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Show 122 NAVIGABLE WATERS The South Dakota Supreme Court has broadened definitions of navigable waters to include "waters not navigable in the ordinary sense."100 Rather, navigability is made to depend upon the natural availability of waters for public purposes-including rowing, fishing, fowling, bathing, and the like101 - taking into consideration their natural character and surroundings. Under this view, to say that stream or lake waters are public is equivalent to saying that they are navigable.102 In each of the three cited cases in which this definition was employed, the court held that the lake involved was navigable and that its bed was owned by the State rather than the riparian landowners. However, to the extent that this definition may have been applied for the purpose of determining whether title to the bed underlying particular waters passed from the Federal Government to the State upon statehood, it may have been erroneous, as it is a broader definition than the controlling Federal criteria of navigability for such purposes discussed above.103 Nevertheless, it apparently could generally be effective to preclude owners of riparian lands along such waters that are nonnavigable by Federal criteria from acquiring ownership of the bed if they hold title under Federal patents issued after statehood.104 But pleasure. At one point, the court mentioned that the river at one time had been used for commercial log floatage. Id. at 935. But since such commercial use was not alluded to in the quoted "question" posed by tne court, or otherwise referred to, it may be doubted whether the court made it an element of its test of navigabihty for public fishing purposes. See also Bohn v. Albertson, 107 Cal. App. (2d) 738, 238 Pac. (2d) 128, 132-135, 139-140 (1951). A recent Washington case held that the public had rights of "fishing, boating, swimming, water skiing, and other related recreational purposes generally regarded as corollary to the right of navigation and the use of public waters" over privately owned portions of the bed of a navigable lake during the times they are submerged. The navigability of the lake involved was conceded and not in issue. Wilbour v. Gallager,____Wash. (2d)___,462 Pac. (2d) 232, 233, 239 (1969). 100Hildebrand v. Knapp, 65 S. Dak. 414, 417, 274 N. W. 821 (1937). 101 In this regard, see also Anderson v. Ray, 37 S. Dak. 17, 21, 156 N. W. 591 (1916). 102In this regard, see also Flisrand v. Madson, 35 S. Dak. 457, 469,152 N. W. 796 (1915). 103 See Johnson, R. W., and Austin, R. A., Jr., "Recreational Rights and Titles to Beds in Western Lakes and Streams," 7 Nat. Res. J. 1, 32 (1967). See also United States v. Oregon, 295 U.S. 1, 14, 26-29 (1935), supra note 71, which dealt with an Oregon statute. 104In United States v. Oregon, 295 U. S. 1, 27-28 (1935), which dealt with Federal grants after statehood of lands adjoining a non-navigable watercourse by Federal criteria, the United States Supreme Court said that while Federal, not State, laws control the disposition of titles to Federal lands, the construction of Federal grants may involve consideration of State law "insofar as it may be determined as a matter of federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances." It added that "if its intention be not otherwise shown it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies." |
