State v. McIlroy

I cannot join in the court’s new definition of navigability, even though I concur in the reversal of the decree in this case. My disagreement is based upon the court’s departure from two overriding and interrelated legal principles, i.e., the effect of a rule of property and the vesting of property rights.

Never before in Arkansas, has determining the navigability of a stream been essentially a matter of deciding if the water is public or private property. Quite the reverse — the rights of riparian owners have depended upon the test of navigability. Although it may be rather loosely said that…