Public Rights in Indiana Waters

G. Graham Waite, The Catholic University of America, Columbus School of Law


Lawyers use the term "public rights in water" to refer to those water uses the law protects in persons regardless of whether they own shoreline property fronting that portion of the watercourse proposed to be used. The term "public" is a bit misleading. The persons exercising the rights are for the most part private persons, just as are the persons owning shoreline tracts; and the uses within the rights, though important to society, are not more important than some shoreline uses. In some states the rights have been court-created; are said to be held by the state in trust for the public; and may be enforced by the state or private persons. Modem Indiana law pertaining to public uses of water, however, is largely statutory. In the nineteenth century relevant decisions of the state's courts invariably dealt with only commercial navigation. Not until the 1940's did demands to make recreational uses of Indiana watercourses become sufficiently insistent to win governmental protection. By that time it was toward the legislature that recreation pressures were principally directed, rather than toward the courts through a test case.

This article summarizes the early case law of public rights in Indiana water and then proceeds with the principal task of discussing the possible meaning of recent statutory developments, none of which have been construed by the Indiana Supreme Court.