Givens v. Ichauway, Inc.

This case is not about the ownership of the creek bed or the rights of property owners adjacent to the creek. The issue in this case is whether the public has a statutory or common law right of passage on the Ichauwaynochaway Creek because it is, or was, capable of navigation. The majority opinion misconstrues the statutory definition of navigable stream under state law and ignores the public’s right to use interstate waterways under the commerce clause of the United States Constitution. Because the record presents disputed issues of material fact, I would reverse and, on remand, would direct…