Tucker, 031772 MSAGO, 1972-0007

• Case Date: March 17, 1972
• Court: Mississippi

Honorable A.T. Tucker, Jr. No. 1972-0007 Mississippi Attorney General Opinions March 17, 1972          Honorable A.T. Tucker, Jr.          County Prosecuting Attorney          P.O. Box 826          Tunica, Mississippi 38676          Dear Mr. Tucker:          In your recent letter on behalf of the Tunica County Sheriff and yourself, you requested an official opinion on the following question:

         Is the act of one coming by boat upon the flood waters of the Mississippi River prohibited by Section 2409 of the Mississippi Code Annotated (1942), as Recompiled and all Acts amendatory thereto, so that such person might be properly arrested and prosecuted for trespassing upon the posted lands of another, when the land underlying these flood waters is usually dry, woodlands, which is beneath the surface of the river only during a few weeks each winter, when the river is at its highest stages, this property being legally posted, the posted notices showing above the water line even when the land is flooded?”

         We must first determine if the floodwaters are “navigable waters” within the meanings of Sections 686, 8413 and 8414, Mississippi Code of 1942, Annotated and Recompiled.          Section 686, which is in the Definitions and Rules section of the Mississippi Code, defines “navigable waters” as:

“All rivers, creeks and bayous in this state, twenty-five miles in length, and having sufficient depth and width of water for thirty consecutive days in the year to float a steamboat with carrying capacity of two hundred bales of cotton, are navigable waters of this state and public highways.”

         Section 8414, which is in the Highways section of the Mississippi Code, is identical to Section 686, except for minor wordage changes:

“All rivers, creeks and bayous in this state, twenty-five miles in length, that have sufficient depth and width of water for thirty consecutive days in the year, for floating a steamboat with carrying capacity of two hundred bales of cotton, are hereby declared to be navigable waters of this state.”

         Section 8413, which is also in the Highways section of the Mississippi Code, defines “navigable water-public highways as:

“All bays, inlets and rivers, and such of the lakes, bayous, and other watercourses as shall have been or may be, declared to be navigable by act of the legislature or by the board of supervisors of the county in which the same may be, shall be public highways”.

         The terms of one of...