10.9 Stream Bed and Banks as Boundaries

• Library: Real Estate Practice Deskbook (2019 Ed.)

3. (§10.9) Stream Bed and Banks as Boundaries

The ownership or title to the bed or banks of a watercourse varies with its designation as either navigable or nonnavigable. See Skinner v. Osage County, 822 S.W.2d 437 (Mo. App. E.D. 1991) (a navigable watercourse for bed title purposes is a watercourse used as a highway of commerce). Compare Elder v. Delcour, 269 S.W.2d 17 (Mo. banc 1954) (there is a public easement for fishing by wading and for floating over any watercourse that will float a recreational boat, regardless of navigability for purposes of title), and United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940) (federal "navigability" for federal jurisdiction is based on an interstate navigation in fact test, which includes historical, present, and susceptibility to future navigation), with Skinner. Regarding the federal test, see also Rapanos v. United States, 547 U.S. 715 (2006) (discussing the broadening of the federal standard).

If the stream is commercially navigable, title to the bed below the low water mark belongs to the state. Skinner, 822 S.W.2d 437; Sibley v. Eagle Marine Indus., Inc., 607 S.W.2d 431 (Mo. banc 1980). Of course, this includes the beds of the Mississippi and Missouri Rivers. State ex rel. Citizens' Elec. Lighting & Power Co. v. Longfellow, 69 S.W. 374 (Mo. 1902); Peterson v. City of St. Joseph, 156 S.W.2d 691 (Mo. 1941).

In a nonnavigable watercourse, the bed of the stream belongs to the owner of the fee when the watercourse is bounded on both sides

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