concurring in part and dissenting in part.
{¶ 115} I concur in the majority decision except for its holding regarding the recreational use of Lake Rockwell. I concur reluctantly in this court’s determination as to the reasonable aggregate flow of water from Lake Rockwell. Instead of 8.1 to 9.5 MGD, I believe that the aggregate flow from Lake Rockwell should be 10.9 MGD, which, the trial court stated, testimony showed to be the natural flow of the Cuyahoga River. I question whether an aggregate release of 10.9 MGD would unreasonably impair the ability of Akron to fulfill its water commitments. Ultimately, that is a factual question, and I cannot say that the trial court’s conclusion is against the manifest weight of the evidence.
{¶ 116} I dissent with regard to the majority’s determination of the navigability of Lake Rockwell. Modern Ohio law regarding navigability is set forth in the syllabus of Coleman v. Schaeffer (1955), 163 Ohio St. 202, 56 O.O. 214, 126 N.E.2d 444, which reads:
{¶ 117} “1. In determining the navigability of a stream, consideration may be given to its availability for boating or sailing for pleasure and recreation as well as for pecuniary profit.
{¶ 118} “2. Such navigability may be determined on the basis of not only the natural condition of the stream but also of its availability for navigation after the making of reasonable improvements.
{¶ 119} “3. In determining the navigability of a stream, consideration may be given to its accessibility by public termini, but the presence or absence of such termini is not conclusive.”
{¶ 120} In Coleman, the court determined that Beaver Creek, which flowed into Lake Erie near Lorain, was a navigable watercourse, even though at two miles from its mouth, “the creek became shallow and filled with vegetation and debris to the extent that even the smallest vessel could not navigate it.” Mentor Harbor Yachting Club v. Mentor Lagoons, Inc. (1959), 170 Ohio St. 193, 196, 10 *130O.O.2d 131, 163 N.E.2d 373. In Mentor Harbor, this court found that-a channel connecting an inland body of water to Lake Erie had been navigable in its previous natural state even though at times that channel had been obstructed by a sand bar. In Ohio Water Serv. Co. v. Ressler (1962), 173 Ohio St. 33, 18 O.O.2d 243, 180 N.E.2d 2, this court found the privately owned reservoir in question, Lake Evans, to be nonnavigable because it was not connected to any navigable waters — it sat alone on privately owned land, connected to another reservoir by a ditch.
{¶ 121} In this case, we are not dealing with narrow channels occasionally obscured by sandbars or with drainage ditches or marshes. We are dealing with the dammed Cuyahoga River. The Cuyahoga is a major Ohio watercourse. Its significance for this state has been recognized since colonial times — in 1765, George Washington wrote, ‘Where the Cuyahoga River flows into Lake Erie shall rise a community of vast commercial importance.”- http://www.britannica.com/ebi/article-198791.
{¶ 122} This court has not considered a navigability case like this before, in which a navigable watercourse has been dammed. Here, the trial court made the factual determination that the Cuyahoga River has a capacity for recreational boating both above and below Lake Rockwell. The majority’s citation of Lembeck v. Nye (1890), 47 Ohio St. 336, 24 N.E. 686, is inapposite. Like Ohio Water Serv., Lembeck is a case concerning an inland lake connected to no other navigable bodies of water.
{¶ 123} Lake Rockwell is the impoundment of the upper Cuyahoga, a navigable river. I would hold that the impoundment of a navigable watercourse is also navigable.
{¶ 124} The public has the right to use navigable watercourses. Pursuant to R.C. 743.17 and 743.25, a municipal corporation has the power to prevent or punish the pollution of its water supply. The record demonstrates that Akron’s prohibition of all navigation on Lake Rockwell is unreasonable. The prohibition on all boating does not bear a substantial relationship to public health, safety, and general welfare and is an improper use of Akron’s police power. Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 72, 9 OBR 273, 458 N.E.2d 852.
{¶ 125} The trial court found that nonmotorized boating did not create a credible threat to Akron’s water supply. State Route 14, which, according to the trial court, is a major truck route and heavily traveled roadway, runs across Lake Rockwell, destroying any characterization of Lake Rockwell as an Edenic pool untouched by the unclean hand of modern man. The court also found that public recreational boating is allowed on many other publicly controlled lakes that provide drinking water for Ohioans. The court concluded as a factual matter that *131“public non-motorized boating access to Lake Rockwell will not increase the likelihood of harm to the public water supply or Lake Rockwell.” I believe that the trial court got it right.
Resnicic and Lundberg Stratton, JJ., concur in the foregoing opinion.*132APPENDIX A
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*133APPENDIX B
Propositions of Law of Appellant
{¶ 126} Proposition of Law No. I: The State’s grant to the city of Akron of the perpetual right to divert the Cuyahoga River at any point and to use its water for all lawful waterworks purposes, with no limitation on the quantity used and no obligation to maintain flow in any section of the river upstream from its connection to the Ohio canal, conferred on that City all of the powers and immunities of the State to control those sections of that river and to divert all of its water.
{¶ 127} Proposition of Law No. II: The State’s grant also applies to all tributaries of the Cuyahoga River.
{¶ 128} Proposition of Law No. Ill: Once a municipality has established its use of the water of a river for a public water supply, another municipality may not thereafter acquire downstream property and assert riparian rights to alter the first municipality’s use.
{¶ 129} Proposition of Law No. IV: A city’s appropriation of all water originating above the site of a dam, and of all rights and interest in that water, together with its taking and diversion of that water, eliminates all common law rights of downstream riparian owners to future flow of that water past their land, and those owners or their successors must either act to recover their property rights within 21 years from the appropriation and taking or seek compensation within six years for that reduction of their riparian rights, and thereafter they are barred from any claim arising from loss or flow of that water.
{¶ 130} Proposition of Law No. V: After the expiration of 21 years with no challenge by a downstream riparian owner or his successor in interest to the open, notorious and continuous seizure, interruption of flow and exercise of control of the water of a river at the site of a dam, the rights associated with the riparian property to require the water originating above that dam site to flow past that downstream property are transferred by operation of law to the party exercising that control.
{¶ 131} Proposition of Law No. VI: A city’s appropriation of all water in a river or that may flow into it, above a point on that river, precludes all property owners upstream of that point from thereafter removing water without return above that point, and such a removal of water violates a property right of the appropriating city.
{¶ 132} Proposition of Law No. VII: When one municipality fails to assert a known claim to challenge the rights and obligations of another municipality for a period of over 80 years, during which the second municipality has made substantial investments and incurred obligations to third parties in good faith reliance on *134its stated legal rights, the first municipality is precluded by both laches and statutes of limitations from asserting that claim.
{¶ 133} Proposition of Law No. VIII: A final judgment after a trial on the merits, denying an injunction to preclude both an appropriation by a city of all water originating above a designated point on a river and that city’s diversion of the water and elimination of the flow in the river below that point, precludes by res judicata a subsequent tort claim by the same plaintiff that is premised on the city’s actual control, diversion and use of the appropriated water and reduction of flow in the river.
{¶ 134} Proposition of Law No. IX: Where a trial court finds that a riparian owner’s use of water has been reasonable and that there has been no showing of either irreparable injury or threat of impending injury to other riparian owners, and those conclusions are affirmed on appeal, the trial court’s refusal to issue a declaratory judgment specifying any different hypothetical circumstances that could be viewed in the future as unreasonable does not constitute an abuse of discretion.
Propositions of Law of Cross-Appellees
{¶ 135} Proposition of Law No. I: Where a deed conveys only the riparian rights necessary to supply water for the grantee and its residents, the grantor’s successors can enforce the remaining riparian rights.
{¶ 136} Proposition of Law No. II: An upstream riparian’s disproportionate impoundment of water that leaves insufficient flow for downstream users and the river’s basic functions is a nuisance and an interference with the use of water requiring a remedy that restores the habitat and basic functions of the river.
{¶ 137} Proposition of Law No. Ill: Where a constant flow of at least 8.5 MGD is essential for the survival of aquatic life and stable downstream permit limits, an upstream riparian must maintain such a constant flow in the river.
{¶ 138} Proposition of Law No. IV: An injunction must issue where tortious conduct is ongoing or likely to resume.
{¶ 139} Proposition of Law No. V: A municipality’s diversion of water from the Cuyahoga River basin to the Ohio River basin without a permit violates R.C. 1501.32.
{¶ 140} Proposition of Law No. VI: A municipality has no authority to adopt a regulation closing a navigable river in defiance of the state’s navigational easement held in trust for the public.
Jones Day, J. Kevin Cogan, Jack A. Van Kley, and Jonathan K. Stock; James R. Silver, City of Kent Law Director; Virgil E. Arrington, City of Cuyahoga Falls Law Director; Amer Cunningham Co., L.P.A., and Jack Morrison Jr., Munroe Falls Law Director; Robert W. Heydorn, Village of Silver Lake Solicitor, for appellees and cross-appellant. Max Rothal, Akron Director of Law, and Cheri B. Carroll; Thompson Hine, L.L.P., Leslie W. Jacobs, Robert F. Ware, and Louis L. McMahon, for appellant and cross-appellee. Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrieh, and Robert F. Cathcart; Frank J. Cimino, City of Ravenna Law Director, for appellee city of Ravenna. Barry M. Byron, Stephen L. Byron, and John Gotherman, for amicus curiae, Ohio Municipal Attorneys Association.