Attempting to change the navigability designation of the St. Marys River to navigable from its current non-navigable status could be doubly complicated.

Indiana legislative leaders apparently passed a laws in 1828 to 1830 designating the St. Marys River in Indiana as non-navigable. Determining why they made that decision has been difficult, and it seems to run contrary to the historical use of the river.

As early as 1789, Native-American tribes apparently were offered annual payments to allow people to travel on the St. Marys River from its headwaters in Ohio to the Maumee River in Fort Wayne, said Jed Pearson, an area fisheries biologist with the Indiana Department of Natural Resources. Another report indicates the St. Marys was used to transport hundreds of barrels of flour in large boats during wetter seasons of the year.

Proof of commercial use prior to Indiana’s statehood in 1816 is a key factor in determining a river’s navigability status today, Pearson said.

But in 1917, the U.S. Congress approved a bill declaring the St. Marys as non-navigable in Indiana and Ohio. Then-Ohio Sen. Warren G. Harding, who later became U.S. president, proposed the change, which was based on the river’s shallow depth and farmers’ need to keep it clear for drainage purposes, the Congressional Record report on the legislation said.

It’s unclear whether it would take another act of Congress to declare the St. Marys navigable.

* * * *

Fort Wayne rivers navigability timeline

The following timeline was compiled by Jed Pearson, an area fisheries biologist with the Indiana Department of Natural Resources.

* July 1787 Northwest Ordinance, Section 14, Article 4: “The navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same, shall be common highways and forever free ….”

* March 4, 1789: In laws of the United States following treaty negotiations with Native Americans, “the United States now delivers to the said Indian tribes a quantity of goods to the value of $20,000, the receipt whereof they do hereby acknowledge; and henceforward every year, forever, the United States will deliver … like useful goods suitable to the circumstances of the Indians of the value of $9,500″ … (apportioned to several tribes) …” and the said Indian tribes will allow to the people of the United States a free passage by land and by water through their country along the chain of posts (from Ohio) … thence along said portage to the St. Marys and down the same to Fort Wayne.”

* The first grist mill was built as early as 1827, by James Barnett and Samuel Hanna, and stood on the west bank of the St. Marys River, near where the stream is crossed by the Bluffton road. Later Louis H. Davis purchased the mill, and he in turn sold it to Asa Fairfield and Samuel C. Freeman, by whom it was operated until A.C. Beaver became proprietor a few years afterward. It was destroyed by fire in 1878, the last owner being George Esmond.

A company was afterward organized by Mr. Esmond for the erection of a new mill, which was completed in due time, and stood on the site of the former structure. … This mill did a thriving business until 1888, when it also fell a prey to fire and was never rebuilt.

(“History of the Maumee River Basin, Allen County, Indiana,” https://archive.org/stream/historyofmaumeersloc/historyofmaumeersloc_djvu.txt)

* Jan. 30, 1830, Chapter LIII Indiana General Assembly: “Be it enacted by the General Assembly of the state of Indiana that the act relative to navigable streams declared public highways by the ordinance of Congress of 1787, approved Jan. 23, 1829, shall not be construed to extend to the St. Marys river in this state. This act to be in force, from and after its passage.”

* 1833, the Indiana Supreme Court first considered the issue of navigability. In Cox v. State, the defendant was prosecuted for maintaining a mill dam across the White River. The court upheld the state’s right to compel removal based on state and federal jurisdiction over navigable waters, as mandated by the Northwest Ordinance. From the Cox decision, the state was prohibited from converting (streams) to any other use than public highways.

* 1840 commerce: “St. Marys River is navigable from St. Mary’s Fort downward during half the year for large boats carrying from 100 to 200 barrels of flour; during the rest of the year, in the dry season, there is scarcely water enough to float a canoe and the course is much impeded by driftwood. The St. Joseph’s River is stated to be navigable for 50 miles for boats.”

* Sept. 17, 1872, United States Engineer Office – Examination and survey of Saint Marys River, Indiana and Ohio: Following a request by letter on July 29, 1872, the following report based on an inspection on Sept. 10 at Fort Wayne was submitted. “At this point, … it is a small stream with very little water supply and is filled with driftwood, snags, low island grown up with rank vegetation, rocks and sand bars. It is subjected to freshets in the spring, when as much as 10 feet of water may be found at its deepest places; this stage however lasts not to exceed six weeks … and during the summer the bed becomes completely bare at the shoals.”

* An 1879 record from the U.S. Engineers said the St. Marys may have been declared a legally navigable stream in 1812, which apparently required the federal government to remove driftwood from the stream, but that, 60 years later, the government should not be burdened with maintenance responsibilities.

* 1881 Annual Report of the Chief of Engineers for 1881, pages 2343-2347 (See 1917 Congressional record): “The river in no sense can be called a navigable stream as its depth at the time prohibited its descent even in a rowboat, … the most that is claimed for it is that at a remote period before the introduction of roads and canal, the first settlers used to convey their products by flatboats in times of high water down the river to a market selling both flatboats and produce and not attempting to bring the boats back.”

* Feb. 19, 1909, Congressman C.C. Ollhams of LaGrange requested the war department to advise him as to “whether the St. Joe, St. Marys and Maumee rivers in Indiana were ever declared by the government to be navigable streams, and, if so, whether they are still in the eyes of the law so regarded.”

* Oct. 27, 1911, Fort Wayne News-Sentinel, “Court holds the Maumee River navigable stream.” Judge Carl Yaple’s Allen County Superior Court decision was important for its bearing on movement for river beautification.

* June 28, 1914 Fort Wayne Journal Gazette: …”which flow through the “ter” by Robert Hanna, postmaster of Fort Wayne, to the war department, protesting against the encroachment of property own on the beds of the rivers and asking that the government help in and take control of the three streams by declaring that they are navigable.”

* July 24, 1917, Lima News: “Congressman B.F. Welty (Ohio) has asked the federal engineers to declare the St. Marys River non-navigable, so as to remove it from federal jurisdiction, and enable the farmers residing along it to clean it out. No legal barriers can be presented by injunction if this is done. The St. Marys has long been addicted to the habit of overflowing, ruining crops over a wide area. The farmers have believed that the county commissioners cannot take charge of the work, as the stream is a federal province. It passes through Auglaize and Mercer counties in the fourth district. Hon. “Bob” Gordon, ex-congressman and sergeant-at-arms of the house, is also behind the program.”

* July 24 to Aug. 29, 1917, Congressional Record, 65th Congress First Session, Volume LV, Part 6, Pages 5409-6436: Sen. Warren Harding from Ohio. “It is proposed to insert in the bill a new section as follows … that St. Marys River, Ohio and Indiana, be and the same hereby is declared to be a non-navigable stream, within the meaning of the Constitution and laws of the United States.” The reasons cited include a Board of Engineers Report from 1880 saying the river could not be made navigable “even by slack water” and at the “mouth of the river the stream is only 9 inches deep,” there has “never been any Government money spent on it”, and asked for the section “so that landowners along the river may spend some money of their own to deepen and widen it to avoid the floods which bother them every year,” and asked to put in the record “a letter from the governor of Ohio confirming the statements made in regard to the St. Marys River.”

* Aug. 8, 1917: 65th U.S. Congress HR 8275, Harbors Act, Chapter 49, Section 17, Page 268: “That Saint Marys River, Ohio and Indiana, be and the same hereby is declared to be a non-navigable stream, within the meaning of the Constitution and laws of the United States.”

* 1950, State v. Kivett, the Indiana Supreme Court stated that the test for determining navigability is whether a waterway “was available and susceptible for navigation according to the general rules of river transportation at the time (1816) Indiana was admitted to the Union. It does not depend on whether it is now navigable …, and the mere fact that the presence of sandbars or driftwood or stone, or other objects, which at times render the stream unfit for transportation, does not destroy its actual capacity and susceptibility for that use.”

* Feb. 1, 1980, Governor’s Water Resource Study Commission, The Indiana Water Resource, pages 104-109. “Bed ownership of any body of water gives a private owner the following rights: to remove materials from the bed, to exclude the public from use of the overlying waters, and to cut and remove ice.”

* July 1, 1992, Indiana Natural Resources Commission, Roster of Indiana waterways declared navigable: In reviewing State v. Kivett, the commission states, “If the waterway was navigable on the date of statehood, title to the bed of the river passed to the state of Indiana and could not ordinarily be conveyed incident to the adjoining riparian property. Also, once a waterway is found to be navigable it remains so, even if the waterway is no longer used for purposes of commercial navigation.”

Also, a judicial determination as to whether a particular water is or is not navigable generally supersedes a legislative or administrative decision, and a later statutory repeal does not negate the navigability of the waterway.”

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