## Facts

- Plaintiffs owned approximately 360 acres of marshland near West Swanton, Vermont, bordering Charcoal Creek, an inlet connected to Lake Champlain.
- The parties agreed a definite ordinary low-water line existed along the creek at 93.055 feet above mean sea level, and plaintiffs’ ownership extended to that line.
- Since 1949, plaintiffs posted “No Hunting, Shooting, or Trapping” signs at the low-water boundary.
- On October 3, 1979, water levels rose to 95.36 feet, inundating portions of plaintiffs’ marshland beyond the posted signs, including an area known as Jake Nokes Slough.
- Defendants traveled by boat from Lake Champlain through Charcoal Creek into the flooded slough, passed beyond the signs, and anchored about 200 yards inland in very shallow water to hunt ducks.
- A police officer testified defendants were aware they had gone beyond the posted boundary; after they stated they would continue hunting, they were cited for criminal trespass and poaching.
- Plaintiffs filed a civil action and obtained a permanent injunction barring defendants from hunting, shooting, trapping, or entering upon the marshlands beyond the ordinary low-water line.

## Issues

1. Whether the public has a navigational easement and related recreational rights, including duck hunting, over waters temporarily inundating privately owned marshland above the ordinary low-water line.
2. Whether an injunction barring entry beyond the ordinary low-water line is overbroad because it could prohibit lawful navigation on any navigable waters overlying or adjacent to the marsh.

## Decision

- The Vermont Supreme Court affirmed injunctive relief protecting plaintiffs’ right to exclude defendants from hunting and other non-navigational uses on the privately owned marsh above the ordinary low-water line.
- The court rejected defendants’ claim that seasonal inundation of private marsh by water connected to a navigable lake creates a public recreational easement to hunt.
- The court modified the injunction to ensure it would not be construed to prohibit lawful public navigation where a valid navigational easement exists in fact.

## Legal Principles

- Private ownership extending to the ordinary low-water line is not displaced merely because high water temporarily covers the owner’s land.
- Public rights over water surfaces are tied to established doctrines of navigability and any resulting navigational easement; they do not automatically expand into a general recreational right over flooded private land.
- A navigational easement permits passage; it does not include a right to stop, anchor, and use inundated private land for activities such as hunting when that conduct amounts to occupation and use of the owner’s property.
- Constitutional provisions concerning hunting and fishing do not create a general right to enter posted private property absent a clearly established public trust interest or easement.
- Injunctive relief may bar trespassory hunting on private marshlands, but it must be framed so as not to restrain any lawful navigation that the public may possess on genuinely navigable waters.

## Conclusion

The court held that temporary flooding of privately owned marshland connected to navigable waters does not create a public right to hunt there, while modifying the injunction to preserve any lawful public right of navigation separate from hunting or other occupancy-based uses.


Cabot v. Thomas, 514 A.2d 1034 (Vt. 1986)