Hagan v. Delaware Anglers' & Gunners' Club
1995 Del. Ch. LEXIS 24, 1995 WL 104324, 655 A.2d 292 (1995)
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Rule of Law:
A waterway is navigable in fact, creating public rights of use, only if it is used or susceptible to being used as a highway for commerce, not merely for recreational purposes. A reservation of rights in a deed, such as for fishing (a profit a prendre), is considered a personal right (in gross) unless there is clear evidence that the parties intended for the right to attach to the land (appurtenant) and pass to subsequent owners.
Facts:
- In the mid-1700s, Shallcross Lake was formed by damming a branch of Drawyers Creek.
- In 1921, Mary E. Shallcross sold the lake bed and surrounding land to the Delaware Anglers’ and Gunners’ Club, reserving fishing rights for herself in the deed.
- Harriet L. Hagan and Charles T. Blaisdell later acquired property near the lake, with their chain of title also tracing back to Mary E. Shallcross.
- Hagan and Blaisdell asserted a right to fish in the lake, claiming it was either a public waterway or that they inherited the right from the Shallcross deed.
- The creek that was dammed is shallow, obstructed by trees and stumps, and evidence showed it was not historically used for transporting goods.
- After the dam washed out in 1947, witnesses observed only a small, shallow stream in the area where the lake had been.
Procedural Posture:
- Harriet L. Hagan and Charles T. Blaisdell filed suit against the Delaware Anglers’ and Gunners’ Club in the Delaware Court of Chancery (a trial court).
- The plaintiffs sought a judgment to enforce their alleged right to fish in Shallcross Lake.
- The defendant filed a counterclaim asserting that it had acquired exclusive rights to the lake through adverse possession.
- The court held a trial at which both parties presented expert and fact witness testimony.
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Issue:
Does the public have a right to fish in a privately owned lake where the original dammed creek is not suitable for commerce, and does a reservation of fishing rights in the original deed pass to subsequent landowners when there is no evidence the right was intended to be attached to the land?
Opinions:
Majority - Berger, Justice
No. The public does not have a right to fish in the lake because the waterway that formed it is not navigable in fact, and the deed reservation created a personal fishing right that did not pass to subsequent landowners. The court determined that Drawyers Creek was not navigable in fact by applying a multi-factor test considering the waterway's physical characteristics, its historical and actual use, and the difficulty of navigation. Evidence showed the creek was shallow, obstructed, and had never been used as a highway for commerce, only for limited recreation. Regarding the deed, the court classified the reserved fishing right as a profit a prendre. It found no evidence that the parties intended the right to be appurtenant (attached to the land), so it was deemed a profit a prendre in gross—a personal right held only by Mary Shallcross that was not transferable to subsequent owners of her other property.
Analysis:
This decision clarifies the standard for navigability in fact in Delaware, affirming that mere susceptibility for recreational use, such as by canoe, is insufficient to establish public rights; the waterway must be suitable for commerce. The ruling also reinforces the default classification of profits a prendre as being 'in gross' (personal) unless extrinsic evidence or the language of the grant demonstrates a clear intent for the right to be 'appurtenant' (attached to the land). This protects property owners from unforeseen encumbrances on their title based on ambiguous reservations in historical deeds.
