Filling and Building on Small Lakes—Time for Judicial and Legislative Controls

Abstract

Our primary focus is on small natural lakes, that are nonnavigable for title. Restriction of our discussion to lakes, of course, excludes water bodies too small to be labeled "lakes." No hard and fast definition of "lake" can be derived from the case law, but, intuitively, it is clear, that at some point, a water body will be obviously so small, shallow, or useless, that the established rules of lake law will not be applied The term "natural" also excludes artificial lakes, which present peculiar problems not necessarily resolvable in the natural lake context. We have examined primarily cases dealing with small non-navigable lakes; however, some of the same considerations are relevant to "navigable" lakes as well. That this is so is illustrated by the recent Washington decision in Wilbour v. Gallagher," where the supreme court required removal of a fill on a privately-owned portion of the bed of navigable Lake Chelan. This case plainly suggests that the "navigability" vel non of a lake for title purposes may, in the future, play a less important role in the field of lake law than it has in the past. Nevertheless, the traditional differential treatment accorded to navigable and nonnavigable lakes does persist, and this article will center on. the nonnavigable lakes