A river crosses it, and therefore many disputes

Looking out the window at a frozen, snowy world, it’s a little hard to imagine floating down a river in a canoe on a hot summer day.

But that’s what a lot of people like to do when the seasons change.

Nevertheless, the love of floating recreation on a beautiful river in the good old days of summer is a source of controversy in some areas.

Take the DuPage River in Illinois, for example, a beautiful lake for floating that covers a 63-mile course through the western suburbs of Chicago,

A recent story in the American Bar Association Journal speaks of a dispute between those who like to cross the DuPage River and those who own the land around it.

Water recreation enthusiasts point to a historic legal trend to, while scrupulously respecting real estate rights and the right of property owners to exclude trespassers, to treat waterways as public arteries of travel, recreation and commerce despite private ownership of adjacent properties.

Yet a popular floating river in a populated area like suburban Chicago raises different practical issues than a rural river carved into the hills, rocks, and trees of the Ozarks of southern Missouri.

And landowners along the DuPage River in suburban Chicago are upset about floaters in their area who are drunken, noisy bedbugs who they say are disrupting their peaceful enjoyment of their riverside paradise.

According to a spokesperson for the Illinois Department of Natural Resources, the DuPage River is technically not classified as “navigable” – even though it really is and has been used for navigation, travel and recreation for many years. years – and so it is a private river. waterway not subject to the right of use by the public for recreational purposes.

And, according to this spokesman, it can only be converted to “seaworthy” by the promulgation of a petition to establish proof that it is seaworthy, so as to change its classification.

But states differ on these issues.

In 1954, the Missouri Supreme Court ruled on these issues in our good state, in a case in which the plaintiff and his wife took a canoe down the Meramec River, fishing and floating through land belonging to various owners. en route, when plaintiff was stopped by defendant from the river bank, who claimed he owned the waterway, and that plaintiff was a trespasser.

The defendant had also placed a barricade on the river in an attempt to thwart those who would float the river through the defendant’s property, and demanded that the plaintiff and his wife go up the river and away from his land.

The plaintiff provided his understanding that he was free to float down the river and fish and enjoy the waterway, and walked around the defendant’s barricade, and he went down the river.

He also filed a lawsuit against the defendant, seeking a court declaration that the river was a public thoroughfare on which he had the right to float, fish and enjoy.

The case made its way to the Missouri Supreme Court.

The court said the case hinged on whether the river was a ‘navigable river’ over whether it should be treated as a public road, a term still under scrutiny in today’s DuPage River controversy. today.

However, in reviewing the various tests to determine whether a waterway is navigable or not, our Missouri Supreme Court decided not to rely on a classification assigned by a state or federal agency as to navigability, but instead derived a test which, for a river to be deemed navigable for the purposes of being a public thoroughfare, the court declared that “the capacity for use by the public for the purposes of transportation and commerce constitutes the true test of navigability of a river “.

And even though the Meramac River may for some purposes be considered non-navigable so that the defendant landowner may be deemed to own the land up to the center of the river, the court said that because the river was really navigable in fact, the defendant’s right of ownership is subject to the use of the river by floating fishermen like the plaintiff, including its banks necessary or expeditious for travel on the water, and by the public who have the right to enjoy it as a public road.

And so, the right to travel on the rivers of our state is not in question.

Of course, our floating rivers in Missouri are generally rural, unlike the DuPage River that runs through suburban Chicago. I’m sure that’s a factor in the policies that differ between states on this.

Ken Garten is a lawyer from Blue Springs. Email him at [email protected]

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