State v. McIlroy, 79-320

• Citation: 595 S.W.2d 659,268 Ark. 227
• Decision Date: 17 March 1980
• Docket Number: No. 79-320,79-320
• Parties: STATE of Arkansas et al., Appellants, v. W. L. McILROY et al., Appellees.
• Court: Arkansas Supreme Court

Page 659

595 S.W.2d 659

268 Ark. 227

STATE of Arkansas et al., Appellants, v. W. L. McILROY et al., Appellees.

No. 79-320.

Supreme Court of Arkansas.

March 17, 1980.

Rehearing Denied April 21, 1980.

Bay Fitzhugh, Augusta, Davis, Douglas & Penix, P. A., Springdale, Steve Clark, Atty. Gen., by Paul N. Means, Asst. Atty. Gen., Little Rock, for appellants.

Hardin, Jesson & Dawson, Fort Smith, for appellees.

HICKMAN, Justice.

W. L. McIlroy and his late brother's estate, owners of 230 acres in Franklin County, sought a chancery court declaration that their rights as riparian landowners on the Mulberry River were, because the stream was not a navigable river, superior to the rights of the public.

McIlroy joined as defendants the Ozark Society, a conservationist group, and two companies that rent canoes for use on the Mulberry and other Ozark Mountain streams. The State of Arkansas, intervening, claimed the Mulberry was a navigable stream and the stream bed the property of the state, not the McIlroys.

The Ozark Society and the other defendants generally claimed that the Mulberry was a navigable stream but that even if the court found otherwise, a public easement in the Mulberry should be recognized. The defendants also argued that the public had acquired a prescriptive easement in the river and that the act admitting Arkansas into the Union placed the Mulberry in the public domain.

The chancellor declared the Mulberry was not a navigable stream. He found the McIlroys owned it as riparian property owners with the incidental right to prevent the public from using the stream (the McIlroys owned land on both sides of the Mulberry.) He declined to enjoin the Ozark Society from the publication of "The Mighty Mulberry," a brochure proclaiming the Mulberry as an excellent stream for canoeing.

The State, the Ozark Society and one of the canoe suppliers appealed. Their essential allegations of error are that the chancellor was wrong in his determination that the Mulberry was not navigable and in failing to find the existence of a public or prescriptive easement. The Arkansas Canoe Club and the Arkansas Farm Bureau Federation each filed an amicus curiae brief. The canoe club generally supported the appellants and also asked us to declare almost every other similar stream in Arkansas navigable. The Farm Bureau's brief supported the claims of the appellee landowners.

As we define the term "navigable" we find the Mulberry River, as it passes through McIlroy's property, to be navigable. Consequently, we reverse the chancellor's decree in that regard. Our decision precludes the necessity to discuss any of the other issues raised on appeal.

The Mulberry River, located in northwest Arkansas, heads up in the Ozark Mountains and flows in a westerly direction for about 70 miles until it joins the Arkansas River. It could best be described as an intermediate stream, smaller than the Arkansas River, the lower White and Little Red Rivers and other deep, wide rivers that have been used commercially since their discovery. But neither is it like the many small creeks and branches in Arkansas that cannot be regularly floated with canoes or flatbottomed boats for any substantial period of time during the year. The Mulberry is somewhere in between. It is a stream that for about 50 or 55 miles of its length can be floated by canoe or flatbottomed boat for at least six months of the year. Parts of it are floatable for longer periods of time. The Mulberry is a typical rock-bottomed Ozark Mountain stream, flowing with relatively clear water and populated by a variety of fish. Smallmouth bass favor such a stream and populate the Mulberry.

For most of its distance it is a series of long flat holes of water interrupted by narrower shoals. These shoals attract the canoeists. McIlroy describes the stream as following a tortuous course; canoeists find it an exciting stream testing the skill of an experienced canoeist. Watergaps, affairs of wire or boards erected across the stream to hold cattle, have at times been erected but, according to W. L. McIlroy, they go down with the first rise of water. It is not a stream easily possessed. In recent years, the Mulberry has claimed the lives of several canoeists.

Annually, since 1967, the Ozark Society has sponsored for its members one or more float trips on the Mulberry River. These trips take them through McIlroy's property, which is located about 23 miles up the river from where the Mulberry enters the Arkansas. McIlroy said he had a confrontation with Ozark Society members in 1975 when about 600 people put in at a low water bridge on his property. The bridge, near Cass, serves a county road, and is undisputably a public bridge. Canoeists and fishermen have regularly used it as an access place to the river.

Although we are aware of the general characteristics of the river, we must here only determine the navigability of the Mulberry as it flows through the appellees' property. The chancellor faced this issue and ruled the river non-navigable. We reverse his decision and hold that the Mulberry River is navigable. While our decision will be a precedent for this river and should be used by the public and landowners as such, of necessity the judgment is directed only to the parties to this lawsuit.

This is essentially a lawsuit about the river as it passes through McIlroy's property. W. L. McIlroy testified that just below the bridge is a long hole of water, perhaps the longest on that stretch of the river, which is about 100 feet wide; it narrows to a shoal. He said a man could wade the water almost any time of the year. He claimed the river could sometimes not be canoed for an entire year. He said dry spots usually existed for six to eight months of the year. He denied seeing a canoe before 1974. However, from 1947 to 1971, McIlroy was in California. During that time he would spend only a week or so a year in Arkansas.

The great preponderance of the evidence conflicts with McIlroy's estimate of the river. It is floatable for at least six months of the year. According to a pamphlet, "The Float Streams of Arkansas," published by an Arkansas state agency, the floating season is October through June. This is for a course from a point considerably upstream from McIlroy's property to the river's mouth, a distance of about 50 miles. Numerous canoeists testified they had floated the Mulberry through the Cass area, mostly in the spring of the year. It was not disputed, however, that at times, usually in the summer months, the Mulberry could not be floated.

The evidence by testimony and exhibits demonstrates conclusively that the Mulberry had been used by the public for recreational purposes for many years. It has long been used for fishing and swimming and is today also popular among canoeists.

Seven witnesses from the locality testified. All testified they had fished or swum in the Mulberry at this locality and had never sought permission nor thought they needed it. It is only necessary to summarize some of their testimony. Thelma Smee, 51, said she was born on the McIlroy property and that people had fished up and down the Mulberry all her life. She never thought of having to get permission; nor she said would anyone expect even a total stranger to get permission to fish or swim. Curtis Childers, 66, born near the Mulberry, said four generations of Childerses, never having to get permission, have swum and fished the Mulberry. He recalled canoes on the river as early as 1967. Gary Turner, 36, grew up on the Mulberry at Turner Bend. His father, who owned a grocery store on the river, started a vehicle shuttle service for canoeists in the late 1950's or early 1960's. He had floated the Mulberry numerous times and never sought permission or felt he needed it. The Turners are still landowners on the Mulberry.

Fasie Toris lived near the Mulberry all her life, annually floating this segment of the Mulberry with her family numerous times. She never got permission nor felt anyone needed it. She concluded, "You may own the land but you don't own the water."

Several state and federal officials testified. Richard Davies, Director of Arkansas State Parks and Tourism, said his agency, along with the Arkansas Game and Fish Commission, published, in 1978, a pamphlet, "The Float Streams of Arkansas," listing 14 of Arkansas' most popular fishing and canoeing streams. The Mulberry was touted as Arkansas' finest white water float stream and as an excellent habitat for smallmouth bass. Davies said he considered the water open to the public. George Purvis of the Arkansas Game and Fish Commission said the Mulberry was included in the pamphlet because it was one of the top five or six streams in the state for both floaters and fishermen. He also considered it open to the public. William E. Keith, an employee of the Game and Fish Commission, said fish were stocked on the Mulberry periodically from 1952 through 1977, sometimes at the low water bridge at Cass.

Nineteen canoeists testified and three others' testimony was offered by stipulation. All had floated the Mulberry, most several times; some numerous times. None had ever sought permission nor thought they needed it. No one's right to canoe was challenged until McIlroy challenged some of them in 1978. Harold Hedges began floating it in 1952, with about 20 other people. Most canoeists had floated the Mulberry in the 60's and 70's. Evidence showed the Ozark Society, a conservationist group, had sponsored floats annually from 1967 to 1978.

Besides McIlroy's testimony, several other local landowners testified or their stipulated testimony was presented. Woody Woolsey, who had lived most of his life next to the river, said he considered the stream private. He said he first saw a canoe in 1974. George Freeman, living nearby for 50 years, said he expected people to get permission to use the stream. He considered the stream private property.

Al Wiederkehr bought...