 35783,s. 35783
• Citation: 163 N.E.2d 373,10 O.O.2d 131,170 Ohio St. 193
• Parties: , 10 O.O.2d 131 MENTOR HARBOR YACHTING CLUB, Appellee, v. MENTOR LAGOONS, INC., Appellant, et al. MENTOR HARBOR YACHTING CLUB, Appellee, v. MENTOR LAGOONS, INC.; Nozik, Appellant.
• Court: Ohio Supreme Court

Page 193

170 Ohio St. 193

163 N.E.2d 373, 10 O.O.2d 131

MENTOR HARBOR YACHTING CLUB, Appellee, v. MENTOR LAGOONS, INC., Appellant, et al.

MENTOR HARBOR YACHTING CLUB, Appellee, v. MENTOR LAGOONS, INC.; Nozik, Appellant.

Nos. 35783, 35784.

Supreme Court of Ohio.

Dec. 23, 1959.

Syllabus by the Court

1. The division of watercourses into navigable and nonnavigable is merely a method of dividing them into public and private.

2. A naturally navigable watercourse is navigable in law and is a public watercourse.

3. Navigation for pleasure and recreation is as important in the eyes of the law as navigation for a commercial purpose.

4. In determining the navigability of a watercourse for use either for recreation or for commerce, consideration may be given to the following factors: (1) Its capacity for boating in its natural condition, (2) its capacity for boating after the making of reasonable improvements, and (3) its accessibility by public termini. Coleman v. Schaeffer, 163 Ohio St. 202, 126 N.E.2d 444, approved and followed. Paragraph two of the syllabus of East Bay Sporting Club v. Miller, 118 Ohio St. 360, 161 N.E. 12, modified.

5. A natural temporary obstruction to navigation, in the form of a sand bar, does not destroy the otherwise navigable character of a watercourse.

6. A naturally navigable watercourse does not lose its character as a public watercourse because a part of its channel has been artificially created; and navigable artificial extensions of a naturally navigable watercourse in the form of lagoons become a part thereof, and the body of water composed of such watercourse and lagoons constitutes navigable and public waters.

These are appeals from a judgment of the Court of Appeals enjoining defendants, appellants herein, from trespassing upon waters flowing through property owned by plaintiff, appellee herein.

The facts as determined by the lower courts are substantially as follows:

In the late 1920's, the property now held by the parties to this action was owned by The Mentor Harbor Company, plaintiff's predecessor in title. The property, then in its natural state, consisted of marshlands in which there was located an inland body of water two or three hundred feet in diameter and fed by streams and drainage from the marsh. This body of water flowed into Lake Erie through a natural channel part of the time and at other times was separated from the lake by a sand bar formed in such channel as a result of the action of the waters of Lake Erie and the prevailing northwest winds.

While this area was in its natural state, it was used primarily by fishermen and hunters who obtained access thereto from Lake Erie through the natural passageway from the lake. However, at times of low water, it was sometimes necessary for the fishermen and hunters to drag their boats over the seasonally existent sand bar.

The plan of the original owner, The Mentor Harbor Company, was to develop this area into a residential community with private dock and boating facilities similar to those found in Ft. Lauderdale, Florida. Pursuant to this plain, the company constructed a series of interconnected lagoons in the area which had comprised the marsh and widened and deepened the channel into Lake Erie, building concrete retaining walls along the side walls of the lagoons and channel. The area surrounding the lagoons was subdivided into lots, a few of which were sold, but the project was abandoned due to the economic conditions existing in the 1930's. Plaintiff, The Mentor Harbor Yachting Club, is the present owner of the land adjacent to the channel, while defendants, Mentor Lagoons, Inc., and Albert C. Nozik, and others are the owners of the property adjacent to the lagoons. The defendants claim a right to use the channel as a means of ingress and egress between the lagoons and Lake Erie.

This action was brought by plaintiff to enjoin defendants from trespassing on the channel. Injunctions were granted both by the trial court and by the Court of Appeals hearing the case de novo. The lower courts determined that defendants have no right to use this channel either by virtue of an easement or by virtue of the fact that it is navigable waters. Both the lower courts held as a matter of law that this channel constitutes nonnavigable waters.

The cause is before this court on appeals as of right and pursuant to the allowance of motions to certify the record.

Albert C. Nozik, Cleveland, for appellants.

Jones, Day, Cockley & Reavis and Robert W. Poore, Cleveland, for appellee.

MATTHIAS, Judge.

The question for determination is whether the Mentor Harbor watercourse flowing into Lake Erie constitutes a navigable body of water. If it is a naturally navigable watercourse it is public. In view of our determination of this question, a consideration of other issues presented in this cause is unnecessary.

The division of watercourses into navigable and nonnavigable is merely a method of dividing them into public and private, which is the more natural classification. A modern concept of navigable waters was announced by this court in the recent case of Coleman v. Schaeffer, 1955, 163 Ohio St. 202, 126 N.E.2d 444. The syllabus of that case is as follows:

'1. In determining the navigability of a stream, consideration may be given to its availability for boating or sailing for pleasure and recreation as well as for pecuniary profit.

'2. Such navigability may be determined on the basis of not only the natural condition of the stream but also of its availability for navigation after the making of reasonable improvements.

'3. In determining the navigability of a stream, consideration may be given to its accessibility by public termini, but the presence or absence of such termini is not conclusive.'

We shall, therefore, determine the navigability of the Mentor Harbor watercourse upon the basis of the following factors: (1) Capacity for boating in its natural condition, (2) accessibility by public termini, (3) capacity for boating after the making of reasonable improvements, and (4) the capacity for boating for either recreation or commerce.

The natural condition of the watercourse in the Coleman case, supra, bore a marked resemblance to the condition of the waters of Mentor Harbor in the early 1920's prior to the time any artificial improvements were made. In the Coleman case it was determined that Beaver Creek which flowed into Lake Erie near the city of Lorain, Ohio, was a navigable watercourse. The owner of the land adjacent to the opening of the creek at the point of its joinder with the lake employed a contractor in 1938 or 1939 to dredge out sand accumulated at the entrance to the creek. Such accumulation was caused by the natural action of the winds and waters of Lake Erie. An examination of the record in the Coleman case substantiates the similarity of the facts there to those herein. At the trial of that action, several witnesses testified regarding the natural condition of Beaver Creek. The appellee's brief discloses, at pages 64 and 65, testimony (quoted from pages 485 to 487 of the transcript of that case) which indicated that a sand bar was formed at the mouth of the creek in precisely the same manner as the one which appeared from time to time at the mouth of Mentor Harbor. In order to keep the creek open from year to year, the sand accumulation had to be dredged. Also, the appellee's brief, at page 16, cites the testimony of another witness (quoted from pages 494 to 497 of the transcript) to the effect that, prior to the dredging of Beaver Creek, the area had the appearance of a swamp or marsh.

A further resemblance in the natural condition of the two watercourses exists. Beaver Creek was navigable only for a distance of two miles from its mouth. At that point the creek became shallow and filled with vegetation and debris to the extent that even the smallest vessel could not navigate it. Similarly, in the instant case, the streams which fed the natural body of water at Mentor Harbor were navigable only for a short distance while that inland body of water itself was fully navigable.

In examining the natural condition of the Mentor Harbor watercourse it was found by the Court of Appeals that a natural passage did in fact exist which connected the watercourse with Lake Erie. Prior to 1926, and before any improvements had been made, a number of vessels gained access to the inland waters by use of such passage. On these occasions the waters were variously used for hunting, fishing and boating. At...