AGO 1989-005.

• Case Date: January 19, 1989
• Court: Kansas

Kansas Attorney General Opinions 1989. AGO 1989-005. January 19, 1989ATTORNEY GENERAL OPINION NO. 89-5Robert A. Walsh Cloud County Attorney Cloud County Courthouse Concordia, Kansas 66901 Re: Waters and Watercourses--Navigable Waters--Republican River; Navigability to Determine Ownership to River Bed Synopsis: Riparian owners of land upon a nonnavigable stream own to the thread of the stream. If the stream is navigable, title of the bed is in the state, and riparians own to the bank of the stream. Navigability to determine title is determined from the facts as they existed at the time of statehood. Therefore, ownership of the bed of the Republican River depends on whether the criteria to determine navigability established in Holt State Bank v. United States were present when Kansas became a state, January 29, 1861. Cited herein: L. 1864, ch. 97, §§ 1, 2; L. 1913, ch. 259, § 10. * * * Dear Mr. Walsh: As county attorney for Cloud County, you have asked our opinion whether the Republican River is a navigable or nonnavigable stream for purposes of ownership of the river's bed. Your question is important to determine the proper methodology for cadastral mapping as it relates to reappraisal. Kansas law is clear that riparian owners of land upon a nonnavigable stream own to the thread of the stream. Kregar v. Fogarty, 78 Kan. 541, 549 (1908). If the stream is navigable, title of the bed is in the state, and riparians own to the bank of the stream. Wood v. Fowler, 26 Kan. 682, 689 (1882); The State, ex rel., v. Akers, 92 Kan. 169, 179 (1914). Three rivers in this state have been declared to be navigable: Missouri River (State ex rel., Kansas City v. State Highway Comm'n, 163 S.W. 2d 948, 952 (1942)); Kansas River (Wood v. Fowler, 26 Kan. at 686); and Arkansas River (Dana v. Hurst, 86 Kan. 947, Syl.¶ (1912)). Also, three Kansas rivers have been found to be nonnavigable: Delaware River (Piazzek v. Drainage District, 119 Kan. 119, Syl. ¶2 (1925)); Neosho River (Webb v. Neosho County Comm'rs., 124 Kan. 38 (1927)); and Smoky Hill River (Kregar v. Fogarty, 78 Kan. at 547). There is no case law deciding whether the Republican River is navigable. In 1864 the Kansas legislature declared the Kansas, Repulican, Smoky Hill, Solomon, and Big Blue rivers to be not navigable and authorized railroad and bridge companies to bridge...