## Facts

- Shallcross Lake was created in the mid-1700s as a mill pond by damming a branch of Drawyers Creek.
- The lake is supplied by springs, rainfall, runoff, and two small streams, and drains through a discharge stream.
- In 1921, Mary E. Shallcross conveyed the lake and surrounding property to Delaware Anglers’ & Gunners’ Club, which operated the area as a private hunting and fishing club.
- Harriet L. Hagan and Charles T. Blaisdell owned land near the lake, tracing title back to Shallcross, and sought to establish a right to fish in the lake.
- Plaintiffs asserted two bases for access: (1) a public right based on alleged navigability of the creek branch or related waters; and (2) a deed reservation allegedly granting fishing rights that ran with plaintiffs’ land.
- The Club denied any public or deed-based rights and counterclaimed that any competing rights were extinguished by its long-term exclusive control, including through adverse possession.
- Trial evidence described the creek branch and the lake’s outflow as shallow and obstructed, with no history of commercial transportation use.

## Issues

1. Whether Shallcross Lake or connected waters were navigable in fact so as to create a public right to fish and use the waters.
2. Whether a reservation in the Shallcross-to-Club deed created a profit à prendre appurtenant that passed to plaintiffs as successors, or instead a profit in gross that did not run with land.
3. Whether the Club acquired exclusive rights by adverse possession sufficient to defeat any competing use claims.

## Decision

- Judgment was entered for Delaware Anglers’ & Gunners’ Club.
- The court held there was no public right to use the lake because the relevant waters were not navigable in fact.
- The court held plaintiffs had no deed-based fishing rights because the reservation created a profit à prendre in gross, not an appurtenant right running with plaintiffs’ land.
- Because plaintiffs failed to prove any independent entitlement to use the lake, the court did not need to rest its judgment on the Club’s adverse-possession theory to deny plaintiffs’ requested access.

## Legal Principles

- Waters are navigable in fact only if used, or susceptible of use in their ordinary condition, as highways for commerce where trade and travel may occur in customary waterborne modes.
- Recreational suitability alone does not establish navigability in fact for purposes of public use rights.
- A deed reservation of hunting or fishing rights generally creates a profit à prendre (a nonpossessory right to enter and take a resource).
- Whether a profit is appurtenant (running with land) or in gross (personal) turns on the instrument’s language and intent; absent clear linkage to a benefited parcel, the right is treated as personal and does not pass automatically to later grantees.
- Private ownership of the bed of an artificial or dam-created waterbody is not displaced by public-use claims unless the waters satisfy the navigability-in-fact standard.

## Conclusion

The court denied neighboring landowners’ attempt to fish in Shallcross Lake, concluding the lake and related streams were not navigable in fact and that the deed reservation relied upon created only a personal profit that did not transfer with plaintiffs’ land, leaving the Club’s private, exclusive use intact.


Hagan v. Del. Anglers’ & Gunners’ Club, 655 A.2d 292 (Del. Ch. 1995)