re: Gating canals in houma area

quote:

---

but it seems to be what Professor Yiannopoulos says.

---

Don't bring Yippi into this. Once he left the hallowed halls of the Paul M. Hebert Law Center, for that second rate institution down the river, he became dead to me.

quote:

---

who do you think makes the most campaign contributions to the officials who write and enforce our laws?

---

well this is common knowledge and was said early on, ashame it has to be that way. landowners in the areas we're talking about have a ridiculous amount of money...it's a losing battle really.

quote:

---

regardless, you can't deprive a property owner of his property without due process and just compensation

---

nor do i think a landowner should have to give up his rights, but i also don't think that public funds should have to foot the bill for damage caused by these canals...this was probably already said in this thread and probably a topic for another day

Interesting thread. I can see both sides of argument, but I would agree that landowners should be able to block private canals. On the flip side, if it can be proved that digging these canals led to the erosion of government and others property, then it could get ugly if they are asked to remediate the damage. Have no idea how you mediate that dispute.

On a related note, do I own the air space above my property through the entire atmosphere? Can I build a giant fence so that planes can't fly over my house?

I wish they'd put gates on Brady canal and Voss while they're at it.

Mr Wonderful here is a collection of court rulings/opinions/findings from around the country.

I can't take credit for said collection, I simply found it. It brings a little more into light the amount of uncommon sense the current Louisiana ruling has, as others have alluded to.

Loooooooong!

The court's findings that the river is navigable in fact is well supported.


Under the common law the issue of navigability was determined by a decision on whether or not the tide ebbed and flowed in a given portion of a stream or tributary. If it did, the stream was navigable. Because of the difference between rivers in England and those in the United States, this rule was not adopted in this country. The rule generally adopted here was that if waters were navigable in fact, they were navigable in law, and originally navigability was defined as a stream susceptible to the useful commercial purpose of carrying the products of the country. Wright v. Seymour (1886) 69 Cal. 122 [10 P. 323], seems to indicate that that was the original definition of navigability in California. As will appear hereinafter this is no longer the rule in this state.


1 Waters and Water Rights (Clark Ed.) page 216, indicates that the basic question of navigability is simply the suitability of the particular water for public use and that modern authorities take that position. With our ever-increasing population, its ever-increasing leisure time (witness the four and five day week), and the ever-increasing need for recreational areas (witness the hundreds of camper vehicles carrying people to areas where boating, fishing, swimming and other water sports are available), it is extremely important that the public not be denied use of recreational water by applying the narrow and outmoded interpretation of "navigability."
+
[1] It hardly needs citation of authorities that the rule is that a navigable stream may be used by the public for boating, swimming, fishing, hunting and all recreational purposes. (Munninghoff v. Wisconsin Conservation Com. (1949) 255 Wis. 525 [38 N.W.2d 712, 714-716]; Willow River Club v. Wade (1898) 100 Wis. 421 [76 N.W. 273]; see Diana Shooting Club v. Husting (1914) 156 Wis. 261 [145 N.W. 816], which pointed out that at common law the rights of hunting and fishing were held to be incident to the right of navigation.) [19 Cal. App. 3d 1046]

The modern tendency in several other states, as well as here, to hold for use of the public any stream capable of being used for recreational purposes is well expressed in Lamprey v. State (Metcalf) (1893) 52 Minn. 181 [53 N.W. 1139, 1143], where the court said: "But if, under present conditions of society, bodies of water are used for public uses other than mere commercial navigation, in its ordinary sense, we fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomenclature is preferred. Certainly, we do not see why boating or sailing for pleasure should not be considered navigation, as well as boating for mere pecuniary profit.'" Lamprey points out that there are innumerable waters -- lakes and streams -- which will never be used for commercial purposes but which have been, or are capable of being used, "for sailing, rowing, fishing, fowling, bathing, skating" and other public purposes, and that it would be a great wrong upon the public for all time to deprive the public of those uses merely because the waters are either not used or not adaptable for commercial purposes. (Cases from other states which cite with approval the test in Lamprey v. State, supra, include Coleman v. Schaeffer (1955) 163 Ohio St. 202 [56 Ohio Ops. 214, 126 N.E.2d 444, 446]; Hillebrand v. Knapp (1937) 65 So. Dak. 414 [274 N.W. 821, 822]; Roberts v. Taylor (1921) 47 N. Dak. 146 [181 N.W. 622, 625-626]; see Muench v. Public Service Com. (1952) 261 Wis. 492 [53 N.W.2d 514, 519, 55 N.W.2d 40], wherein a Wisconsin statute now makes a stream navigable in fact which is capable of floating any boat, skiff or canoe, of the shallowest draft used for recreational purposes.)

Cont....

Among other authorities applying the definition of navigability as the capability of the stream being used for recreational purposes are the following: Diana Shooting Club v. Husting, supra, 145 N.W. 816, 818, where the court held navigable the widening of Rock River in Malzahn's Bay, Wisconsin, which varied seasonably from 8 inches to 2 feet in depth and which sometimes had no water in it. The court pointed out that availability for rowboats made the stream navigable. Rushton ex rel. Hoffmaster v. Taggart, supra, 11 N.W.2d 193, 195, held navigable and open to public use a stream "'not navigable in the sense of commercial travel by any kind of boat.'" The fact that during periods of high water logs were run with the aid of dams was not the determining factor in the decision.


In Willow River Club v. Wade, supra, 76 N.W. 273, a small stream was held navigable although except in times of high water it was impossible to get up the stream as far as the main falls in a rowboat without dragging or pushing it on the bottom of the river in numerous shallow places. Here again, the fact that logs were driven down the river upon freshets and by the aid of dams was not a controlling matter. [19 Cal. App. 3d 1047]


In Ne-Bo-Shone Association, Inc. v. Hogarth (W.D.Mich. 1934) 7 F. Supp. 885 (affd. (6th Cir. 1936) 81 F.2d 70) the stream was held navigable although while used for floating logs in freshets and by the aid of dams, it was never used by boats for commercial purposes. Its average depth was 2 1/2 feet and average width was 50 feet.


In Collins v. Gerhardt (1926) 237 Mich. 38 [211 N.W. 115], a fisherman was held not guilty of a trespass for fishing in the Pine River, a river upon which logs had been floated seasonally.

Canoe and rowboat navigation and log floating were held in Nekoosa-Edwards Paper Co. v. Railroad Com. (1931) 201 Wis. 40 [228 N.W. 144] (affd. 283 U.S. 787 [75 L. Ed. 1415, 51 S.Ct. 352]), to make a stream only 2 to 2 1/2 feet deep navigable.


In Wilbour v. Gallagher (1969) 77 Wn.2d 306 [462 P.2d 232, 238], the court said, "The law is quite clear that where the level of a navigable body of water fluctuates due to natural causes so that a riparian owner's property is submerged part of the year, the public has the right to use all the waters of the navigable lake or stream whether it be at the high water line, the low water line, or in between."


In St. Lawrence Shores, Inc. v. State (1969) 60 Misc.2d 74 [302 N.Y.S.2d 606, 612], a stream which varied from 6 to 8 feet in depth was held navigable because of use by pleasure and sport fishing craft during ice free season.

quote:

---

. It brings a little more into light the amount of uncommon sense the current Louisiana ruling has, as others have alluded to.

---

There is nothing about our current law as it relates to this topic that is "uncommon sense".

People have been using navigable wrong for years. That's not my fault, nor the State's. Besides, none of these debates are centered around a natural waterway anyway. This makes your side come off as disingenuous. People mainly get mad over canals. Secondarily about washed away marsh. Canals are easy. Your side is wrong, and you can't even support an argument against the current state of the law. Washed away marsh is a different critter, and I'm not going there.

quote:

---

Courts across the country do not seem to use the Louisiana approach to navigable.

---

Bringing in other states is also a terrible idea. Apples/oranges.

quote:

---

Washed away marsh is a different critter, and I'm not going there

---

Wait. What? If you dig a canal through your private property, and it causes massive erosion problems to the public property surrounding it, you're responsible. One of the biggest issues besides erosion is the silting in of once public navigable in 1812 waterways caused by these private canals.

You can not destroy public right of way in an effort to construct your own private canal. That is a major part of this debate. I don't get your flippant dismissal of that issue.