After being run off for “trespassing” last week, when I was in the streambed of a navigable river and had accessed the river legally, I decided I needed to be even more informed of my legal rights to navigable streams (and what defines a navigable stream).
This law review by Richard Frank is the best synopsis of US water law as it relates to navigability and public use that I could find.
If you regularly fish public waters that flow through private lands, you definitely will want to read this law review (at least the first half - the latter half deals specifically with California law). As for me, I’ll be putting a copy of it in a Ziploc baggie (along with a copy of a particular Arkansas court case) and carrying it in my fishing pack at all times.
Just some highlights for those who don’t or won’t read the whole thing…
The legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances at all times. – United States v. Appalachian Power Co. 311 US 377, 404
In other words, there isn’t a hard and fast definition of navigability. There isn’t a certain flow rate, a particular depth or width, or a particular grade which must be met for a stream to be considered navigable.
Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. – The Daniel Ball, 77 US (10 Wall.) 557, 563
I have heard it said many times that a river must be “declared” or “deemed” navigable before it is considered navigable. This is not the case. Beginning with The Daniel Ball, the US Supreme Court has repeatedly stated that rivers which are navigable in fact are navigable in law. This means that any river which is physically navigable (more on what that means in a bit) is navigable by law. It is not necessary or prudent for the courts to go through and designate as navigable or non-navigable each stream on a stream-by-stream basis.
Navigability does not depend on the particular mode in which such use is or may be had… nor on the absence of occasional difficulties in navigation, but on the fact… that the stream in its natural and ordinary condition affords a channel for useful commerce. – United States v. Holt State Bank 270 US 49, 55-56
I’ve often heard it said that a river is only navigable if it is navigable by large, powered crafts, such as steamboats or motorboats. Also, many people will say that a stream must be navigable along its length, that if there are any obstructions (shoals, riffles, treefalls, etc) that inhibit navigation then the stream as a whole is not navigable. This is not the case. As long as the stream, in general, under normal circumstances allows a vessel to float for useful commerce, then it is a navigable stream.
In North Dakota v. Andrus the Little Missouri River was deemed navigable, even though it is impassible at certain times of the year, due to freezing, flooding and low summer flow. In fact, the opinion noted that though the river was only 2.5 feet at its deepest, because there were historic cases of isolated canoe use, the river was sufficient for travel and therefore for commercial purposes.
Additionally, the decision explicitly relied upon evidence of private recreational use (canoeing) as evidence of the river’s susceptibility to commercial use.
Furthermore, in Alaska’s Appeal of Doyon, Ltd. (86 Interior Dec. 692) the courts again concluded that susceptibility to use by small, recreational craft is sufficient evidence for navigability. That is, the stream need not to have been historically used for recreational craft, but simply that the stream is capable of supporting such activity, in order to be considered navigable.
It seems as if navigability of flowing waters is a common concern with some Canadian landowners wanting the creek for themselves as well.
I keep copy of this ruling in my shoulder bag whenever I fish the Upper Bronte, being North Burlington and all. http://pages.interlog.com/~erhard/navib.htm
These are all great articles and these things should be taught to anglers, in fact they should have a pre license fishing course, like a hunting course, and many things could be taught to anglers i. e. what is open water and what is trespassing, how not to hook yourself, how not to hook someone else, how to remove a hook from someone etc. etc. etc.
If memory serves, the federal definition of navigable refers specifically to commercial use (by vessels and barges capable of transporting goods and/or paying passengers). Interstate commerce via river traffic is a federal issue. Since the designation of a waterway as navigable impacts the property rights of individual landowners, e.g. where their property line is marked (middle of the non-navigable stream and high water mark of navigable stream in most states), and real estate is primarily a state issue, state legislatures and courts have made their own definitions that may go beyond the federal. In addition to impacting recreational use, such designations affect issues like required height of bridges and control of draw spans and swing spans. River transport is the oldest form, pre-dating rail and roadway–statutory and case law go way back. I wouldn’t rely on another state’s definitions to support any claim on my state’s waters, and I’d make sure to research within my state very thoroughly before making any claim one way or the other vis-a-vis contested waters.
-CC
This is a good point. In Ohio, landowners can own the land underneath a river. You can float a navigable stream, but the minute you set foot or drop anchor on a privately owned streambed, you’re trespassing.
Not true. If you’ll read what I posted above, many waters have been deemed navigable by the US courts that were capable of floating little more than small, personal, recreational watercraft. Furthermore, all navigable waters have been given to the states, for title purposes, held in trust for the public. That is, the states own the streambeds of navigable rivers, but they cannot prevent the public from using them. Furthermore, while many landowners will claim a title to a streambed, if the stream is in fact navigable, then their title to the streambed is invalid, as the states actually own the streambed and cannot give it up, as they are required, once again, to hold it in trust for the public.
While states have the rights to create additional rights for the public on waters (they can make non-navigable waters public, for example), because navigable streams are regulated by federal law, and states are required to hold them in trust for the public, states cannot create laws which prevent the public from using navigable rivers, nor can they create a stricter definition of navigable than the federal “definition” (which has been applied very liberally).
Also not true. As I stated in the previous post, while owners might sometimes hold a title to the land under a river, that title is invalid. Because public rights to rivers are prior existing rights, the landowner (or whomever deeded the river bed to him) never actually held the rights to that bed, so the landowner cannot own it. All navigable rivers were given to the states, to be held in public trust, at the time of statehood. That is, at the moment Ohio, for example, became a state, all navigable rivers of that state become the property of Ohio, to be held for the public trust. Even if someone has a deed to the river, it’s invalid.
Furthermore, in State of Oregon v. Riverfront Protective Association, the McKenzie River was deemed to be navigable because it had been used historically for transporting logs downstream. This was even though driving logs on the river “required constant attention to avoid logjams, flooding, and low seasonal flows.” In the McKenzie case, crews were required to wade downstream with the logs to keep them moving. The stream was navigable and used not only for floating, but also for wading.
I can’t disagree with you, but trying to float down some private waters here in Colorado can get you shot at!!! :o On one river I know of, you don’t dare touch bottom on private property (one landowner in particular has cc surveillance on his whole stretch of land) or you’ll be met by the sheriff at the take-out and hauled to jail!
The local courts always seem to agree with the landowners. :mad: There are a LOT of stretches of water here that are fantastic fishing, but you can’t get to them unless in a boat of some sort. I recall not too many years ago one landowner stringing barbed wire acros “his” river to keep kayakers out.
The old Colorado saying is, “Whiskey is fer drinkin’, and water is for fightin’”.
“Barring any local rules or regulations, it is legal to boat on any body of water as long as you don’t cross private land to do so. The land under a river or stream is considered to be the property of the adjacent landowner.”
The above was lifted directly from the Ohio Department of Natural Resources website. You may have something in your hand that lays out a different legal argument, but until somebody fights it, it’s the law in Ohio.
To go along with what Gutbomb and Wayne said/asked…
Basically, if someone were to actually challenge that rule, it would be a very clear decision to overturn. The state cannot grant ownership of a streambed to an adjacent landowner, by Federal Law. That being said, you would have to go through a very long and expensive process, and for the average fisherman, it simply isn’t worth it.
Check out the Virginia Supreme Court ruling at the end of this article.
The “Crown Grant” owners pretty much have control of the river situation on their property.
Reason why the Fish & Game dept, quit stockings a while back; but, luckily the natural reproduction has been pretty good.
[b]Virginia[/b] Fishing Feud
The Virginia Supreme Court ruled that four landowners along a stretch of the Jackson River can bar fishing in their waters because of grants - called crown… www.surveyhistory.org/virginia_fishing_feud1.htm - Cached - Similar
Pennsylvania is the same as Ohio. If the river is “navigable” (a nebulous term that lawyers across the land will eat up), then you are indeed allowed to do whatever you like in the streambed, up to the high water mark. If it cannot be proven via historical records that it was ever used for commercial or other “navigational” purposes (recreation does not count), then the entire streambed is private property, and any foot set on it risks a criminal trespass violation…just ask many Erie trib landowners.
If you are indeed correct, lead a kayak crusade down some of those streams and force them open…I’m sure several thousand fisherman will flock to your aid.
Fact of the matter is…unless you can prove it was once used for commercial purposes in PA, its private property.
Look up the Spruce Creek lawsuit involving the spring ridge club…
Also FWIW, based on many articles in the newspapers here over the years, I am pretty sure several groups here in Colorado have challenged the federal law and the state law where the streambed is private property was upheld.
I have fished that river for many years and one particular individual will “nail” anyone he catches touching the bottom of the stream that he says is his property. Quite a few people have gone to court and lost. I have fished above on public water and below on private on either side of him. Everyone that has property on that river knows that individual and can’t believe the extent he will go to to keep people off that stretch of water. Unless you have permission to fish private water on that stream, you will end up in court if caught wading and you will lose.
Best listen to the people who know about their own jurisdictions and the jurisdictions they fish in, and not apply a general rule to all states.
Idaho and Montana follow the rule that as long as you enter the water legally and are within the high water mark, you can walk on the streambed. Utah also follows that rule, but only as of the past year or so based on a Utah Supreme Court Decision interpretting the Utah State Constitution in favor of persons utilizing streams and rivers in Utah.
Wyoming follows the other rule - that you can float on a stream bounded by private property but you can not wade on the streambed of the same water without the permission of the landowner or landowners.
Doesn’t mean that landowners will NOT hassle you even where wading streams bounded by private property is legal, and doesn’t mean that any particular Wyoming property owner will not be downright nice and agreeable and let you go about wade fishing on his property.
John
P.S. Last I heard, several months ago, the Utah Legislature was being heavily lobbied to write some legislation to go back to the old days when the property owners controlled the streambed. That seems a doomed effort, unless the Legislature succeeds in actually changing the State Constitution rather than just passing another law which would be found unconstitutional by the Supreme Court.
Wyoming is that way where the streambed is deeded and considered “private property”. In any case I wouldn’t attempt to produce some “proof” to the contrary when told to GTFOH by a ranch/landowner.
We had a case in Maryland where the property owners and marine owners owned the land under the bay or river. I forget which. The point is, they tried to stop other boats from comming in and fishing around the docks. They said they owned the water.
Court said they own the land under the water. People own the water. Ruled in favor of the fishermen.