concurring and dissenting. I cannot join in the court’s new definition of navigability, even though I concur in the reversal of the decree in this case. My disagreement is based upon the court’s departure from two overriding and interrelated legal principles, i.e., the effect of a rule of property and the vesting of property rights.
Never before in Arkansas, has determining the navigability of a stream been essentially a matter of deciding if the water is public or private property. Quite the reverse — the rights of riparian owners have depended upon the test of navigability. Although it may be rather loosely said that a body of water that has been meandered in a government survey of the stream is prima facie navigable, the question is determined under local law and not by the surveyors. In Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W. 2d 892, we treated this matter by reference to Harrison v. Fite, 78 C.C.A. 447, 148 F. 781 (1906), saying:
***This case involved the navigability of Big Lake and Little River in this State, and affirmed the decree of the circuit court of the United States for the Eastern District of Arkansas (148 Fed. 781) holding that those waters were not navigable. Much that was said in the opinion in that case is relevant here, and upon the question of meandered streams it was there said: “The action of the government surveyors in meandering a body of water or in surveying its bed is to be considered as evidence upon the question of its navigability or unnavigability at the time; but it is not conclusive. The surveyors are invested with no power to foreclose inquiry into the true character of the water. If the United States has disposed of lands bordering upon a meandered unnavigable water course or lake, by a patent containing no reservations, and there is nothing else indicating an intention to withhold title to the lands within the meander lines (Niles v. Cedar Point Club, 175 U.S. 300, 20 Sup. Ct. 124, 44 L. Ed. 171) it has nothing left to convey; and whether the title to the bed of the waters is in the State or passes to the grantee in the patent is determined by the local law. (Lamprey v. Minnesota, 52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 679, 680, 38 Am. St. Rep. 541). ***Courts take judicial notice of the navigable character of our important rivers and inland lakes — those that are so within our common knowledge; but there are many of such insignificant capacity and doubtful utility that the question, being one of fact, is to be determined by the evidence produced, and in such case the burden of proof rests upon him who asserts the existence of the public servitude.”
The majority, however, makes too much of the statement that the fact that surveyors meandered a stream is prima facie evidence of navigability. If so, that prima facie effect seems to vanish when contrary evidence is introduced. It is quite clear that the burden of proving navigability is upon the party asserting it, and it seems that the burden of proving the public servitude is upon the party asserting its existence, regardless of the fact that the body of water is meandered in the government survey. Little Rock Miss. River & Tex. R.R. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277; Lutesville Sand & Gravel Co. v. McLaughlin, supra; Harrison v. Fite, supra. The effect of those decisions really is that the fact that the surveyors meandered the stream is of evidentiary value on the issue. The real significance of that fact is put in proper perspective in McGahhey v. McCollum, 207 Ark. 180, 179 S.W. 2d 661, where we said that it is merely a circumstance tending to show navigability. It is also clear that once navigable does not mean always navigable. Five Lakes Outing Club, Inc. v. Horseshoe Lake Protective Ass’n., 226 Ark. 136, 288 S.W. 2d 942; Parker v. Moore, 222 Ark. 811, 262 S.W. 2d 891.
The majority treatment of Barboro v. Boyle, supra, as a prophecy of a new test of navigability, is certainly not warranted, in view of the fact that this court fifteen years later, in Lutesville, treated that case as an application and approval of the long-standing Arkansas test of navigability. The language quoted from Barboro in the majority opinion is nothing more or less than a recitation of uses that might be made of the waters of Horseshoe Lake as a navigable stream. It followed a statement that it was the policy of this state to encourage the use of its water courses for any useful or beneficial purpose. This court certainly was not prophesying a new or modern test of navigability in Barboro, and any notion that it was is dispelled, not only by the statement in Lutesville, but by the opinion in Barboro itself, in which it was held that Horseshoe Lake was navigable within the meaning and spirit of our former decisions, because it was susceptible of use for commercial navigation, even though it had never been utilized for that purpose except at irregular intervals. In 1953, this court again recognized the viability of the test of commercial potential. Parker v. Moore, 222 Ark. 811, 262 S.W. 2d 891. We applied the Barboro test as late as 1973 in Hayes v. State, 254 Ark. 680, 496 S.W. 2d 372.
We have never, in any subsequent decision, prior to today’s, considered that Barboro did more than hold that susceptibility to use for commercial navigation, rather than a history of such use, is the true test of navigability. This was recognized in McGahhey v. McCollum, supra. In Barboro itself, we merely gave effect to the holding in Little Rock, Miss. River & Tex. R.R. Co. v. Brooks, supra, that the test was “usefulness” of the stream to the population of its banks as a means of carrying off the products of their fields and forests or bringing to them articles of merchandise.
In 1930, long after the decision in Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378, we said that the law on the subject had long been at rest in this state and pointed out that the test announced in Little Rock, Miss. River & Tex. Rr. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277, had been consistently followed. That test, as quoted in and approved in both Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W. 2d 892, and Barboro v. Boyle, supra, was:
*** Nor is it any objection to the public easement for navigation, that riparian proprietors of lands, along fresh waters, own to the thread of the stream. Nor is it necessary that the stream should be capable of floating boats or rafts the whole, or even the greater part of the year. Upon the other hand, it is not sufficient to impress navigable character that there may be extraordinary times of transient freshets, when boats might be floated out. For, if this were so, almost all insignificant streams would be navigable. The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, although the annual time may not be very long. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times cannot be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is that, that usefulness for purposes of transportation, for rafts, boats, or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round, (citing authorities).
The rights of riparian owners have always been considered as vested property rights in this state. As early as 1927, we considered that it was well settled that owners of land bordering on a nonnavigable stream, the boundary lines of which were meandered by the government survey, acquired title to the middle or thread of the stream. Kilgo v. Cook, 174 Ark. 432, 295 S.W. 355; Goforth v. Wilson, 208 Ark. 35, 184 S.W. 2d 814. The ownership in fee and control of a riparian owner extend to that part of the surface of the stream that lies above that portion of the bed owned by him. Medlock v. Galbreath, 208 Ark. 681, 187 S.W. 2d 545.
Where persons have acquired property rights upon the faith and credit of prior judicial decisions, those decisions and the rights acquired thereunder should not be disturbed. Hobbs v. Lenon, 191 Ark. 509, 87 S.W. 2d 6. At least one owner, Al Weiderkehr, acquired property on the Mulberry thinking that the waters were private, and he was justified in doing so under our prior decisions.
A settled legal principle governing the ownership and devolution of property is a rule of property. Decisions of the highest court of a state when they relate to and settle some principle of local law directly applicable to title are rules of property. Gibson v. Talley, 206 Ark. 1, 174 S.W. 2d 551. A rule of property so established should not be disturbed. Fisher v. Cowan, 205 Ark. 722, 170 S.W. 2d 603.
The test of navigability is the means of determining the property rights of riparian owners. As such it is a rule of property.1 To repudiate this rule of property by judicial decision will have the effect of invalidating titles that were acquired in reliance upon the rule and such a change, if desirable, should be brought about by legislation, which operates only prospectively and cannot upset titles already vested. See Eubanks v. McDonald, 225 Ark. 470, 283 S.W. 2d 166; Pyron v. Blanscet, 218 Ark. 696, 238 S.W. 2d 636. We are not free to disregard a rule of property. Bishop v. Williams, 221 Ark. 617, 255 S.W. 2d 171. Where our holdings have become a rule of property, they must not be overruled retroactively or retrospectively. O’Brien v. Atlas Finance Co., 223 Ark. 176, 264 S.W. 2d 839; Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973.
Even a legislative enactment cannot destroy vested rights which riparian owners have in a nonnavigable stream. State v. Brace, 76 N.D. 314, 36 N.W. 2d 330 (1949); 65 CJS Navigable Waters, § 76b, p. 78. And the legislature could not by a retroactive definition of navigability transfer to the state a property right either in a body of water or the bed thereof that has been previously acquired by a private owner. Ozark-Mahoning Co. v. State, 76 N.D. 464, 37 N.W. 2d 488 (1949); State v. Brace, supra; 65 CJS, Navigable Waters, § 7b, 79. To do so without compensation is unthinkable. Ozark-Mahoning Co. v. State, supra; State v. Brace, supra; 78 Am. Jur. 2d 517, § 68 and cases cited. See 65 CJS, Navigable Waters, § 7b, 78; Downes v. Crosby Chemicals, Inc., 234 So. 2d 916 (Miss., 1970). What this court said over a century ago in Martin Ex Parte, 13 Ark. 198, when we had no specific constitutional prohibition against the taking of private property without just compensation, is particularly appropriate here, viz:
*** The right of the citizen to acquire, possess and protect property, thus guaranteed to all by the fundamental law, being a limitation imposed by the people upon the government of their own creation, and designed to protect the weak against the strong, the minority against the majority, would be of little avail and but an empty sound, if the legislative department possesses the power to divest him of it without adequate compensation, through caprice, or even in the exercise of honest but misguided judgment, or, upon that most dangerous of all pretences, for State reasons, and the policy of promoting what may be deemed the public good.
The adoption of a so-called modern test changes a rule of property and apparently divests titles that have been vested under the prior test. In Arkansas, unlike communist states, it is the right of private property, not the rights of the public, that rises above constitutional sanction. Art. 2, § 22, Constitution of Arkansas. This is one of the fundamental distinctions between our system and the communistic form of government and its focus is directed to public rights asserted in streams. Downes v. Crosby Chemicals, Inc., supra. The statement that the right of property is before and higher than any constitutional sanction is more than a slogan. It has found application in our decisions. See City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W. 2d 94; Arkansas State Highway Com’n. v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387; Blundell v. City of West Helena, 258 Ark. 123, 522 S.W. 2d 661; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628; City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W. 2d 486; Sheet Metal Workers Int. Ass’n. v. E. W. Daniels Plumbing & Heating Co., 223 Ark. 48, 264 S.W. 2d 597; Young v. Gurdon, 169 Ark. 399, 275 S.W. 890. The prohibition against the taking, appropriation or damaging of private property without just compensation is binding on all branches of government. The judicial branch is no more vested with the power to take, appropriate or damage the established property rights of individuals without compensating them than is the executive branch. And yet the apparent effect of this decision accomplishes that very result. I submit that, insofar as titles vested under the test of navigability applied up until this very date, the change of the test is a violation of due process of law under both the state and federal constitutions, as well as of Art. 2, §§22 and 23 of the Arkansas constitution. Judicial submission to public clamor is not in keeping with constitutional government.
Less than four months ago, the Supreme Court of the United States held that the government could not give the public a right of access, or prevent the owners from denying public access, to waters which had been private property under state law, without paying just compensation to the owners, even though the character of the waters had been changed from non-navigable to navigable. Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979). What we said in Shellnutt v. Arkansas State Game & Fish Com’n., 222 Ark. 25, 258 S.W. 2d 570, applies here, viz:
It is not necessary that the property should be completely taken in order to bring the case within the protection of this Constitutional guaranty.6 ***
The matter had been put in sharp focus in Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 26 S.W. 2d 57, where we said:
*** Riparian rights inhere in the owner of the soil and are part and parcel of the land itself, and are vested and valuable rights which no more may be destroyed or impaired than any other part of a freehold.
It is distressing to me that the concern of this court for private property rights so recently and forcibly applied in such cases as Loyd v. Southwest Arkansas Utilities Corp., 264 Ark. 818, 580 S.W. 2d 935, and Robinson v. Arkansas State Game & Fish Com’n., 263 Ark. 462, 565 S.W. 2d 433, seems to have stopped at the banks of the Mulberry River (Creek?).
Acquisition by prescription, or adverse possession, cannot be based upon hunting and fishing (or presumably swimming) upon the stream. This question was put to rest in State ex rel Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014, where we said:
*** Occasional or oft-repeated incursion upon the lands of another for the purpose of hunting and fishing does not signify any intention to appropriate the lands to one’s own use. The act of hunting and fishing on the unenclosed lands of another is not an act of possession. It does not denote any purpose to hold the same adversely, and thereby exclude the owner from dominion over his property, and it does not have any such effect. ***
See also, Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378; Medlock v. Galbreath, 208 Ark. 681, 187 S.W. 2d 545. On the other hand, any use of the water of a nonnavigable stream for boating purposes by one other than the owner is an infringement of the rights of the owner. See Medlock v. Galbreath, supra.
I find that the record discloses that the public has acquired an easement to use of the Mulberry River across the lands of the appellees by prescription just as fully as they would have acquired an easement for vehicular traffic across their riparian lands by adverse use for more than seven years after appellees should have known that the public use was adverse. That such an easement may be acquired by prescription was recognized in Buffalo River Conservation & Recreation Council v. National Park Service, 558 F. 2d 1342 (8 Cir., 1977), in reliance upon Clinton Chamber of Commerce v. Jacobs, 212 Ark. 776, 207 S.W. 2d 616 (1948); Howard v. State, 47 Ark. 431, 2 S.W. 331; Patton v. State, 50 Ark. 53, 6 S.W. 227; McClain [McLain] v. Keel, 135 Ark. 496, 205 S.W. 894.
In 1967, W. R. McIlroy and his brother Grady, acquired the farm located at the low water bridge on Mulberry Creek from their father who died July 9, 1971. The farm had been owned by someone in their immediate family since 1927. A crop has been planted on it each spring. Cattle have been kept on the farm and a portion of it is in pasture. There were three houses and there were sharecroppers who lived on the land. A man named James Jones presently lives in a house on the farm that is over 100 years old. Activity on the river can be observed from portions of the McIlroy fields.
There have been at least one, sometimes two or three, scheduled floats on the Mulberry River conducted by the Ozark Society every year beginning with the summer of 1967 and extending through the winter of 1977-78. Harry Crisson had floated through the McIlroy property in April of each of the years 1965, 1967, 1972 and 1973. In 1965, there were 19 or 20 people on the same trip. Nancy Jack, a freelance writer, had floated through the property five times. On the first trip, which was in 1964, 20 people were with her. On the second trip in May, 1965, 19 people were with her. In 1967, there were about 26 people on the trip. Curtis Childers, who said he had been on the Mulberry a thousand times in his 66 years, testified that people commonly used the Mulberry. He recalled boating on the Mulberry from the “thirties” until the present. He first began noticing canoes on the river in 1967 and had seen them every year since then. At first there would be one or two on one day and three or four the next, but there are a “bunch more” now. He felt that it was the tradition of the area to float without permission. Donald Rice of Altus had floated through the property two or three times a year beginning in 1960 or 1961. William E. Keith, Jr., Chief of the Fisheries Divion of the Arkansas Game & Fish Commission, testified that fish had been “stocked” periodically at the low water bridge from 1952 to 1977. Douglas Tims first floated through the McIlroy property in April, 1972, and had floated it about 30 times a year since then. Arthur Foy Evans, a Gravette dentist, first floated through the McIlroy property in 1967 and, except for two years that he was in military service, floated the river through the property every year thereafter. Bob McCoy had floated through the property four or five times during the past eight years. Harold Hedges of Concord kepi logs of his floats. He had floated through the property on the following dates: Oct. 20 and 21, 1952; April 19, 1964; April 3 and 4, 1965; May 31, 1965; April 29 and 30, 1967; April 28 and 29, 1969. On the last date, he had lead a party of 20 or 25 people on a three-day Mulberry excusión at the request of the Forest Service. Leonard Heman had floated through the property on May 31, 1965 and in April, 1967, with 10 to 20 persons. Norman C. Preston had floated through the property in April, 1964 and May, 1965. There were 12 other people with him on the first trip and 23 on the second. Ray Fuller floated through the property in 1967 and once each spring over the next nine years. Melvin Smith floated through the property in 1964. His next trip was in April, 1965, as one of 18 people. In May of 1967, he again floated through the property in a party of eight. His next trip was in 1972. He said that in 1973 he was one of a party of 11 people who floated through the property. In 1975, he was in a float party of 30 people in 16 canoes. Dr. John Ewing first floated through the property in May, 1965 and averaged two trips a year until five years prior to trial, when he moved to Ozark and took the float trips more frequently. Fasie Torix had floated through the property 10 to 20 times per year over the past 30 years. Jesse Jones, who had lived along the river for 13 years, first saw a canoe on the river in the early 1950’s. He said that canoes had been coming through since 1966, and that the canoe traffic had increased every year. Joseph Acuff had a record of 12 float trips spanning the years 1965 through 1976. On most of the trips, the low water bridge was either the “put-in” point or the “take-out” point.
Gary Turner had floated through the property several times a year. A shuttle service for canoeists was started by his father at the father’s grocery store and service station in the late 1950’s or early 1960’s. The operation continued until a year or two before the trial. Over the period of time, the Turners shuttled over 1000 cars.
David Thrasher, a Fayetteville engineer who is president of the Arkansas Canoe Club, first floated through the property in 1970, and has averaged two or three trips per year since then. Stewart Noland was a member of parties numbering 2 to 12 persons which had floated through the property nearly every spring beginning in 1971. He had taken 2 such canoe trips in the fall.
The notoriety of the use made of the stream is evidenced by the publication of “The Float Streams of Arkansas,” beginning in the spring of 1978 by the Arkansas Game & Fish Commission and the Arkansas Department of Parks & Tourism, listing the Mulberry River for a distance of 55 miles from the Arkansas River as one of those streams.
The chancellor held that canoeing constituted only an occasional trespass and that the right to use the stream had been asserted or brought home to the landowner within the period of limitations. I respectfully disagree. It is true that McElroy and others denied knowing of the use being made of the stream for as long as 7 years. The absence of W. M. McIlroy from the area during the early use of the stream by canoeists will explain his professed ignorance of the facts to some extent. There is evidence from which it might be said that the use which began about 1952 was permissive. That use steadily increased, and must have been obvious to anyone who observed the stream from the Mcllroy farm. A use that originates as a permissive use may be treated as adverse and becomes an absolute right to a passageway, not only when it continues openly for 7 years after the landowner has knowledge that the use is adverse to his interest, but also when the usage continues for 7 years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse. Weigel v. Cooper, 245 Ark. 912, 436 S.W. 2d 85; McGill v. Miller, 172 Ark. 390, 288 S.W. 932; Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281, 46 ALR 2d 1135. I think that it was shown by a clear preponderance of the evidence that the owners of the Mcllroy lands should be presumed to have known that a passageway on the Mulberry River was being used by the public adversely to them and under a claim of right.
Since I cannot agree to the taking and appropriating by judicial fiat of vested property rights of riparian owners on streams which are nonnavigable under the test applied in Arkansas for a century, I must dissent from the majority opinion, but I would reverse the decree on the ground that a prescriptive easement has been acquired by adverse use.
United States v. Wilson & Co., 214 F. 630 (E.D. Ark.) aff'd. sub nom. Wilson & Co. v. United States, 142 C.C.A. 351, 227 F. 827 (8 Cir.), aff'd 245 U.S. 24, 38 S. Ct. 21, 62 L. Ed. 128 (1917).
Under this Constitutional guaranty, we have held that dumping sewage into a stream and polluting the waters thereof was a damage to a lower riparian owner, and such owner was entitled to recover damages, under the quoted Constitutional provisions. See McLaughlin v. Hope, 107 Ark. 442, 155 S.W. 910, 47 L.R.A., N.S. 137. Again, we held that the pollution of the air over private property by offensive odors escaping from a sewer tank, was a damage to adjacent residential property, within the quoted Constitutional provision. See Sewer Dist. v. Fiscus, 128 Ark. 250, 193 S.W. 521, L.R.A. 1917D, 682.