
    Coleman et al., Appellants, v. Schaeffer et al., Appellees. Sisco, Appellant, v. Schaeffer et al., Appellees.
    (Nos. 34112 and 34113
    Decided April 20, 1955.)
    
      Messrs. Keep <& Schols, for appellants.
    
      Mr. Frank E. Stevens, for appellees.
   Weygandt, C. J.

As observed by the lower courts, the ultimate question in this controversy is whether Beaver Creek River, or Beaver Creek, is a navigable stream where the defendants have constructed the wire fence and steel cables.

Most of the controlling facts are not in dispute.

The stream involved meanders through several townships and flows northward into Lake Erie. The defendants are a father and son who own the land on opposite sides of the mouth of the stream and extending up stream from the lake a distance of approximately a half mile. The plaintiffs own land on opposite sides of the stream immediately above that owned by the defendants. For some years all the parties have operated substantial commercial enterprises consisting of boat rentals, boat dockage, boat storage, boat repairs, cottage rentals, sale of fishing tackle and related services to the public. The defendants have constructed the fence and steel cables across the stream near the south boundary of their land and north of that of the plaintiffs, thus rendering it impossible for the plaintiffs to use the lower part of the stream and destroying their necessary ingress and egress from and to the concededly navigable lake.

In determining whether this stream is navigable it is necessary to note the gradually changing concept of navigability.

Under the old common law, the test was whether the stream was within the ebb and flow of the tide. However, in a country, such as the United States, abounding in large fresh water rivers and lakes, this test generally has been held inadequate. In Article IV of the famous Ordinance of 1787 providing an organic government for the territory of the United States northwest of the Ohio River, appears the following:

“The navigable waters leading into the Mississippi and Saint 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.”

And on February 10, 1932, the Congress of the United States amended Section 3 of the Rivers and Harbors Act by adding the following sentence:

“As used in this section the term ‘commerce’ shall include the use of waterways by seasonal passenger craft, yachts, house boats, fishing boats, motor boats, and other similar water craft, whether or not operated ^for hire.”

And in the second paragraph of the syllabus in the case of Hickok v. Hine, 23 Ohio St., 523, 13 Am. Rep., 255, this court held:

“2. A river is regarded as navigable which is capable of transporting the products of the country, or upon which commerce may be conducted; and its character as a highway is determined by its navigable capacity rather than by the frequency of its use for navigation. ’ ’

As did the lower courts, the defendants rely on the decision of this court in the later case of East Bay Sporting Club v. Miller, 118 Ohio St., 360, 161 N. E., 12, in which the second paragraph of the syllabus reads as follows:

“2. "Waters are navigable in law 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 upon water.”

However, in the opinion in that case it is said that “the question presented narrows itself to the proposition whether the waters in which defendants claim the right of fishing are a part of Sandusky Bay.” The defendants were individual nonowners who claimed the right to fish on the plaintiff’s private marsh lands through which ran two shallow streams having a varying depth of'but two tenths of a foot in some places— hardly navigable water. It was not a controversy between riparian owners, as in the instant case.

In a discussion of the change in the concept of navigability, the following summary appears in 56 American Jurisprudence, 648, Section 181:

“There is, however, much authority for the view, which has been spoken of as being the better rule, that it is not necessary that the water be capable of commerce of pecuniary value, and that boating or sailing for pleasure should be considered navigation as well as boating for mere pecuniary profit. And the expression is frequently used that navigability for pleasure is as sacred in the eye of the law as navigability for any other purpose. It has been held that the term ‘navigable,’ as used in a statute relating to the ownership of submerged land, includes waters which are naturally available for use by the public for boating, fishing, etc., although they may not be susceptible of use for general commercial navigation. ’ ’

In the case of United States v. Appalachian Electric Power Co., 311 U. S., 377, 85 L. Ed., 243, 61 S. Ct., 291, it was held that lack of commercial traffic is not a bar to a conclusion that the stream is navigable, where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation; that the navigability of a stream is to be determined on the basis, not only of its natural condition, but also of its possible availability for navigation after the making of reasonable improvements ; and that it is not necessary that such improvements be actually completed or even authorized.

In the case of Lamprey v. State, 52 Minn., 181, 53 N. W., 1139, 38 Am. St. Rep., 541, 18 L. R. A., 670, the court said:

“The division of waters into navigable and non-navigable is merely a method of dividing them into public and private, which is the more natural classification ; and the definition or test of navigability to be applied to our inland lakes must be sufficiently broad and liberal to include all the public uses, including boating for pleasure, for which such waters are adapted. So long as they continue capable of being put to any beneficial public use, they are public waters.”

And in the case of State v. Twiford, 136 N. C., 603, 48 S. E., 586, it was held:

“It is the navigability of the water that is the test, its accessibility by water and not accessibility by land —else whether bays, estuaries, creeks and rivers are publici juris would depend upon whether or not riparian owners have monopolized the ownership of the adjacent soil. ”

In a few states it has been held that even streams which are merely floatable and useful for logging purposes may be considered to be navigable.

In view of this trend of the law, is the stream in the instant case navigable at the location involved in the controversy?

According to the evidence the stream is approximately 120 feet wide at its mouth, and for a distance of about two miles the width averages from 80 to 90 feet. The depth, in contrast to that in the Miller case, supra, varies from six to 11 feet. These figures would seem to indicate navigability especially for the small pleasure craft rented by the parties to their customers. However, the defendants insist that a number of circumstances interfere. The stream is crossed by two bridges — one with a clearance of but 5% feet. At times the stream becomes partially clogged with dense vegetation, brush and other debris. On several occasions the defendants have employed a dredge to clear the channel at and near the mouth of the stream.

But in spite of these difficulties the plaintiff Sisco has operated his boat rental business for 14 years until stopped by the cables and fence constructed across the stream by the defendants.

Hence, this court is of the opinion that Beaver Creek is a navigable stream at the location in question. The judgment of the Court of Appeals is reversed, and final judgment is rendered for the plaintiffs.

Judgment reversed.

Matthias, Zimmerman, Bell and Tart, JJ., concur. Hart and Stewart, JJ., dissent.

Hart, J.,

dissenting. In the course of its per curiam opinion in the instant case, the Court of Appeals said:

“These actions originated in the Court of Common Pleas of Lorain County. They are equitable in nature, in which the appellants seek injunctive relief to compel •the removal of a cable and wire fence stretched across a stream of water known as ‘Beaver Creek’ at a place in Lorain County where the creek flows through the lands owned by the appellees, and then on into Lake Erie. One appellee, the father, owns the land on one side of the stream, and the other appellee, the son, owns the land on the opposite side of the stream, at the point where the barricade was erected through their joint efforts.

“The appellants own land on the stream above the barricade, and operate thereon commercial enterprises for the public in the nature of boat rentals, boat storage, and other services of a similar character. The appellees, on a much larger scale, likewise use the stream for a similar commercial business. The stream can now be used by the appellees and their customers from their places of business into the waters of Lake Erie. The obstruction precludes the appellants and their customers from using the stream below the barricade into Lake Erie. A successful operation of the business of all the parties requires free access to Lake Erie over the waters of the stream.

“Pursuant to trial in the lower court, a judgment was entered for the defendants, and the petitions of the plaintiffs were dismissed. From an appeal on questions of law and fact, this court now has the cases for decision following a trial de novo.

“The appellants, the upper riparian owners, state the question as follows:

“ ‘May an important river such as Beaver Creek River, which has the capacity for and has been used for commercial purposes by the owners of the riparian lands bordering thereon for the past 14 years and longer, including the defendants themselves, be arbitrarily blocked by the erection of a barrier through a conspiracy by the owners of separate parcels of land on opposite sides of the river and at a point downstream, to eliminate their competitors’ business and to destroy the value of the riparian land upstream?’

“It is established in Ohio that ‘the rivers of this state, to the extent that they are in fact navigable, are public highways,’ that the obstruction of a navigable stream, when it is used by the public, is a public nuisance, and that ‘where such nuisance works a private injury, the party injured may restrain its continuance by injunction.’ Hickok v. Hine, 23 Ohio St., 523, paragraphs one and three of the syllabus.

“To the contrary, however, the owner or owners of land comprising both banks and the bed of a non-navigable stream has the exclusive right to boating or traveling on the stream, and may enjoin trespassers from using the waters as an avenue of travel. East Bay Sporting Club v. Miller, 118 Ohio St., 360.

“With these general principles before us, we have analyzed the several hundreds of pages of record and exhibits, and reach the conclusion that the stream is not navigable in the sense that that word is used in Ohio law, because at no time did or could this stream, in its natural state, be used as a highway of commerce over which trade or travel could be conducted in the customary mode.

“While it is a fact that at the present time the stream is sufficient to accommodate small fishing and pleasure craft from Lake Erie to the property of the appellant furthest up stream — the property of appellant Sisco — this condition was created by artificial means, employed in most part by the appellees in the operation of their business. Beyond the Sisco property, however, any type of commercial navigation is and always has been impossible. Further, this stream originates from drainage ditches serving various farm lands in the vicinity of Oberlin, Ohio, and, as it meanders through several Lorain County townships, on its way to Lake Erie, it grows larger in volume, but at no place along its course, or at its start, are there lands open to the public from which persons can lawfully get onto the stream and engage in commerce. The only public access to the stream is at its mouth in Lake Erie.

“Property rights in a nonnavigable stream do not ehange where, at a time subsequent to the acquisition of those rights, the owners, by artificial means, increase the depth and width of the stream to accommodate small boats which are used for fishing and other pleasures incident thereto. The property rights so fixed are not lost to the owners who, in the manner above indicated, improve the usefulness of their lands.

“It appears to the members of this court that the test for determining whether or not a stream is navigable is well stated in Chisholm v. Caines, 67 F., 285, cited with approval by the Supreme Court of this state in East Bay Sporting Club v. Miller, supra, at page 370.

“Ohio cases, as well as cases generally throughout the states, agree that neither ‘depth, width, nor uninterrupted course, nor freedom from obstruction, nor constant supply of water, nor an unvarying floatable condition, nor all combined, would in themselves make a navigable water. * * * to make a body of water a public, navigable stream, it must be accessible to the public. The essential characteristic of a navigable stream is that it is, or is capable of becoming, a public highway * * * a means open to the public of passing from one place, where they have a right to be, to another, in which they have the same right.’ The above-quoted statements are from Chisholm v. Caines, supra, at page 292. The court in that case continues as follows (at page 294):

“ ‘All the cases concur in treating as the test of a navigable stream, that it is or can be used as a highway of commerce, over which trade or travel are or may be conducted in the customary modes of trade or travel on water. The Daniel Ball, 10 Wall., 557; Hickok v. Hine, 23 Ohio St., 523; Brown v. Chadbourne, 31 Me., 9. In order to be of use for the purposes of commerce, trade, or travel, the stream must be a means of intercourse and communication with points between which commerce, trade, or travel is conducted, and conducted by the public. The public may use any highway for any purpose of trade, travel, or pleasure. But it must be a highway.’

“By adopting the rule of Ohio and elsewhere that a stream must have the essential characteristics of a highway, with a means open to the public of lawfully getting onto the water highway and a means of lawfully getting off of it at a terminal, the members of this court are of the opinion that the evidence offered is not sufficient to sustain a right to the relief sought. ’ ’

With the foregoing statement of facts and analysis of the law applicable thereto, I fully agree.

Stewart, J., concurs in the foregoing dissenting opinion.  