State ex rel. Ind. Dept. of Conservation v. Kivett

• Citation: 228 Ind. 623,95 N.E.2d 145
• Decision Date: 14 November 1950
• Docket Number: No. 28645,28645
• Parties: STATE ex rel. INDIANA DEPARTMENT OF CONSERVATION v. KIVETT.
• Court: Supreme Court of Indiana

Page 145

95 N.E.2d 145

228 Ind. 623

STATE ex rel. INDIANA DEPARTMENT OF CONSERVATION v. KIVETT.

No. 28645.

Supreme Court of Indiana.

Nov. 14, 1950.

J. Emmett McManamon, Atty. Gen., Clyde H. Jones, Chief Counsel, Indianapolis, Fred A. Wiecking, Deputy, Lloyd Wampler, Deputy, for appellant.

Kivett, Chambers, Vernon & Kivett, Indianapolis, Grafton J. Kivett, Martinsville, S. C. Kivett, Sr., Indianapolis, for appellee.

YOUNG, Judge.

Fundamentally this case involves the title to the bed of White River in Morgan County, Indiana, about one and a half miles upstream from the city of Martinsville, Indiana.

The complaint in the case was the usual form to enjoin the appellee from taking sand, gravel, stone and other minerals and substances from the bed of White River and for an accounting for all such materials he has heretofore taken from said stream. To this complaint, the appellee, as defendant, filed answer in denial of all of the allegations thereof and a second paragraph alleging that the Indiana Department of Conservation is without authority to seek to recover money due the said State of Indiana and that the Auditor of State is the proper person to file such suit. Both parties filed a petition for special findings of fact and conclusions of law which were, in due course, handed down.

The case was submitted on a stipulation of facts and, in the preparation of such stipulation there had evidently been an abundance of investigation by both parties. The facts stipulated are that the west branch of White River in Morgan County, Indiana, ran in a southwesterly direction to a point where it joins the east branch of such White River and that such east branch after being joined by the west branch empties into the Wabash River at a point below the city of Vincennes, Indiana. The appellee owned adjacent land in Morgan County, Indiana, where he has a gravel rig or extractor through which he operates a drag line with dredge or bucket attached out over and into the bed of White River and has taken, and is now and threatens to continue to take sand, stone, minerals and other substances from the bed of White River. He was notified on the 9th day of December, 1946, that it was unlawful for him to continue this operation without first procuring a permit therefor from the State of Indiana, and that it would be necessary for him to have a permit if he intended to continue such business.

From about 1821 to about 1855, White River was used for carrying cargoes of mess pork, prime pork, lard, ham shoulders, bulk pork, flour, corn, bacon, lumber, venison hams, walnuts and other products from all points on White River in Morgan County to New Orleans, Louisiana. The flat boats ranged in size from boats 50 feet long, 12 feet wide and two feet deep with a capacity of 75,000 pounds, to boats 100 feet long, 20 feet wide, 3 1/2 feet deep and with a carrying capacity of 400,000 pounds. It was only during the months of February, March, April, and sometimes in May, that these barges proceeded down the river to New Orleans. There was evidence that 345 flat boats left Morgan County for New Orleans in the years 1829 to 1853, from which operations they made a net profit of $1,248,000.00. Photostatic copies of letters, records, papers and documents of one Samuel Moore are in evidence, including insurance policies, receipts, letters and papers of said Samuel Moore. In addition to such downstream business, it appears that keelboats ascended the stream via the Wabash and White Rivers as far as Indianapolis, and that at the time of the admission of the State of Indiana into the Union, and for a long time prior thereto, White River had been used as a highway and a mode of travel by Indians, traders, explorers, missionaries and early settlers, and, in 1831, two steamboats reached Indianapolis via White River, one of which towed a loaded barge. There was also a showing that large cargoes of bacon, flour and salt were shipped down the Ohio River to the Wabash River and thence upstream as far as Indianapolis and there is a report in the record that a 15-ton keelboat brought salt from West Virginia to Indianapolis. There were a number of historical documents taken from the Indiana Historical Society. Such use of the river continued until about 1868, when the completion of the Indianapolis and Vincennes Railroad led to the abandonment of the river as a highway.

Reports by early engineers as to the navigability of White River make no distinction between Morgan, Marion, Johnson and Hamilton Counties, although there was evidence to the effect that in Morgan County there was a 44 per cent increase in the flow of water than at Indianapolis in 1946 and 1947. The use of the stream as a highway has at all times been limited to the flat and keelboats herein described, with the exception of some small craft, which were pushed upstream by poling and, upon two occasions, by small steamboats. That, with the exception of these boats and the canoes, skiffs and bateaux used by Indians, explorers, missionaries, traders and new settlers, all shipments were downstream.

It is the contention of the appellant that, in final analysis, there is but a single question before this court, i. e., who owns the bed of the west fork of White River in Morgan County? Appellant contends that the answer to this question depends upon the navigability of this stream when Indiana was admitted to the Union in 1816, and that the answer to this question is one to be determined by federal law.

Appellant further contends that it is clear from the record in the case that said river was available and open in its natural state for use of flatboats and keelboats, which were the usual and ordinary method at that time for transportation of property and passengers. It calls attention to the fact that we must remember that the first steamboat in operation in this country was on the Hudson River in 1807, and that it took a number of years for steamboats to reach remote sections of the country, such as Indiana was at that time. As a result, the natural and reasonable way of travel was by flatboats and keelboats and, when such traffic is shown to have occurred on White River, that is tantamount to a finding that White River, at that time, was navigable.

In United States v. Holt State Bank, 1925, 270 U.S. 49, 46 S.Ct. 197, 198, 70 L.Ed. 465, it is said: 'It is settled law in this country that lands underlying navigable waters within a state belong to the state in its sovereign capacity and may be used and disposed of as it may elect, subject to the paramount power of Congress to control such waters for the purposes of navigation in commerce among the states and with foreign nations, * * *.'

In United States v. State of Utah, 1931, 283 U.S. 64, 51 S.Ct. 438, 440, 75 L.Ed. 844, it is said:

'In accordance with the constitutional principle of the equality of states, the title to the beds of rivers within Utah pass to that state when it was admitted to the Union, if the rivers were then navigable * * *.

'The question of navigability is thus determinative of the controversy, and is a federal question.'

To the same general effect are State v. Longyear Holding Company et al., 1947, 224 Minn. 451, 29 N.W.2d 657; United States v. State of Oregon, 1934, 295 U.S. 1-14, 55 S.Ct. 610, 79 L.Ed. 1267; Barney v. Keokuk, 1876, 94 U.S. 324, 24 L.Ed. 224.

Whether or not the waters of a state are navigable presents a question which must be decided under federal law and, under federal law, the rule is that a river is navigable in law which is navigable in fact. The Daniel Ball, 1870, 10 Wall. 557, 77 U.S. 557, 19 L.Ed. 999; Economy Light & Power Co. v. United States, 1921, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847; United States v. Appalachian Electric Power Co., 1940, 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243; Shively v. Bowlby, 1893, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331.

Indiana is a part of the territory covered by an Ordinance of Congress of 1787, in which is found this language: '* * * The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the 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 therefore.' Vol. I. pp. 288, 292, art. 4, Burns' 1933.

Whether or not a stream is navigable is an issue of fact and depends upon whether or not it was available and was susceptible for navigation according to the general rules of river transportation at the time Indiana was admitted to the Union. It does not depend upon whether it is now navigable, and the Supreme Court of the United States has held that such a test is not the fair one. United States v. Holt State Bank, supra; United States v. State of Oregon, supra; Economy Light and Power Company v. United States, supra; United States v. Appalachian Electric Power Co., supra; Shively v. Bowlby, supra.

So it seems that the correct test for determining the navigability of White River is whether or not it was susceptible and available for such use when the State was admitted to the Union and it, therefore, is not material if upstream traffic offered difficulties. The true test seems to be the capacity of the stream, rather than the manner or extent of use. United States v. The Montello, etc, 20 Wall. 430, 22 L.Ed. 391; United States v. State of Utah, supra, Economy Light and Power Co. v. United States, supra. And the mere fact that the presence of sandbars or driftwood or stone, or other objects, which at times renders the stream unfit for transportation, does not destroy its actual capacity and susceptibility for that use. Economy Light and Power Co. v. United States, supra; United States v. State of Utah, supra.

It seems to follow from the authorities above cited, that Indiana, by virtue of the Ordinance of 1787, acquired...