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American Whitewater

Illinois Navigability Report

Summary

Navigable streams and rivers in Illinois primarily are those that are shown by “meander lines” (which are lines representing the natural flow of the water) on maps created by government surveys conducted during the late 1800's and early 1900's. The state owns title, in trust for the people, of the streambed and riverbeds of these meandered waterways. Thus, the public can use these bodies of water for fishing and boating. There is no definitive answer regarding the public's right to portage around waterways within the public trust.

State Test of Navigability

Illinois state case law primarily determines navigability of the waters. The Illinois courts find that public navigable waters include waters “navigable in fact,”1) where navigable in fact is defined as a waterway “that affords a channel for useful commerce and of practical utility to the public as such.”2) This test of navigability follows the federal title test. Thus, even streambeds that are privately owned may be streams that are declared navigable in fact, giving the public the right to navigate the waters.3)

The Illinois courts' definition has limits, however: “The fact that there is water enough in places for row boats or small launches answering practically the same purpose, or that hunters and fishermen pass over the water with boats ordinarily used for that purpose does not render the water navigable.”4) The focus truly is on the ability of commercial use.

In addition, the government conducted numerous surveys of Illinois' waterways in the late 1800s and early 1900s, and created maps showing many streams, lakes, and rivers by meander lines. These “meandered” waterways are held in trust for the people, whether the water is navigable in fact or not.5) If questions arise regarding ownership or navigability of waterways, then the Illinois courts generally will first determine if the stream in question was meandered.6) Where a stream was not meandered or declared navigable in the surveys, the courts are reluctant to make a finding to the contrary.7)

Extent of Public Rights in Navigable and Non-Navigable Waters

In Illinois, “the public have an easement for purpose of navigation in waters which are navigable in fact, regardless of the ownership of the soil.”8) If the state owns the streambeds, then the public has the further right to hunt and fish, and generally recreate on the water.9) If the streambed is privately owned, however, and the stream is navigable in fact, then the public only has the right to navigate the water, and has no right to hunt or fish in that water.10)

It is unclear whether activities incident to navigation, such as portaging, are allowed. In meandered streams, which are held in public trust, portaging most likely is permissible because the federal navigation servitude should apply to these streams. Keep in mind that Illinois has a strong interest in conserving natural resources and in protecting and improving its physical environment,11) so care should be taken. As explained below, portaging on private land is most likely not allowed in Illinois.

Miscellaneous

Criminal trespass on private land is a class B misdemeanor and occurs where notice has been given indicating that entry is forbidden.12)

1) State v. New, 117 N.E. 597, 599 (Ill. 1917).
2) Schulte v. Warren, 75 N.E. 783, 785 (Ill. 1905).
3) , 4) , 9) , 10) Id.
5) Wilton v. Hessen, 94 N.E. 134, 136 (Ill. 1911).
6) New, 117 N.E. at 599.
7) Dupue Rod & Gun Club v. Marliere, 163 N.E. 683, 685 (Ill. 1928).
8) Schulte, 75 N.E. at 785.
11) Office of the Attorney General of the State of Illinois, 1987 Ill. AG LEXIS 3; 1991 Atty Gen Ill. 241.
12) 720 Ill. Comp. Stat. 5/21-3 (West 1997).