## Facts

- W. L. McIlroy and his late brother’s estate owned about 230 acres in Franklin County, Arkansas, with land on both sides of the Mulberry River.
- The landowners sought a declaration that the Mulberry River segment crossing their property was nonnavigable, making their riparian rights superior to public use and allowing them to exclude the public from the stream.
- The State intervened, asserting the Mulberry was navigable and that the streambed belonged to the State rather than the landowners.
- Conservation and outfitting interests supported public use, arguing the river was navigable and, alternatively, that the public held a right of use by easement theories.
- Evidence showed longstanding public use of the Mulberry for fishing, swimming, and canoeing, and that the river was floatable for substantial parts of the year though not year-round.
- A large organized float trip (about 600 participants) entering near a public bridge adjacent to the property triggered landowner complaints about littering, trespass, and property damage.
- Historical survey evidence showed the stream was meandered in an 1838 survey, treated as prima facie evidence supporting navigability.
- The trial court found the river nonnavigable, held the landowners owned the bed and could prevent public use, and declined to enjoin distribution of a brochure promoting canoeing on the river.

## Issues

1. Whether the Mulberry River segment crossing the landowners’ property is “navigable” under Arkansas law, such that the State holds title to the bed and the public has a right to use the waterway.
2. Whether Arkansas navigability doctrine should treat regular recreational floatability and use as sufficient to establish navigability, even without proof of commercial freight utility.

## Decision

- The Arkansas Supreme Court reversed the decree that the Mulberry River was nonnavigable.
- The court held the Mulberry River, as it passes through the landowners’ property, is navigable.
- Because navigability resolved the public-versus-private status of the river, the court declined to reach alternative theories such as public or prescriptive easements.

## Legal Principles

- Navigability determines whether a stream is public or private property for purposes of title to the bed and public use rights.
- “Navigation in fact” is the central test; a stream need not be navigable at all points or throughout the entire year to be legally navigable.
- Prior Arkansas doctrine tying navigability to commercial value was expanded to include regular and practical recreational use, including fishing from small boats and canoeing or floating.
- A stream’s being meandered in early surveys is prima facie evidence of navigability, relevant though not conclusive.

## Conclusion

The court redefined Arkansas navigability to include substantial recreational floatability and use, held the Mulberry River segment at issue navigable, and thereby recognized state ownership of the bed and a corresponding public right to use the stream through the landowners’ property.


State v. McIlroy, 595 S.W.2d 659 (Ark. 1980)