U.S. Supreme Court
Wear v. Kansas, 245 U.S. 154 (1917)
Wear v. Kansas
Argued November 12, 1917
Decided November 26, 1917
245 U.S. 154
A specific intent to accept the tidal test of navigability, and so to extend riparian ownership ad filum aquae on nontidal streams which are navigable in fact is not predicable of a statute adopting the common law of England in general terms only, particularly if enacted later than the decision in The Genessee Chief, 12 How. 443. Hence, such a statute, passed by Kansas Territory in 1859 and retained by the state, affords no basis even in purport for denying the power of the Supreme Court of Kansas to apply the test of navigability in fact as part of the common law, in determining the ownership of a riverbed as between the state and riparian owners deriving title under a federal patent issued, before statehood, in 1860.
In a mandamus proceeding to test the right of a state to levy charges on sand dredged from a stream by a riparian owner under claim of title ad filum aquae, the latter has not a constitutional right to have the question of navigability determined by a jury.
Whether in such a case the state court may take judicial notice that the stream is navigable is a question of local law. So held where judicial notice was taken of the navigability of the Kaw River, the principal river of Kansas at the state capital, and the decision was supported by the meandering of the stream in original public surveys, and by various state and federal statutes and decisions cited. chanroblesvirtualawlibrary
Assuming that the taking of sand from the bed of a navigable stream be of common right, the state may nevertheless exact a charge from those who take it.
River sand appertains to the riverbed when at rest; its tendency to migrate does not subject it to acquisition by mere occupancy.
92 Kan. 169 affirmed.
The case is stated in the opinion.