Navigational Law – Clear as Mud.
1. Basic Description
Indiana law is somewhat
confusing as it applies to recreational boaters. Boaters may clearly use larger
navigable streams where the state owns the streambed, as well as smaller
streams that have been statutorily designated as recreational rivers. Whether
smaller navigable streams, which have privately owned beds, may be used for
boating is presently unclear.
2. State Test of Navigability
An Indiana statute defines which streams are
navigable as streams that have been declared navigable or a public highway by
at least one of the following:
- a court;
- the Indiana
- the United States Army Corp of Engineers;
- the Federal Energy Regulatory Commission;
- a board of county commissioners under IC 14-29-1-2;
- the commission following a completed proceeding under
In addition, a list of declared
navigable streams, called the "Roster of Indiana Waterways Declared
Navigable" is set forth at 15 IR 2385. A board of county commissioners may
declare a stream navigable upon the petition of at least 24 freeholders in the
county that reside within the vicinity of the stream. The public also has
rights in inland waterways, which are defined as public waters that are not
Indiana courts have recognized public rights
in rivers that do not pass the federal title test. One case defined navigable
streams as those with sufficient capacity for useful purposes of navigation.
Useful purposes are trade and travel in the ordinary modes. The courts
have recognized that some streams are navigable for certain kinds of inferior
craft, and these streams are subject to the jurisdiction of the state. But
navigation by canoes and the floating of timber is not sufficient to establish the
navigability of a river. Therefore, the exact test for determining which rivers
are subject to exclusive state jurisdiction is not clear. Additionally, it
should be noted that Neaderhouser was decided over 130 years ago.
Despite the fact that navigability
has been discussed by Indiana authorities, the
law determining which Indiana
streams are open to recreational boating is far from clear. The exception to
this is any stream designated as a recreational stream.
3. Extent of Public Rights in
The state owns the streambed of
navigable streams under the federal title test to the low water mark. In such
streams the public has the right to boat, wade, fish, etc.; however, the public
does not have the right to moor a boat to a tree on the bank of a navigable
river. This casts some doubt on whether there exists a right to portage in
these streams. In streams which are navigable, but the bed is privately owned,
the public does not have the right to fish. The right to portage in streams
where the bed is privately owned is doubtful.
4. Statutes Governing Landowner
Indiana's recreational use statute (Ind.
Code Ann. § 14-2-6-3) was passed in 1969. This law does not specify
whether the landowner has a duty to keep the property safe or a duty to warn.
It does not require a landowner to provide an assurance of safety. In general,
this law grants landowners broad immunity from liability for personal injuries
or property damage suffered by recreationists on the owner?s land. However, the
law does not protect the landowner from liability for willful or wanton
misconduct, and does not protect the landowner if a fee is charged for the use
of the property.
Indiana's tort claims act, which defines the
scope of the government?s liability, is detailed in the Indiana Tort Claims
Act, Ind. Code § 34-4-16.5-1 et seq.
Indiana has established a program to
designate streams as natural, scenic or recreational and to acquire adjacent
lands. Boaters can use recreational rivers, and probably natural and
The Kankakee River has been
declared navigable from Indiana?s border with Michigan to the border with Illinois.
Criminal trespass on private land
is a class A misdemeanor and occurs where oral or written notice, including
posting of signs, has been given indicating that entry is forbidden.