Public or private? Lake, road spark debate

Published 12:00 am Sunday, June 11, 2000

A 2-mile long road and a narrow lake have been generating big debate among Adams County officials and residents. The question is whether Thornburg Lake Road — the only direct access to Thornburg Lake — is public or private. But that question, which Adams County supervisors have to answer this month, raises questions about whether the lake itself is public or private.

Landowners around the Anna’s Bottom lake have complained of trespassing, poaching and property damage at the site.

They have asked the county to close Thornburg Lake Road, now a county-maintained road, to the public.

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So landowners and local residents crowded into the Adams County Board of Supervisors meeting last week to attend a public hearing on all the roads in the county. Under state law, Adams County must declare which roads are public and which are private by July 1.

At last week’s hearing, Thornburg Lake Road — which is less than 2 miles long — generated the most controversy, with residents arguing they had fished at the lake for years and the county has maintained the road for them.

Supervisors will vote June 19 on the status of all of the county’s approximately 550 roads, including Thornburg Lake Road.

And with the status of the road in question, the same issue is being raised about the lake itself.

A private matter

Although some residents say the lake is public, attorney J.W. Seibert, who represents the landowners, disagrees.

Seibert claims the lake is private because it is not navigable – or not deep enough to drive a boat in the water.

The narrow lake covers less than 50 acres.

A fence, originally placed to keep cattle out of the fields, sits in middle of the water, Seibert said.

Thornburg Lake &uot;is nothing but a little isolated body of water,&uot; and it is no longer linked to the Mississippi River, Seibert said.

&uot;The fact that it lost communication with the Mississippi River renders normal navigability in that lake to zero,&uot; Seibert said.

By comparison, lakes such as the Lake St. John also do not have direct communication with the river, but are much larger and therefore treated differently, he said.

Ross McGehee, a local resident who leases land near the lake for farming, said even if the road is declared public, people cannot get to the lake without stepping on private land. He believes the lake should remain private.

And landowners are working to get approval to push the lake waters even farther back from the road, further restricting access.

&uot;No lake. No fish. No access. Why do we have a road?&uot; McGehee asked at the public hearing.

During the 1960s, a previous land owner installed a ditch to drain the water and keep it out of the fields, McGehee said. Over time, beavers and silt have clogged the ditch but landowners want to fix it.

The ditch would serve as a wildlife management tool but would also push the north end of the lake about three-fourths of a mile back from where it is now, McGehee said.

This creates an even greater distance between the lake and the road.

Public interest

But County Attorney Marion Smith said he thinks the lake should be public because it was formed by the Mississippi River — a public waterway.

&uot;When the river moves and leaves a lake, it’s still public water,&uot;&160;Smith said.

The real question is whether Thornburg Lake Road is public or private, Smith said.

&uot;The road is important because of getting to the lake to fish,&uot; he said.

A&160;complicated issue

R.L. Hammack, chief of surveying section for the civil engineering and land surveying firm of Jordan, Kaiser, Sessions LLC, researched the lake for the landowners to determine its characteristics.

In an affidavit, Hammack said the lake is a chute cutoff lake and is not navigable.

The U.S. Army Corps of Engineers District Office in Vicksburg does not include Thornburg Lake on its list of navigable waterways, Hammack wrote in the affidavit.

And there are some schools of thought that non-navigable lakes are privately owned, he added.

Thornburg Lake is also not an ox-bow lake — a type of lake often considered public — because it formed gradually as the river moved west in the vicinity of Apple Island.

&uot;(An ox-bow) cut-off would be a sudden abrupt change&uot; in the river, Hammack said. &uot;A chute would a have gradual change over a period of time.&uot;

But Hammack agrees the issue is complicated.

&uot;There are a lot of different factors you would have to consider,&uot; he said.

Each lake would probably have to be looked at individually, he said.

A case for court?

Kelli Dowell, an attorney with the Mississippi Department of Environmental Equality said that under DEQ statute the lake is not public; it is private.

The DEQ can only classify a body of water public if it averages a stream flow of 100 cubic feet per second, or if it is a part of a stream system – which is not the case with Thornburg Lake.

If a body of water does not meet this criteria, its status then becomes a question for the courts, Dowell said.

A lake can still be considered public depending on its navigability or by prescription, its use in the past, Dowell said.

Chuck Barlow, general counsel with the DEQ, agreed that in the case of Thornburg Lake, the issue must fall back on the case law.

A court would look at such issues as the historic use of the lake for recreation and its commercial navigability.

Often the overriding question is &uot;how has it been used in the past and for how long has it been used,&uot; Barlow said.

The court may also look at questions such as public access.

That is an important issue in the Thornburg Lake controversy because the lake is completely surrounded by private land with no public access expect for the disputed Thornburg Lake Road.

A court would consider this fact, but &uot;just because there is no public access, it can still be public,&uot; Barlow said.

However, this does not give the public the authority to walk across private land to the lake.

&uot;If somebody has to go on private land to get to the water then they’re trespassing,&uot; Dowell said.

County Attorney Smith agreed trespassing would be a problem even though he thinks the lake is public.

&uot;If you have to trespass to get to (the lake the) landowners can control it it,&uot; Smith said.

The only way the public can get to the lake is if the county acquired an easement on the property, he said.