Are Mississippi’s Oxbow Lakes Public Waters?

Josh Clemons

If you have ever looked out the window during an airplane flight over one of the South’s many meandering rivers, you have probably seen an oxbow lake. An oxbow lake is formed when a meander – one of the “hairpin curves” - in a river or stream is cut off from the main channel by an avulsion. Oxbow lakes are common in Mississippi on rivers including the Mississippi and the Pearl. Typically they are hydrologically connected to, and seasonally rise and fall with, the river that birthed them.

Oxbow lakes can provide outstanding fishing and hunting opportunities; for that reason, private individuals and groups sometimes seek to exclude the public from oxbows that they claim are private property. Can they do this, or are the state’s oxbow lakes public waters?

The Law Pertaining to Public Waters
The public has the right to use public waters for boating, fishing, and other uses. The Mississippi statutes define “public waterways” in such a way that it appears that only flowing streams can be public.1 However, the Mississippi Supreme Court in Dycus v. Sillers observed that the statutory definition does not necessarily exclude other types of waters, such as lakes, from the legal status of “public waters.”2 While discussing the oxbow Lake Beulah in Bolivar County in that case, the court suggested that all oxbow lakes are public waters, and that members of the public accordingly have the right to use them “to [their] heart’s content, subject only to a like use by others and reasonable regulation by the state.”3 The court even went so far as to declare that “the public right to waters formed by an avulsion is as great as any other public waters.”4

Other cases, as well as opinions of the Mississippi Attorney General, support the Dycus view that oxbow lakes are public waters. In State Game and Fish Commission v. Louis Fritz Co. the Mississippi Supreme Court held that the private riparian owner of over 90 percent of the lands beneath a lake could not exclude a state contractor, who gained lawful access to the lake from another riparian landowner, from clearing the lake of predatory fish.5 While the case appears to involve an oxbow lake (South Horn Lake in DeSoto County), the court did not explicitly address the public/private status of the lake; rather, it held that anyone who gains lawful access to a lake (that is, who does not trespass to get there) may make use of the surface of the lake for boating and fishing so long as they do not interfere with similar use by others who are entitled to use the lake. A riparian landowner may own the bed and banks of a natural lake, but he does not own the water or the fish in it.6 The state owns the water and fish for the common benefit of all its citizens.

In 1991 the Mississippi Supreme Court decided in Ryals v. Pigott that the Bogue Chitto River is a public waterway.7 The portion of the river in question did not meet the statutory mean annual flow requirement; nonetheless, the court found it to be a public waterway because it is “navigable in fact.”8 The court rejected as too restrictive the obsolete “steamboat carrying two hundred bales of cotton” definition of navigability found in Miss. Code § 51-1-1. Instead, a water body is “navigable in fact” if it can be navigated by “loggers, fishermen and pleasure boaters.”9 The court indicates that lakes, as well as streams, can be navigable waters under the law.10 Waters that are navigable in fact are subject to public use under the Equal Footing and Public Trust doctrines.

Under the Equal Footing Doctrine (erroneously referred to in Ryals as the “Equal Footings Doctrine”), the title to the beds and banks of navigable streams passed to newly-formed states at statehood.11 States may, with some restrictions, pass title to these lands to private landowners, but the public retains the right to use the navigable waters for commerce, fishing, and boating under the Public Trust Doctrine.12 The Ryals court observed that this public right cannot be withdrawn “by legislative enactment or judicial decree.”13 In other words, the legislature can sell or give away the land under navigable waters but it cannot sell or give away the public’s right to use those waters.

None of these cases explicitly decided the public/private status of an oxbow lake. However, when the cases are read together their reasoning suggests very strongly that the Mississippi Supreme Court, if squarely presented with the issue, would consider oxbow lakes to be public waters. This view seems to be shared by the Mississippi Attorney General’s office, which has issued several opinion letters on the subject. In a 1993 letter to the Mississippi Department of Wildlife, Fisheries and Parks the Attorney General quoted with approval the language in Dycus that indicates that all oxbow lakes are public.14 In separate opinions for the Mississippi Gaming Commission, the Attorney General declared that oxbow lakes are navigable.15 These letters provide additional strong support for the position that oxbow lakes are public waterways.

Prescription
The Dycus court declared that, even if they are not otherwise “navigable” or “public,” oxbow lakes may become public waters by the doctrine of prescription.16 Under the doctrine of prescription, private property may become public if it is used “under a claim of right, openly, notoriously, peacefully, continuously and uninterruptedly for in excess of ten years.”17

Conclusion
The relevant law strongly indicates that oxbow lakes that were formed by navigable rivers or public waterways are public waters. Therefore, a member of the public has a right to use them for, at the very least, boating and fishing, provided he or she does not have to trespass across private land to get there.

ENDNOTES
1. Miss. Code § 51-1-4.
2. 557 So.2d 486, 499, n. 65 (Miss. 1990).
3. Id. at 501. This statement is not binding law because the public/private status of oxbow lakes was not the issue before the court in that case. However, the statement does signal how the court might rule if that were the issue.
4. Id. at 503.
5. 187 Miss. 539 (1940).
6. This rule does not apply to man-made lakes, such as catfish farms.
7. 580 So.2d 1140 (Miss. 1991).
8. Id. at 1152.
9. Id.
10. Id. at 1151 (“At the time the constitution was adopted commerce by navigable waters, such as rivers, lakes, bayous and canals was much more common than now…”) (emphasis added).
11. Pollard v. Hagan, 44 U.S. 212 (U.S. 1845).
12. Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (U.S. 1892).
13. Ryals at 1149.
14. Miss. Atty. Gen. Op. 1993-0836 (Dec. 6, 1993).
15. Miss. Atty. Gen. Ops. 1992-0036 (May 18, 1992), 1993-0539 (July 14, 1993).
16. Dycus at 501.
17. Id.

University of Mississippi