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Is one permitted to go kayaking down a river when it abuts private property, or is that considered trespassing?

Those are the muddy waters of Illinois riparian law whose murk a recent Illinois appellate court drained a little.

Whether a river that abuts private property is open to all boating traffic depends largely on whether the river is one that supports commercial traffic. You know — barges, tug boats, tour boats or other watercraft used of, by and for the business of business.

When a river is used by such traffic, it is a “navigable” river. The public is generally allowed to traverse navigable rivers.

However, if a river is not navigable — i.e. it is not used for commerce — and it abuts privately owned land, the water itself is part of that owned land.

If the river abuts an owner’s land but the opposite bank is not owned by the same owner, then the abutting lands’ boundaries stop at the centerline of the river. Everything within that boundary, from the water’s surface to its bed, is then part and parcel of that owner’s property.

If the owner takes umbrage to someone using their river to paddle by in recreational pursuits, the owner may claim that mariner a trespasser.

Such was the situation in Grundy County when owners of separate properties abutting the Mazon River sought a declaration of their rights. One party declared the right to kayak the entire river. The other party said they could not boat on that part of the river abutting that other party’s land.

The party seeking full use of the river conceded the river was not navigable.

The court in that case then went through an analysis of ancient Illinois land and water rights to pronounce the rule that the boundary of properties abutting a river reached at least to the center line of the river.

Lakes which are entirely surrounded by private property are a different kettle of fish.

There, said the court, it’s impractical to conclude where one’s property boundary extends in the water when there are many properties. Thus, unless the lake itself is entirely owned by one party, it would be open to anyone’s use without claim of trespass by the abutting land owners.

The court also noted non-navigable rivers might be used by owners of land-locked parcels (ground surrounded by other owners with no way to get in and out) for the limited purpose of getting to and from that parcel.

The analysis of whether a river is navigable to commerce is an anachronism from 19th century Illinois law.

In this industrial age of huge screw-driven, bilge-dumping, carbon-spewing vessels, almost all the rivers in Illinois are now eliminated from being considered navigable.

Except for public forests and parks, recreational boating will be limited to rivers of bilge and diesel smoke.

In the early 19th century, Abe Lincoln boated the Sangamon River hauling hogs. He even patented a device to help boats get over sand bars.

Such was commercial watercraft then: shallow and narrow.

Not unlike the legal thinking of certain 21st century courts.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

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