## Facts

- Lake Chelan is a conceded navigable lake in Washington.
- A federally authorized dam raised the lake annually to about 1,100 feet above sea level for roughly three months each summer, seasonally inundating certain privately owned uplands.
- The Gallaghers owned lakeshore property that was seasonally submerged during high water.
- In 1961, the Gallaghers placed fill on their low-lying property to prevent seasonal submersion and create dry land year-round.
- The fill extended into areas covered by the lake at high water and used by the public and nearby owners for boating, swimming, and other recreation.
- Nearby shoreland owners sued as a class seeking damages and injunctive/abatement relief, alleging loss of recreational water area and obstruction of public use.
- The trial court awarded damages but declined to order removal of the fill.
- The Gallaghers appealed the damages award; plaintiffs cross-appealed seeking removal of the fill.

## Issues

1. Whether the public’s navigation rights in a navigable lake extend to privately owned uplands when those lands are seasonally covered by waters artificially raised under lawful authority.
2. Whether an upland owner may lawfully place fill that occupies or blocks waters that are actually navigable and used for public recreation during periods of inundation.
3. Whether such fill constitutes an unlawful obstruction/public nuisance requiring mandatory abatement rather than merely damages.

## Decision

- The court held that public rights of navigation and incidental recreation extend over all areas actually covered by the navigable waters of Lake Chelan, including areas covered only because of lawful artificial raising.
- The Gallaghers’ fill unlawfully obstructed navigation and interfered with public rights during periods when the waters covered the area.
- The court rejected the contention that plaintiffs’ harm was damnum absque injuria.
- The court reversed the remedy in part and remanded with directions to order abatement, requiring removal of the fill.

## Legal Principles

- In navigable waters, the public holds a dominant right of navigation, including incidental uses such as boating, swimming, and fishing.
- The public’s rights attach to waters as they actually exist and are used for navigation, even when the water level is artificially raised pursuant to lawful authority.
- Private ownership of uplands or bedlands remains subject to the superior public right of navigation and incidental public use when the land is covered by navigable waters.
- An unauthorized, unreasonable interference with the public’s navigational right is an unlawful obstruction/public nuisance for which abatement is an appropriate remedy; damages may be inadequate for an ongoing obstruction.

## Conclusion

The court required removal of private fill placed in seasonally inundated portions of a navigable lake, holding that public navigation and related recreational rights extend across all areas actually covered by lawfully raised waters and prevail over private efforts to convert those waters into permanent dry land.


Wilbour v. Gallagher, 462 P.2d 232 (Wash. 1969)