Whose water is it?

The Natural State prides itself on its rivers and their recreational use, and one of the most famous kayak/canoe rivers is the Mulberry River. The Mulberry River is also the subject of one of, if not the most important, Arkansas Supreme Court decisions for recreational river users, State v. McIlroy.

In 1981, W.L. McIlroy, who owned 230 acres of land which the Mulberry River flowed through filed suit against a conservation group and two canoe rental companies to keep them off the stretch of the Mulberry River through his property. The State of Arkansas joined in on the side of the defendants. McIlroy’s claim was that as he owned the land on both sides of the stream and the stream was non-navigable, his rights in the stream were superior to those of the public.

McIlroy described the Mulberry as able to be waded by a man year round, at times unable to be floated for an entire year, and denied seeing a canoe there before 1974. Other neighboring landowners testified they also considered the Mulberry private property. However, multiple canoeists, neighbors and state officials testified that the river had for decades been used for swimming, fishing and floating and considered it open to the public. The Arkansas Supreme Court described it as an “intermediate stream”, somewhere between the lower White and Little Red, but larger than the many unfloatable small creeks and streams in Arkansas. The Court also noted that the original government plat showed the stream “meandering” and that meandering lines were prima facie evidence of navigability.

The Court summed up the testimony this way: “The facts presented prove that the Mulberry River at the point in question is capable of recreational use and has been used extensively for recreational purposes. We must now decide whether such a stream is navigable.”

The short version of the navigability test is a commercial test, the gist of which is whether a man with “sound common business sense” would rely on the river being useful at consistent times of the year to move product. The navigability is a function of the river’s usefulness for transportation at regular times of the year. The Court summed it up with “Therefore, a river is legally navigable if actually navigable and actually navigable if commercially valuable.”

Where this case became significant for those of us who are not moving fur or crops downstream, is the second half of the decision. The Court notes that it had previously been concerned with truly commercial uses of streams such as those mentioned above. However, after citing other states who have dealt with the issue of commercial/recreational uses and come down on the side of adding recreation to the definition, the Court simply concludes Arkansas will as well without much discussion.

The Court, after finding for the State and the other Defendants that the river was in fact navigable, closes somewhat oddly, noting testimony from McIlroy that he brought the suit because people were littering and destroying his property. The Court acknowledged this abuse, but noted:

” While there are laws prohibiting such misconduct, every branch of Arkansas’ government should be more aware of its duty to keep Arkansas, which is a beautiful state, a good place to live. No doubt the state cannot alone solve such a problem, it requires some individual effort of the people. Nonetheless, we can no more close a public waterway because some of those who use it annoy nearby property owners, than we could close a public highway for similar reasons.

In any event, the state sought a decision that would protect its right to this stream. With that right, which we now recognize, goes a responsibility to keep it as God made it.”

A significant victory for floaters and fishermen, a short admonishment to keep it clean, and a significant loss of control for adjacent landowners.