Navigability Laws
INTRODUCTION *
American Whitewater?s Mission Statement *
General Access Policy Statement *
AMERICAN WHITEWATER *
How to Use this HANDBOOK *
IMPORTANCE OF PROPER LEGAL REPRESENTATION *
Description of Federal Navigability Law, the Federal Title Test, & the Importance of The Daniel Ball *
Notes on Landowner Liability and Recreational Use Statutes *
STATES *
ALABAMA *
ALASKA *
ARIZONA *
ARKANSAS *
CALIFORNIA *
COLORADO *
CONNECTICUT *
DELAWARE *
FLORIDA *
GEORGIA *
HAWAII *
IDAHO *
ILLINOIS *
INDIANA *
IOWA *
KANSAS *
KENTUCKY *
LOUISIANA *
MAINE *
MARYLAND *
MASSACHUSETTS *
MICHIGAN *
MINNESOTA *
MISSISSIPPI *
MISSOURI *
MONTANA *
NEBRASKA *
NEVADA *
NEW HAMPSHIRE *
NEW JERSEY *
NEW MEXICO *
NEW YORK *
NORTH CAROLINA *
NORTH DAKOTA *
OHIO *
OKLAHOMA *
OREGON *
PENNSYLVANIA *
RHODE ISLAND *
SOUTH CAROLINA *
SOUTH DAKOTA *
TENNESSEE *
TEXAS *
UTAH *
VERMONT *
VIRGINIA *
WASHINGTON *
WEST VIRGINIA *
WISCONSIN *
WYOMING *
Glossary *
American Whitewater?s Mission Statement
American Whitewater?s mission is to conserve and restore America's whitewater resources and to enhance opportunities to enjoy them safely.
General Access Policy Statement
American Whitewater seeks to ensure rights of public access to rivers and streams for recreational use by human-powered watercraft including kayaks, canoes, and rafts.
River access has been a controversial issue since Roman times. Modern laws on navigability are still influenced by the Institutes of Justinian, ancient English judicial opinions, the Northwest Ordinance, the obscure "equal footing" doctrine, and theories enunciated by the Supreme Court in 1870 in the case of The Daniel Ball.
River use and the controversies surrounding river use have been changing steadily over the past 25 years. Fishing, digging for clams in the streambed, building docks, piloting barges, and floating logs downstream, are no longer the sole focus of navigability law, precedent, or conflict. We have observed a sea change in public and legal opinion establishing recreational use and the public?s enjoyment of rivers for floating, sport fishing, kayaking, and canoeing as the basis for modern navigability law.
In the context of whitewater sports, advances in equipment, technique, and skills have been arriving at an exponential rate. Boaters are now organizing regular competitions on river segments such as the Gore Canyon on the Colorado, Great Falls on the Potomac, and the North Fork of the Payette in Idaho which, as recently as 15 years ago, were viewed as cascades of almost impossible difficulty.
Meanwhile, rivers are seeing more use and riverside lands are becoming more developed. America has more dams and diversions, more timber and mining operations, and more homes being built along river banks as ranches and farms are carved up in the nation's seemingly inexorable slide towards urbanization and suburbanization than ever before.
With more recreationists on the river, more projects for power generation, irrigation, flood control, and drinking water supply, and more people using stream side lands for everything and anything, the possibilities of conflict continue to grow. To make matters worse, the litigious inclinations of the American public show no signs of abating and people are seeking dramatic legislative and legal solutions.
Confusion over the rights and obligations of boaters versus the rights and obligations of landowners and other river users is matched by the uncertainly about the proper role of government river managing agencies. How responsible should public agencies be for the safety of those who undertake risk-taking recreational activities on public lands? What rules are needed to protect rivers and riverine areas from environmental damage? What agency policies are best to ensure fairness between competing use groups? Who should pay for facilities and services to make river access possible? What if sightseers and hikers as well as river runners use these facilities? What obligations do water project developers have to make amends for the loss of recreational opportunities when dams are built or licensed by the government? These difficult public policy issues affect the opportunities of whitewater boaters to pursue their sport.
American Whitewater has prepared this Handbook to help clarify some of the rights of the public to access and use the rivers and streams in the fifty states. We hope that the information in this handbook will serve as a starting point for educating the reader on navigability law in general and will contribute to a resolution of conflicts, leading to a better and more enjoyable relationship among river users, managers, landowners, and others with an interest in these resources.
Purpose:
Our Mission is to conserve and restore America?s whitewater resources and to enhance opportunities to enjoy them safely.
American Whitewater is a national organization with a membership of over 8,000 individual whitewater boating enthusiasts and more than 150 local canoe club affiliates, representing approximately 60,000 whitewater paddlers. American Whitewater was organized in 1957 to protect and enhance the recreational enjoyment of whitewater sports in America. American Whitewater is dedicated to safety, education, and the preservation and conservation of America's free flowing rivers.
River Access:
To assure public access to whitewater rivers pursuant to the guidelines published in its official Access Policy, American Whitewater arranges for river access through private lands by negotiation or purchase, seeks to protect the right of public passage on all rivers and streams navigable by kayak or canoe, resists unjustified restrictions on government agencies and other river users to achieve these goals. The Access Program seeks to provide short-term improvements and long term protection for recreational access to rivers that flow through both public and private lands.
Conservation:
American Whitewater maintains a complete national inventory of whitewater rivers, monitors threats to those rivers, publishes information on river conservation, provides technical advice to local groups, works with government agencies and other river users, and - when necessary - takes legal action to prevent river abuse.
Education:
Through publication of the bi-monthly magazine, and by other means, American Whitewater provides information and education about whitewater rivers, boating safety, techniques and equipment.
Safety:
American Whitewater promotes paddling safely, publishes reports on whitewater accidents, maintains a uniform national ranking system for whitewater rivers (the International Scale of Whitewater Difficulty) and publishes and disseminates the internationally recognized American Whitewater Safety Code.
Events:
American Whitewater organizes sporting events, contest and festivals to raise funds for river conservation, including the Ocoee Whitewater Rodeo in Tennessee, The Gauley River Festival In West Virginia (the largest gathering of whitewater boaters in the nation), The Arkansas River Festival in Colorado, the Kennebec Festival in Maine and the Deerfield Festival in Massachusetts.
Research Methods
The authors of this document researched materials from Federal and State case law and statutes from all 50 states. The information was collected over the course of the past 2 years, Shephardized, and double-checked right prior to publication. Researchers collected the information from law libraries and computer legal services.
Researchers and Authors include:
Jay Kenney, Jason Robertson, Curt Fish,
Rich Hoffman, _________________, Steven Ledbetter.
This Navigability Handbook is intended to serve as a starting point on navigability law. The handbook serves as an educational tool, trying to explain in simple terms the public's rights to access and float rivers and streams. It is by no means the final authority in each state on this topic. It is intended to merely act as a springboard to further research of the law wherever the reader/user is located.
Paddling and fishing clubs may use this handbook as an introduction to the laws of their state. Many clubs may already have a grasp of this matter, but as new members join this document can serve as a beginning reference point. Another use of this document is to compare and contrast the laws regarding navigability in different states.
This document is laid out in a simple format that has each state's laws detailed separately from other states. Under each state heading there are four sections:
1) Basic Description
2) State Test of Navigability
3) Extent of Public Rights in Navigable Rivers
4) Miscellaneous
5) Statutes Governing Landowner Liability
All the research used is cited in footnotes. The source used for citation format is The Bluebook, a Uniform System of Citation, 16th ed., compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and The Yale Law Journal.
In addition, Appendix A provides an example of how some of this information can be used. The example is a real letter written to a California Sheriff.
IMPORTANCE OF PROPER LEGAL REPRESENTATION
Though this handbook was constructed with properly cited authority and clarifies the public's rights in navigable and non-navigable rivers, it is not a definitive source for many reasons. One is that the "law" is always changing, and therefore all of this information will need to be reconfirmed prior to going to any court. Additionally, this handbook does not replace proper legal representation because a local attorney, besides having a background in the local law, will have an understanding of how the local community applies and reacts to navigability issues. This would include relationships with the court system, police, and possibly politicians who may be able to have an impact on a pending situation.
Another aspect to consider is tact. When confronted with a landowner or public officer (police/park service) it can at times be frustrating at best to try to explain the laws of navigability and the right to float through someone?s property once legally on a navigable river. However, having an understanding about where it is and is not appropriate to assert navigability rights may save a bit of hassle in the future. (Please refer to the Appendix B for an example from the American Whitewater Journal of how one such situation on Tinker's Creek in Ohio was handled well and had a positive outcome.)
Most importantly, though, the impact one case can have on subsequent ones is great, and therefore it is important not to create a restrictive legal precedent. A case should be looked at not only from the perspective of the party going to trial, but also with foresight as to its possible effects on boaters, fishermen, and other recreationists that may desire access to the same area in the future. Most of the time it is therefore helpful to have capable legal counsel when addressing any issue in a court of law.
American Whitewater and local paddling clubs are more than willing to help anyone find adequate legal counsel. American Whitewater has a network of attorneys that includes most of this country, and can easily help find one. Feel free to contact American Whitewater with any questions, concerns, or comments.
Description of Federal Navigability Law, the Federal Title Test, & the Importance of The Daniel Ball
Federal navigability law is used to designate federal waters as navigable. If a body of water does not meet these requirements it can still be declared navigable under state law through a state test, but Congress may not regulate it under the powers of the Commerce Clause of the Constitution.
The federal definition of "navigable" waters determines title to the beds underlying streams and lakes. If water was "navigable" under the federal test at the time of statehood, title to the bed of the stream or lake passed to the state upon admission into the Union.
The Daniel Ball is an important Supreme Court case dealing with navigability. It set precedent in three major areas:
A river is regarded as a "public navigable river" if it is susceptible of being used in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of travel and trade on water. A river that is navigable in fact is navigable in law. The test of navigability, as applied to "navigable waters," is the capability of being used for useful purposes of navigation, -- of trade and travel in the usual & ordinary modes, -- and not the extent and manner of such use.The federal tests of navigability for determining title and defining Congress's power differ slightly. Both determine whether the body of water was navigable in fact as of the date a state came into the Union, not the time the determination was made. However, the natural & ordinary condition of the body of water at statehood determines navigability for title; whereas, the turning issue for commerce clause and congressional management purposes is determined by whether the body of water could be made navigable by reasonable artificial improvements.
Notes on Landowner Liability and Recreational Use Statutes
Often, private landowners are unwilling to open up their land to public use for the simple reason of liability. While this is a valid concern, virtually every state has legislation that addresses this issue and usually offers private landowners protection from liability. Generally, these laws are called Recreational Use Statutes. While each state has some form of Recreational Use Statute, the protection offered to landowners varies greatly from state to state.
The underlying policy of a Recreational Use Statute (RUS) is that the public's need for recreational land has outpaced the ability of local, state, and federal governments to provide such areas and that private landowners should be encouraged to help meet this need. Generally speaking, a RUS provides that a landowner does not owe, to one using his/her property for recreational purposes and without charge, a duty of care to keep the property safe for entry or use, nor a duty to give any warning of a dangerous condition, use, structure, or activity on the property. In other words, under an RUS, recreational users are treated in the same manner as trespassers and thus the landowner owes them no duty of care.
When the tract of land is owned publicly (e.g. city or state owned park), and in the absence of sovereign immunity, the governing law is some form of a State Tort Claims Act or Governmental Immunity Act that the individual state has passed. This acts as the primary basis for tort liability for municipal, county, school, and state governmental bodies. On the Federal level, the Federal Tort Claims Act serves as a basis for liability. Additionally, some state courts have held that the state RUS was applicable to governmental entities.
For more information on the specific laws that govern this topic in your state please refer to a source of information directed at that subject. Our website has links to these statutes at <www.awa.org/liability_statutes.htm>. Another source on the internet is <www.law.utexas.edu/dawson/recreate/recreate.htm>. Recreational Use Statutes and landowner liability are other areas where legal counsel would be a wise option.
The reason this issue is pertinent to access rights and navigability law is that there is often a right to portage natural obstructions in a body of water that accompanies the right to float a river. Additionally, this subject may come into context when a boater, fisherman, or bather exits the water for some other reason.
1. Basic Description:
A boater may float streams in Alabama that are capable of floating commercial logs in times other than spring or winter floods. A right of portage around obstructions in these rivers exists where there is necessity.
2. State Test of Navigability
In Alabama, navigable waters are those waters navigable in fact. The factors used to determine whether a stream is navigable in fact include:
whether the stream is useable for valuable floatage; whether the public or only a few individuals are interested in transportation; whether any great public interests are involved in the use of it for transportation; whether the periods of floatage or its capacity for floatage are sufficiently long to make it susceptible of the use beneficially to the public; whether, and for how long, people have previously used it; whether it was meandered by the government surveyors, or included in the surveys; and whether, if declared public, it will probably in the future be of public use for transportation of goods.The ability to float valuable goods helps label a waterway navigable. Examples of valuable floating goods are products of the forests, mines, or tillage of the country. In a navigable stream not subject to the ebb and flow of the tide, the state owns the riverbed extending to the low water mark. A river is not termed navigable if it is only able to float valuable goods during floods.
Thus, the ability to float commercial logs for regular and significant portions of the year satisfies the test of navigability in Alabama. However, the Blackman case held that the ability to float logs alone does not make the stream navigable, but only gives the public a right to float the stream. Since Blackman, however, no court has made this distinction, so its applicability to boating is unclear.
Alabama statutory law defines "public waters" as all waters of the state that are natural bodies of water; included in this distinction are rivers, creeks, bayous, brooks, lakes, bays, channels, canals or lagoons or are dug, dredged, blasted canals or impoundments if these waters traverse, bound, flow upon or through or touch lands title to which is held by more than one person, firm or corporation or if these waters are navigable. The statute has a limited scope, however, in defining navigable streams: The adjacent riparian landowner owns the streambed and the space above the streambed of non-navigable streams. Thus, only rivers navigable in fact are subject to a public use. For rivers subject to the ebb and flow of the tide up to the ordinary high water mark, the state claims ownership of the streambeds and space above it.
3. Extent of Public Rights in Navigable & Non-navigable Rivers
A right of passage only applies to navigable streams. All navigable waters are free public highways. The public has the right to fish and recreationally boat in these waters. The right of portage in navigable streams occurs only where the user of the stream is in peril or there is an emergency, danger or necessity to land on the bank. Necessity exists "where, in the proper exercise of the right of passage upon the stream of water, it becomes unavoidable that one should make use of the bank for landing upon, or fastening his craft in the prosecution of his passage." A fair interpretation of the statute would permit a boater to portage or to scout incident to the right of passage.
The public does not have the right to float non-navigable streams where floating would constitute trespassing, defined as entering the land of another after receiving a sufficient warning through personal communication, postings or fencing. Trespass is a misdemeanor. Using the Blackman distinction between floatable and non-navigable streams, a boater may be able to argue that no criminal violation occurred. The right to the use of the streambed, fishing in the stream, and to portage around dangerous obstructions in non-navigable streams with privately owned streambeds is even more doubtful. The Alabama Department of Conservation and Natural Resources has taken the position that use of the streambed and portage in non-navigable streams is not permissible where the adjacent landowner and streambed owner does not permit such portage.
4. Statutes Governing Landowner Liability
Alabama?s recreational use statute (Ala. Code § 6 35-15-1) was passed in 1965. This law does not require the landowner to keep the property safe, warn of hazardous conditions, or provide an assurance of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct resulting in an injury or property damage, and does not protect the landowner if a fee is charged for the non-commercial use of their property.
Alabama?s tort claims act, which defines the scope of the government?s liability, is detailed in Code of Ala. § 41-9-62 et seq, and § 11-93-1 et seq.
5. Miscellaneous
The Coosa River was declared navigable because it was meandered. The East Choctawhatchee has been declared floatable. The little Cahaba is navigable in the opinion of the attorney general. Lewis Creek was declared a non-navigable stream.
1. Basic Description
By statute, virtually any stream capable of being boated may be boated without peril of arrest or impediment. If you can access the waterway without trespassing, you can boat on it and portage if necessary.
2. State Test of Navigability
Alaska defines navigable waters broadly as "any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound, estuary, inlet, strait, passage, canal, sea or ocean, or any other body of water or waterway within the territorial limits of the state or subject to tits jurisdiction, that is navigable in fact for any useful purpose, including but limited to water suitable for commercial navigation, floating of logs, landing and taking off of aircraft, and public boating, trapping, hunting waterfowl and aquatic animals, fishing, or other recreational purposes." Furthermore, public waters are defined as "navigable water and all other water, whether inland or coastal, fresh or salt, that is reasonably suitable for public use & utility . . . ." Given the breadth of the state test and the rights associated with it, Alaska has little use for federal title test to determine ownership and use of streambeds and banks.
3. Extent of Public Rights in Navigable & Non-navigable Rivers
In addition to the statutory definition of navigability and public waters, the Alaska constitution dedicates the use of waters occurring in their natural state to the public. Incident to recreational boating on public and navigable waters is the right to portage. The Alaskan Department of Natural Resources takes the position that portage around barriers in a public waterway on private land is permissible as an incident to the use of the state-owned waters.
Also, free access to navigable streams is guaranteed in Alaska by statute. The provisions of this article were intended to permit the broadest possible access to and use of state waters by the general public. The Attorney General has stated that the right to use of the banks of non-navigable rivers does not exist, except in limited instances where a public emergency or an imminent hazard to life arises. The Attorney General?s opinion should not be a barrier to boating new or smaller streams, since the use by boaters under the state law makes the stream navigable in fact and law.
4. Statutes Governing Landowner Liability
Alaska's recreational use statute (Alaska Stat. § 09.45.795) was passed in 1980. This law does not specify if the landowner is required to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
Alaska's tort claims act, which defines the scope of the government?s liability, is detailed in Alaska Stat. § 09.50.250 et seq.
5. Miscellaneous
Entry upon land that is posted, fenced, or where personal notice is given that the land is private is criminal trespass, a class B misdemeanor.
1. Basic Description
Arizona recognizes no right of passage in waters above privately owned streambeds. To the extent that navigable waters exist, they may be used for boating, fishing, swimming, etc., but the right of use is subject to judicial interpretation in a quiet title action. Arizona disclaims or only reluctantly assumes ownership of any streambed in the state besides the bed of the Colorado River.
2. State Test of Navigability
Arizona?s over appropriation of water and concomitant overpopulation has left most streambeds dry or only intermittently. To protect the private ownership of these mostly dry streambeds, Arizona has adopted a restrictive statutory scheme that avoids state ownership of stream banks and beds. The statutory scheme severely restricts the right of passage, because streambed ownership determines which waters are open to boaters. More streams are private and non-navigable than a simple application of the federal title test requires because there is such a high burden of proof involved in proving that a stream is navigable.
By statute, the Arizona Navigable Stream Adjudication Commission determines whether a river is navigable. To be navigable, the stream must have been susceptible of use for both commercial trade and travel at the time of statehood (1912). Furthermore, the stream must be both wet and its flows must arise from more than mere precipitation. If there is no evidence of a profitable commercial trade and travel both downstream and upstream by vessels customarily used in commerce in 1912 (such as keelboats, steamboats or barges), the stream is presumed non-navigable. Recreation is expressly excluded from the definition of commerce. Likewise, if there are impediments to navigation, such as dams or diversions of water, the river is presumed non-navigable. Clear and convincing evidence that a river is navigable is needed to overcome the presumption of non-navigability.
Therefore, the state test is more than equivalent to the strictest interpretation of the federal title test (i.e. navigable streams are those with the capacity for supporting commerce), and is an effective deterrent to suits to determine the navigability of streams for title purposes. Were it stricter than the federal test, the state test would be illegal or preempted by the federal test. One way to litigate the navigability of a stream and avoid the harsh state test would be to litigate in federal court, where only the federal test would be applied.
3. Extent of Public Rights in Navigable & Non-navigable Rivers
To the extent that there are any navigable streams in Arizona, the rights would at least include the right to navigate. Any other rights associated with navigability are to be determined by a court upon a successful quiet title action brought by the state. This provision further limits the use of streambeds and banks of streams that have been dried up by appropriation of the available water. To the limited extent that a right of navigation exists, other rights incident to it, such as fishing, wading, recreating, and portaging, might very well be found to exist.
4. Statutes Governing Landowner Liability
Arizona's recreational use statute (Ariz. Rev. Stat. Ann. § 633-1551) was passed in 1983. This law does not specify if the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
Arizona's tort claims act, which defines the scope of the government?s liability, is detailed in Ariz. Rev. Stat. Ann. §§ 12-820 et seq.
5. Miscellaneous
Criminal trespass on private land that is fenced or posted against trespass or where the owner has communicated to the trespasser is a class 3 misdemeanor.
1.Basic Description
Arkansas has adopted a recreational boating test to determine which waters are open to the public. A stream is public and boaters may use it if it is floatable for about six months of the year. The public has the right to use the water and the streambed up to the high water mark. It is not clear whether portaging above the high water mark is permissible.
2. State Test of Navigability
Arkansas courts have recognized the value of recreation and the concomitant need to access streams. Public waterways are those waters that are capable of being navigated by oar or motor propelled small craft. Furthermore, in order to be navigable under the state test, a stream need not be navigable for the entire year. While the minimum length of the period during which the stream is navigable is uncertain, courts have mentioned six months. Therefore, streams that are capable of being boated are definitely public waterways if they are navigable by small boats for six months of the year. Additionally, streams may be navigable even if the streams are navigable for shorter periods during the year, especially if they have a long history of public use.
3. Extent of Public Rights in Navigable & Non-navigable Rivers
The public has the right to navigate and to exercise the incidents of navigation in a lawful manner up to the high water mark on streams that are public waterways. One of the incidents of navigation is recreation. Another, although not expressly recognized, is walking on privately owned streambeds. Portaging in general is often considered an incident to navigation, although the Arkansas courts have not specifically mentioned a right to portage above the ordinary high water mark on public waterways.
4. Statutes Governing Landowner Liability
Arkansas's recreational use statute (Ark. Code Ann. §§ 50-1101 to 1107) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Arkansas's tort claims act, which defines the scope of the government?s liability, is detailed in Ark. Code Ann. § 21-9-201 et seq.
5. Miscellaneous
Trespass upon land that is posted with signs is a misdemeanor that carries a fine of not less than $500 for the first offense and $1500 for the second.
1. Basic Description
In California, if a stream can be floated for most of the year the public has the right to use the stream. The public may use the stream for recreational boating, fishing, swimming, hunting, etc. up to the high water mark.
2. State Test of Navigability
California has adopted a state test for determining which streams are subject to a public easement for navigation. The waters subject to the easement include those waters that are navigable in fact at the present time by any watercraft propelled by oar, including a kayak. A number of cases have applied the test. The stream need not be navigable for the entire year. The stream must be suitable for public use, which is determined on an ad hoc basis. A stream navigable in fact for most of the year should suffice. In addition, the stream does not need to be navigable in fact in its ordinary state; improvements can make an otherwise non- navigable stream navigable.
3. Extent of Public Rights in Navigable & Non-navigable Rivers
California?s constitution allows the public to use all navigable waters in the state, and further directs the legislature give the provision the most liberal construction. Regardless of whether the stream bed of a river which is navigable in fact is public or privately owned, there is an easement for public navigation and the incidents of navigation, i.e. boating, fishing, swimming, hunting and other recreational uses. The easement exists up to the high water mark.
Courts are especially sensitive to infringements upon the public?s constitutional rights under the guise of police power. The Attorney General found such an infringement when the state sought to prohibit the right to use navigable waters that flowed over inundated privately owned land adjacent to the navigable waterway. In a landmark case, the same constitutional provision defeated a county ordinance that forbade rafting on a river because of the litter, pollution and noise generated by the rafters. However, the public easement does not include the right to use a private pier in navigable water, unless there is an emergency.
Whether portaging and scouting above the high water mark is permissible has not been definitively ruled upon. However, the Mack case does state that the easement for using navigable waters, including the incidents of navigation, exists below the high water mark.
4. Statutes Governing Landowner Liability
California's recreational use statute (Govt. § 846) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
California's tort claims act, which defines the scope of the government?s liability, is detailed in the California Tort Claims Act, Cal. Gov. Code § 810-996.6 (Deering) et seq.
5. Miscellaneous
Article I, section 25 of the California Constitution forbids the state from alienating land without reserving fishing rights in the public.
A case of interest to boaters is People v. Sweetser, 72 Cal. App. 3d 178 (1977), in which a kayaker was found innocent of trespass where the kayaker was carrying his boat on a road across private land to gain access to a navigable waterway. The county had an easement in the road for a public highway, and the use of the road by the kayaker was reasonable.
1. Basic Description
Colorado has a complex and limited right of passage: a boater may pass through private land unhindered so long as the boater does not touch the beds or banks of the stream. No court has yet found a federally navigable river in the state. The right to scout and portage likely exists only by virtue of necessity.
2. State Test of Navigability
Much of the conflict over the right of passage stems from the arid nature of the region, particularly the eastern slope of the state where 80% of the state?s population lives. While 75% of the surface water fall on the western slope of the state, eastern municipal and agricultural water users divert, through a complex maze of dams, reservoirs and tunnels, more than 50% of that water to the eastern slope. Colorado, like most western states, follows the doctrine of prior appropriation: a water user who first appropriates water for a beneficial use has superior rights to the water than any user who came later in time. The right to use the appropriated water is a "perfected property right" upon application to beneficial use." Colorado's constitution states that "the water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the People of the State, subject to appropriation as hereinafter provided." Similar provisions in other states have been construed to grant the public an easement to use the surface. Colorado specifically and unequivocally rejected such a public trust doctrine in 1979.
Colorado?s state test of navigability differs little from the federal test of navigability. As applied, no streams in the state are navigable under the federal test.
In People v. Emmert, the Colorado Supreme Court rejected the recreational boating test of navigability. The court held that a landowner that owns the streambed owns the space above the streambed as well; therefore, any use of the water above privately owned land constitutes trespass. The Colorado legislature reacted to the facts of the Emmert case by adding a definition of "premises" to the second and third degree criminal trespass statute. Where trespass to premises had been silent about rivers and streams, the amendment defined "premises" narrowly to include the "stream banks and beds of any non-navigable fresh water streams flowing through . . ." private property. The statutory definition of "premises" includes neither contact with the water, nor the space above privately owned streambeds.
In a 1983 opinion, the Colorado Attorney General concluded that trespass does not include floating on the surface of any waters where the beds are privately owned. This opinion, coupled with the according statute, removes any possibility of criminal liability for passage through private property. Contact, however, with privately owned stream beds, including rocks protruding from the stream, or stream banks, remains technically illegal. In practice, however, county sheriffs and local police continue to threaten prosecution for citizen initiated complaints (and even issue summonses upon the landowner?s signature). District attorneys responsible for the actual prosecution, however, have dismissed two cases against four boaters on the Cheeseman Gorge section of the South Platte River when educated about the limited scope of the Emmert decision, the new definition of "premises," and the attorney general?s opinion.
3. Extent of Public Rights in Navigable Rivers
The public?s right to portage fences, natural and unnatural obstructions, remains a contentious issue. While landowners have a legitimate interest in livestock fencing and fencing to prevent trespass, they have no right to prevent access to public waters. As a matter of statutory law, boaters should be able to rely upon a "choice of evils" defense if prosecuted for portaging a dangerous obstacle or obstruction.
4. Statutes Governing Landowner Liability
Colorado's recreational use statute (Colo. Rev. Stat. §§ 33-41-101 to 106) was passed in 1963. This law does not specify if the landowner has a duty to keep the property safe or a duty to warn. It does specify that a landowner does not have to provide an assurance of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Colorado's tort claims act, which defines the scope of the government?s liability, is detailed in the Colorado Government Immunity Act, Colo. Rev. Stat. § 24-10-101 et seq.
5. Miscellaneous
Several initiatives to amend both the constitution and statutes, in an effort to permit an undisputed right of safe passage, have failed in recent years. A number of difficult access spots remain contentious, including: the Cheeseman Gorge run from Lake George to the Cheeseman Reservoir; the Lake Fork of the Gunnison; the Taylor River; Bear Creek through the City of Morrison; and stretches of the Poudre River.
6. Contacts
Legal access contacts in the Colorado: Ric Alesch (ralesch@attworldnet.att.net); Jay Kenney (jaypkk@aol.com); and Ken Ransford (ransford@csn.net).
1. Basic Description
The public may swim, fish, and boat in both navigable and non-navigable rivers; however, if the state does not own the riverbed (as in non-navigable rivers) it is probably an act of trespass to touch the riverbed or shore. There is probably no right to portage obstructions in a river, unless the public can stay below the highwater mark.
2. State Test of Navigability
Connecticut case law in determining whether a river is navigable is similar to the federal navigability test. A river is navigable when it is being used "or is susceptible of being used, in its natural and ordinary condition as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." In Wethersfield, it was determined that navigable waters are those that are capable of being used in trade and commerce. The mere fact that a canoe could traverse a waterway did not render it navigable. Instead, navigability was determined by whether the public traveled upon the waterway "in the prosecution of useful occupations." Wethersfield found that there must be "some commerce or navigation which is essentially valuable" in order for the waterway to be navigable by the general public. Though these cases are rather old, they have never been overruled and have been cited as precedent in later decisions. Additionally, a Second Circuit court stated that "navigability may be established despite natural obstructions; capability for public uses for purposes of river transportation is the true criterion.
Also, a tidal waterway is open to passage by members of the public.
3. Extent of Public Rights in Navigable Rivers
Connecticut has no statutes concerning the public's right to use streams that have privately owned beds and banks. Additionally, there are no formal Attorney General opinions on this subject. Under Connecticut case law, the beds of tidal streams are owned by the state. The public has rights, in addition to that of navigation, below the highwater mark. These rights include fishing, boating, hunting, and bathing. There is no mention of a right to portage, but since the public's rights on navigable streams would extend to the highwater mark, a portage anywhere beneath this the high water mark would be within these rights. However, where the bed of the river is privately owned, a 1983 formal opinion by the Attorney general leads this author to believe a portage would be considered a trespass. The opinion states that the right to fish, boat, hunt and bathe "would attach to the water and not the underlying soil if the underlying soil is privately owned. Only a physical touching of that soil could constitute a trespass." This is seems to darken the prospects of a right to portage, but it also reconfirms the right to float through private property on a navigable stream.
4. Statutes Governing Landowner Liability
Connecticut's recreational use statute (Conn. Gen. Stat. §§ 52-557 f to k) was passed in 1971. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency
Connecticut's tort claims act, which defines the scope of the government?s liability, is detailed in Conn. Gen. Stat. Ch. 53 §§ 4-141- et seq. (administrative claims procedure).
5. Miscellaneous
The Connecticut River is a navigable stream, even above tide water.
It is interesting to note that while the state, as representative of the public, is the owner of all land between the high and low water mark upon navigable waters, "owners of adjoining upland have the exclusive, yet qualified, right and privilege to dig channels and wharf out from the owners land in a manner that does not interfere with free navigation."
A person is guilty of criminal trespass in the third degree when he enters on private land that is fenced or posted against trespass, or where he enters and remains for the purpose of hunting, trapping, or fishing.
1. Basic Description
Delaware?s right of passage on waterways turns on a state test of navigability that requires use as a highway for commerce. Few streams have been judicially determined to be navigable. However, where navigable, the public may boat and fish. Portaging and scouting remain untested areas of the law.
2. State Test of Navigability
A Delaware statute defines navigable streams as those streams that are capable of being used for transport of useful commerce. Delaware courts have expressly rejected a pleasure boating test. Instead, the courts interpret the statute to mean that streams are navigable if they 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 ordinary modes of trade and travel on the water." Thus, one Delaware court held that the use of a stream for private non-profit purposes did not satisfy Delaware?s test. Few streams have been determined navigable in Delaware.
3. Extent of Public Rights in Navigable & Non-Navigable Rivers
The owner of a streambed does not have an exclusive right in the fishery. Even where a navigable stream has a privately owned bottom, the public may both fish and boat. Since fishing is included in the navigation easement, the easement may well include other incidents of navigation, such as scouting and portaging.
4. Statutes Governing Landowner Liability
Delaware's recreational use statute (Del. Code Ann. Tit. 7, §§ 5901 to 5907) was passed in 1953. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Delaware's tort claims act, which defines the scope of the government?s liability, is detailed in the Delaware Tort Claims Act, Del. Code Ann. Tit. 10, Ch. 40 § 4001 et seq.(state and local).
5. Miscellaneous
Delaware does not take a completely hands-off approach to managing streams. The state claims jurisdiction over subaqueous, privately owned lands. Additionally, Delaware requires a permit for projects that make use of subaqueous lands if the project might infringe upon the rights of the public.
1. Basic Description
Florida is in the midst of determining which streams are navigable. If a stream can float a canoe, the stream is probably navigable. Navigable streams can be used for floating, fishing and swimming.
2. State Test of Navigability
Florida is in the midst of deciding whether or not to adopt a state test of navigability that would allow the public to use more of the state?s waterways. The decision is being made in the context of controversy surrounding the right of the public to use Fisheating Creek in Glade County. The land under the creek is privately owned, but the public has used the stream for many years until the landowner felled tress and placed barbed wire across the river. The case was first brought to federal court in 1993 after the state sued the Army Corp of Engineers to enforce federal laws prohibiting the obstruction of navigable streams. The district court determined that the creek was non-navigable under the federal test of navigability, and the Army Corp could not enforce the law that prohibited obstructing the stream. In doing so, the court overturned a finding by the Army Corp of Engineers that the creek was navigable. The court relied on several factual findings, including the facts that the creek had not been used for commerce, both sides of the creek had not been meandered in government surveys, and Florida had granted away the title to the bed of the creek because it had considered the creek to be non-navigable. The district court?s determination was upheld on appeal.
The second chapter of the saga involves a suit that was initiated in state court by Attorney General of Florida against the same landowners on Fisheating Creek. In the state court, the same test of navigability was applied- whether the stream was used at the time of statehood for commerce. In this round, the state won, and the stream was declared navigable. The court found that the river was suitable for travel and trade in skiffs and dugout canoes, and this satisfied the test of navigability. This author is not clear which test- the state or federal- was applied by the court, but the court was probably applying a state test. To the extent this is correct, Florida has adopted a test of navigability that can be satisfied by the ability to float a canoe.
3. Extent of Public Rights in Navigable Rivers
The public can use navigable waters for boating, fishing, and other purposes. The Board of Trustees of the Internal Improvement Trust Fund are supposed to manage the beds of navigable rivers which are publicly owned in a such a manner as to "insure maximum benefit and use of sovereignty lands so that the public may continue to enjoy traditional uses including, but not limited to, navigation, swimming, and fishing." The ordinary high water boundary is defined as "the ordinary or normal reach of water during the high water season." Whether a right to portage above the ordinary high water boundary exists has not been decided.
4. Statutes Governing Landowner Liability
Florida's recreational use statute (Fla. Stat. Ann. § 375.251) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
Florida's tort claims act, which defines the scope of the government?s liability, is detailed in the Florida Tort Claims Act, Fla. Stat. Ann. § 768.28 et seq.
5. Miscellaneous
Florida?s constitution, Article X § 11, codifies the federal common law that all navigable waters are public lands that are held in trust for the people.
Trespass on enclosed lands, lands adjacent to dwellings, cultivated lands, posted lands, or after personal communication against trespassing is given is a first-degree misdemeanor. If the property is posted with no trespassing signs that also identify the property as a construction site or commercial property for horticultural products, unauthorized entrance is a felony.
1. Basic Description
From a boater?s perspective, Georgia?s laws regarding navigability are, with the possible exception of Arizona, the worst in the country. The state only recognizes public rights in navigable rivers that are large rivers capable of floating large commercial ships. Furthermore, in navigable rivers, the publics? rights under state law to wade, fish and portage may only extend to the ordinary low water mark. However, federal navigability law may apply to smaller streams and therefore permit access to a greater number of streams in Georgia. Federal law may also permit the public to boat, wade, and portage in federally navigable streams up to the ordinary high water mark.
2. State Test of Navigability
In Georgia, the public?s right to use streams is limited to those that are navigable or subject to an easement. Georgia has a statute that sets forth the rights of adjoining landowners in navigable streams. The statute defines navigable streams as those "capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable." Georgia does not recognize a log-floating test of navigability. Because § 44-8-5 seems to imply that only streams with state-owned bottoms are navigable, the test is no more lenient than the federal test of navigability. In fact, the Georgia test is probably more strict than the federal tests of navigability because, for federal purposes, commercial log driving might be evidence of navigability. Hence, federal court might be the forum of choice for a boater in a contest over a stream?s navigability in Georgia.
Georgia also has a statute entitled "Right of Passage Act" that gives a right of passage only on navigable streams. The definition for navigable streams under this act is identical to the definition of navigable streams under § 44-8-5. The right of passage under this act is only of interest to a boater where the bed of a navigable river is privately owned. In this case, the public would have a right of passage or easement to navigate the stream. The act?s main purpose seems to be to keep houseboats off of navigable rivers.
Additionally, Georgia courts have recognized, but rarely allowed, the public to acquire an easement in a stream by implied dedication. This occurs where the public has made long uninterrupted and continuous use of the river, and the appropriate public authorities have accepted the dedication. A private easement in a stream can be acquired by prescription, which requires open and notorious, continuous use of the river under an adverse claim of right for the requisite statutory time period.
§ 44-8-5 is not applicable to tidal waters, including tidal streams. The public?s rights in tidal waters may be greater, but somewhat more confusing and beyond the scope of this report.
3. Extent of Public Rights in Navigable Rivers
The rights of landowners on navigable streams extend to the low water mark in the bed of the stream. In a case where the state owns the riverbed, the public has the right to boat, fish, portage, and wade up to the ordinary low water line; the right to use the surface of the stream extends from "bank to bank." It is unclear whether the public has these same rights in navigable rivers between the ordinary high water mark and the ordinary low water mark. One attorney general opinion suggested that a riparian/land owner on a navigable stream has exclusive fishing rights between the high and low water marks. Additionally, the right to portage or wade on the banks is equally doubtful. Under § 44-8-5 (b), riparian rights are extended down to the ordinary low water mark, and this implies that the riparian would have the right to exclude others from using the bottom. However, the right to portage and wade up to the ordinary high water mark might be part of the federal navigation servitude.
On navigable or non-navigable streams where the streambeds are privately owned by the riparian, the riparian has exclusive fishing rights.
4. Statutes Governing Landowner Liability
Georgia's recreational use statute (Ga. Code Ann. § 51-3-20 to 26) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Georgia's tort claims act, which defines the scope of the government?s liability, is detailed in the Official Code of Ga. Code Ann. § 36-33-1 et seq.
5. Miscellaneous
1. Basic Description
Hawaii has few navigable streams, and very little law regarding the public?s rights in those streams. Practically no law exists that discusses the public?s right to recreate in non-navigable rivers.
2. State Test of Navigability
The only island which has navigable streams is the island of Kaua?i. This author was not able to determine whether a court determined the navigability of these streams. No further information about which test of navigability a Hawaiian court would use was discovered.
3. Extent of Public Rights in Navigable Rivers
Based on this authors limited research, commenting on boaters? rights in navigable waters in Hawaii would be pure speculation. One Hawaii statute provides that the people have a right of way over land which landlord?s have gained allodial title to. The statute further provides that "springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use. However, this statute may be of limited value to many, because the "people" seems to only include tenants of landlords who have obtained allodial title.
4. Statutes Governing Landowner Liability
Hawaii's recreational use statute (Hawaii. Rev. Stat. §§ 520-1 to 8) was passed in 1969. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Hawaii's tort claims act, which defines the scope of the government?s liability, is detailed in Ha. Rev. Stat. § 662-2 et seq. (state).
5. Miscellaneous
The Hawaii constitution expressly recognizes the states? obligation to protect, control, and regulate the use of Hawaii?s water resources for the benefit of its people. Consistent with this provision, Hawaii has created a commission for the protection of in-stream flows, for purposes such as recreation. Hawaii also has an Ocean Recreation and Coastal Areas Program that is empowered to adopt regulations to protect public health and safety on navigable rivers. The Division of Boating and Ocean Recreation of the Department of Land and Natural Resources has also adopted regulations controlling use of navigable rivers. These restrictions mainly apply to commercial operators, including kayaking tour operators. The use of the North Shore Kaua?i Ocean Management Area is governed by administrative regulations. This area apparently contains navigable rivers, and is used for recreation by the public.
1. Basic Description
Idaho has one of the most boater-friendly rights of passage in the nation. Streams that can be floated by a kayak in Idaho are open to the public for any recreational purpose. Boaters may lawfully scout and portage so long as they return to the river at the first safe spot.
2. State Test of Navigability
Idaho has adopted a recreational boating test to determine which streams are navigable, and therefore subject to a public easement. Consequently, the public can use more streams in Idaho than just those streams that pass the federal navigability tests. Idaho statute defines navigable streams as "[a]ny stream which, in its natural state, during normal high water, will float cut timber having a diameter in excess of six (6) inches or any other commercial or floatable commodity or is capable of being navigated by oar or motor propelled small craft for pleasure or commercial purposes is navigable." A list of meandered streams is also available in Operations Memorandum 1700.
3. Extent of Public Rights in Navigable Rivers
Navigable streams are "highways for recreation." Recreational use of navigable streams is authorized "within the meander lines or, when not meandered, between the flow lines of ordinary high water thereof, and all rivers, sloughs and streams flowing through any public lands of the state shall be open to public use as a highway for travel and passage, up or downstream, for business or pleasure, and to exercise the incidents of navigation - boating, swimming, fishing, hunting, and all recreational purposes." This statute passed shortly after a case in which Silver Creek in Blaine County was deemed navigable for all recreational purposes, because it had been used for floating timber.
Portaging over private land and around irrigation dams or other obstructions that interfere with the navigability of the stream is expressly permitted by statute. The boater must reenter the stream immediately below the obstruction at the nearest point where it is safe to do so.
4. Statutes Governing Landowner Liability
Idaho's recreational use statute (Idaho Code §§ 36-1601 to 1604) was passed in 1976. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not specify whether the landowner is protected from liability for willful or wanton misconduct. Furthermore, the statute does not protect the landowner if a fee is charged for the use of the property.
Idaho's tort claims act, which defines the scope of the government?s liability, is detailed in Idaho Code § 6-901 et seq.
5. Miscellaneous
Trespassing on property that is posted against trespassers with signs or painted fenceposts, or where oral or written personal communication to leave the property is given by the owner or lessee, is a misdemeanor.
1. Basic Description
In Illinois, the list of navigable streams consists mostly of those streams that were shown by "meander lines" on maps created by government surveys conducted during the latter 1800?s and the early 1900?s. The state owns the title of the streambeds of meandered streams and ponds in trust for the people. Consequently, the public can use these bodies of water for fishing and boating, although it is unclear whether the Illinois public trust includes the right of portage.
2. State Test of Navigability
Navigable waters open to the public in Illinois include those waters navigable in fact. If a navigable in fact streambed is privately owned (most streams navigable in fact are owned and held in trust by the state), the stream will be subject to a public easement of navigation. Illinois?s "navigable in fact" test is applied in a manner similar to the federal title test, under which a stream is navigable if, in its ordinary condition, it furnishes a highway over which useful commerce is capable of being carried in the customary modes.
Additionally, the beds of streams and lakes shown on maps made by the federal government during various surveys conducted during the late 1800s and early 1900s are also held in trust for the people, whether they are navigable in fact or not. In applying the federal test, the courts will usually look to see whether a stream was meandered. Where a stream was not meandered or declared navigable in the surveys, the courts are reluctant to make a finding to the contrary.
3. Extent of Public Rights in Navigable Rivers
The public has the right to recreate on waters over state owned streambeds. This includes "boating , fishing, and the like." If a streambed is privately owned but the stream is navigable in fact, the public easement is limited to navigation, and does not include hunting and fishing. It is unclear whether activities incident to navigation, such as portaging, are allowed under Illinois? public trust doctrine, but portaging is probably permissible in many navigable streams because the federal navigation servitude should apply to these streams.
4. Statutes Governing Landowner Liability
Illinois's recreational use statute (Ill. Ann. Stat. Ch. 70 §§ 31-37) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Illinois's tort claims act, which defines the scope of the government?s liability, is detailed in the Court of Claims Act, Ill. Rev. Stat. Ch. 37 439.8 (state) and Ill. Rev. Stat. Ch. 85 1-101 to 10-101 (local government units).
5. Miscellaneous
Criminal trespass on private land is a class B misdemeanor and occurs where notice has been given indicating that entry is forbidden.
1. Basic Description
Indiana law is somewhat confusing as it applies to recreational boaters. Boaters may clearly use larger navigable streams where the state owns the streambed, as well as smaller streams that have been statutorily designated as recreational rivers. Whether smaller navigable streams, which have privately owned beds, may be used for boating is presently unclear.
2. State Test of Navigability
An Indiana statute defines which streams are navigable as streams that have been declared navigable or a public highway by at least one of the following:
a court; the Indiana general assembly; the United States Army Corp of Engineers; the Federal Energy Regulatory Commission; a board of county commissioners under IC 14-29-1-2; and/or the commission following a completed proceeding under 4-21.5.In addition, a list of declared navigable streams, called the "Roster of Indiana Waterways Declared Navigable" is set forth at 15 IR 2385. A board of county commissioners may declare a stream navigable upon the petition of at least 24 freeholders in the county that reside within the vicinity of the stream. The public also has rights in inland waterways, which are defined as public waters that are not navigable waterways.
Indiana courts have recognized public rights in rivers that do not pass the federal title test. One case defined navigable streams as those with sufficient capacity for useful purposes of navigation. Useful purposes are trade and travel in the ordinary modes. The courts have recognized that some streams are navigable for certain kinds of inferior craft, and these streams are subject to the jurisdiction of the state. But navigation by canoes and the floating of timber is not sufficient to establish the navigability of a river. Therefore, the exact test for determining which rivers are subject to exclusive state jurisdiction is not clear. Additionally, it should be noted that Neaderhouser was decided over 130 years ago.
Despite the fact that navigability has been discussed by Indiana authorities, the law determining which Indiana streams are open to recreational boating is far from clear. The exception to this is any stream designated as a recreational stream.
3. Extent of Public Rights in Navigable Rivers
The state owns the streambed of navigable streams under the federal title test to the low water mark. In such streams the public has the right to boat, wade, fish, etc.; however, the public does not have the right to moor a boat to a tree on the bank of a navigable river. This casts some doubt on whether there exists a right to portage in these streams. In streams which are navigable, but the bed is privately owned, the public does not have the right to fish. The right to portage in streams where the bed is privately owned is doubtful.
4. Statutes Governing Landowner Liability
Indiana's recreational use statute (Ind. Code Ann. § 14-2-6-3) was passed in 1969. This law does not specify whether the landowner has a duty to keep the property safe or a duty to warn. It does not require a landowner to provide an assurance of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
Indiana's tort claims act, which defines the scope of the government?s liability, is detailed in the Indiana Tort Claims Act, Ind. Code § 34-4-16.5-1 et seq.
5. Miscellaneous
Indiana has established a program to designate streams as natural, scenic or recreational and to acquire adjacent lands. Boaters can use recreational rivers, and probably natural and scenic rivers.
The Kankakee River has been declared navigable from Indiana?s border with Michigan to the border with Illinois.
Criminal trespass on private land is a class A misdemeanor and occurs where oral or written notice, including posting of signs, has been given indicating that entry is forbidden.
1. Basic Description
For an Iowa stream to be navigable it must be capable, for at least six months of the year, of supporting a vessel holding at least one person. The public can boat, swim, fish, and wade in navigable streams. The right of the public to portage upon banks is undecided in Iowa.
2. State Test of Navigability
Iowa has adopted a statutory test for determining navigability of streams. To be considered navigable, a stream must have definite banks and bed, and there must be visible evidence of flowing surface water. In addition, a navigable waterway must be able to support a vessel capable of carrying at least one person during a total of six months of the year.
3. Extent of Public Rights in Navigable Rivers
Navigable streams are public streams in Iowa and are subject to use by the public for navigation purposes in accordance with the law. The land underlying public waters is subject to a public trust enabling public use of the water flowing over it. Boating in small craft for recreation, swimming, fishing, and wading are permissible uses by the public.
In discussing the extent of public rights to use navigable rivers, the Attorney General states that portaging over [not around] shallow areas in the stream created by low flow levels is permissible under Iowa Code § 462A.69 because it is necessary or incident to using the streams in a manner permitted by the statute. However, the opinion failed to specifically address portaging over adjoining privately owned banks. The Iowa statute addressing trespass, which is superseded by Iowa Code § 462A.69 where they conflict, also fails to provide an answer to this question.
A landowner that fences or otherwise blocks a stream navigable under Iowa Code § 462A.69 may be liable in nuisance for interfering with a public right.
4. Statutes Governing Landowner Liability
Iowa's recreational use statute (Iowa Code Ann. §§ 111C.1 to .7) was passed in 1967. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Iowa's tort claims act, which defines the scope of the government?s liability, is detailed in the Iowa Tort Claims Act, Ch. 25A (state) and the Tort Liability of Governmental Subdivisions, Ch. 613 A.
5. Miscellaneous
1. Basic Description
Many Kansas streams are non-navigable. Navigable streams must be able to be used to transport the local products (usually agricultural and not silvicultural products such as logs). This has caused the test in Kansas to be even stricter than the log float test. The public may use a stream up to the ordinary high water mark; no law discusses whether land above this mark can be used for portage.
2. State Test of Navigability
Kansas has followed Colorado?s lead in limiting the waters that are open to the public. The test of navigability in Kansas is the "navigable in fact test;" therefore, it is basically the same as the federal commerce test. "[W]hether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."
In a case involving the Neosho River, the Neosho was determined to be non-navigable despite the operation of ferryboats, floating of logs, and use by motor boats for pleasure, because the river contains shallow riffles which boats need to be dragged across. Additionally, the river had never been used to transport agricultural products. Similarly, Shoal Creek was declared non-navigable despite use by a canoe rental company that ran float trips on the creek and use by another company for plant collections. This ruling was because the creek had shallow riffles that even a canoe needed to be dragged across and the creek had not been used for valuable floatage in transportation to market of the products of the country through which it runs.
3. Extent of Public Rights in Navigable Rivers
The public has the right to use navigable streams for recreational purposes, including boating, up to the ordinary high water mark. Kansas's courts have not used the statute, which dedicates "All water within the state of Kansas . . . to the use of the people of the state . . . ," in support of a right to use water for recreational purposes. This is contrary to some other jurisdictions with similar statutes. In fact, the statutory definition of criminal trespass includes entering on non-navigable water.
The state owns the beds of navigable rivers, and the riparian?s land extends to the bank of the stream, which is the ordinary high water mark. Owners of the bed have the exclusive right of control of everything above the streambed, which also lends support to the idea that where the streambed is privately owned, the public cannot use the surface.
Kansas law has not dealt with the issue of portage and other incidents of navigation on navigable streams.
4. Statutes Governing Landowner Liability
Kansas's recreational use statute (Kan. Stat. Ann. §§58-3201 to 3207) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Kansas's tort claims act, which defines the scope of the government?s liability, is detailed in Kan. Stat. Ann. § 75-6101 et seq.
5. Miscellaneous
In Kansas, the Arkansas, the Kansas, and the Missouri Rivers have been declared navigable, and the Neosho, the Delaware, and the Smoky Hill Rivers have been declared non-navigable.
Criminal trespass on private land or non-navigable water that is fenced or posted against trespass or where the owner has communicated to the trespasser is a class B nonperson misdemeanor.
1. Basic Description
Kentucky?s right of passage extends to recreational boating, but only on large streams capable of floating logs for commerce. Although boaters may thus access navigable streams, the definition frequently excludes smaller creeks and streams capable of floating recreational boats. On navigable streams, the right of portage probably exists as a matter of necessity.
2. State Test of Navigability
Kentucky?s state test of navigability is the "navigable in fact" test, similar to the federal commerce test. "If the stream, in its natural condition, is capable of being used for floating vessels, rafts, logs, etc., and has in the past been used for that purpose, the public has an easement in it." It is not essential that the useful capacity of the stream be continuous (all year), as long as the regularly occurring fluctuations make the stream useful as a highway. Kentucky expressly rejected the recreational boating test, so the fact that a skiff or canoe can float a stream is of no matter. The true test is whether the stream is generally and commonly useful for some purpose of trade or commerce of a substantial and permanent character. Even where a ferry has operated on stretches of a stream, the stream may not be navigable.
In Murray, Chestnut Creek was found to be non-navigable because it had not been used for log driving, nor was it useable for floating logs without assistance from persons on the banks. This was the ruling despite the fact that during freshets the creek received considerable amounts of water for several hours. Straight Creek, a ten-foot wide and four-foot deep creek during heavy flows, has also been declared non-navigable, because timber could not be floated without the aid of splashdams.
3. Extent of Public Rights in Navigable Rivers
The public can use navigable streams for recreational purposes, including the stream bottoms, despite the fact that streambeds of navigable rivers are owned by the adjacent riparian landowner. Public use of a navigable stream extends to the ordinary high water mark.
The existence of a right of portage in Kentucky is unclear. Some cases held that "the right which the public enjoys in a navigable stream is, in general, limited by its banks. "[T]he absolute rights of persons in the use of a navigable stream for the purpose of navigation extend alone to the bed of the stream, and not to the appropriation of the soil, trees, and vegetation on its banks, either permanently or temporarily, to their own use. . . ." However, one case recognized the right to use the banks of a navigable stream to effect floating logs or to retrieve stranded logs "as necessity may require," because such use is an activity incident to the use of the river. Portage is likewise an activity incident to the use of a navigable river and may be available to boaters as a matter of necessity or choice of evils.
4. Statutes Governing Landowner Liability
Kentucky's recreational use statute (Ky. Rev. Stat. Ann. §§ 150.645 and 411.190) was passed in 1968. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Kentucky's tort claims act, which defines the scope of the government?s liability, is detailed in the Kentucky Board of Claims Against the Commonwealth, Ky. Rev. Stat. Ann. § 44.070 et seq.
5. Miscellaneous
Criminal trespass on private land that is fenced or posted against trespass or where the owner has communicated to the trespasser is a class B misdemeanor.
1. Basic Description
Navigable streams in Louisiana are those that have been or are capable of being used in commerce, i.e., capable of floating commercial logs. In navigable rivers, the state owns the riverbed, and the public can use the banks up the ordinary high water mark for activities related to navigation, an example includes tying-off and possibly portaging. Non-navigable rivers can be floated as well; the public has the right to use the running water in non-navigable streams, but may not use the banks.
2. State Test of Navigability
In Louisiana, streams are navigable if they are "navigable in fact," and the "navigable in fact" test is the same as the federal commerce test. A body of water is navigable if it was capable at the time of statehood (1812) of being utilized in its natural condition as a highway of commerce in the customary mode of trade and travel. Evidence of using a stream for floating logs can satisfy this test.
3. Extent of Public Rights in Navigable Rivers
The public has the right to recreate in navigable streams. In addition, one case held that the public may utilize the running waters of the Amite River, a non-navigable stream. Permissible uses of the running water seemed to include use of the streambed, for activities such as "fishing, swimming, wading, tubing, stone skimming, digging for clams, and baptizing church members." This rule is an extension of the law that running water is a "public thing" that belongs to the state. Riparian landowners on non-navigable streams cannot interfere with the use of the stream. However, even though Chaney was a Louisiana Supreme Court decision, use of Chaney has been avoided in later decisions, and its value as good precedent has been questioned.
The banks of navigable rivers are private things that are subject to public use for activities incidental to navigation. The banks of the river are defined as the area between the ordinary high and low water marks but includes levees in close proximity to the water. But privately owned banks on navigable rivers cannot be used for recreational purposes, such as fishing. Banks above the ordinary low water mark along non-navigable streams cannot be used at all by the public.
4. Statutes Governing Landowner Liability
Louisiana's recreational use statute (La. Rev. Stat. Ann. §§ 2791 & 2795) was passed in 1964. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
5. Miscellaneous
Criminal trespass on private land or non-navigable lakes that are fenced or posted against trespass with signs or paint marks on trees, or where the owner has communicated to the trespasser is punishable by a fine of up to $500 for the first offense.
1. Basic Description
Most streams in Maine are treated as public highways and are subject to a public easement and right of passage. A navigable river is one capable of floating boats, rafts or logs. Boaters may freely scout and portage incidental to their use of the river.
2. State Test of Navigability
In Maine, all streams of sufficient capacity to float boats, rafts, or logs are public highways, and as such are subject to the use of the public. A river?s ability to be used for transportation is the defining criterion of navigability and a question of fact. Beyond that, one court has said that the right of the public to use navigable streams "has made the terms ?navigable and floatable? practically synonymous." In one case, a river that narrowed to seven or eight feet in places was deemed navigable under this test. Thus, Maine?s navigability test is similar to a recreational boating test, where if the stream could be floatable by a kayak, it is navigable and a public highway. As early as 1907, Maine courts realized that recreation was "assuming features and incidents as valuable to the public as trade and manufacturing." It concluded that navigability for pleasure is as sacred in the eyes of the law as navigability for any other purpose. A stream need only be navigable for periods sufficient to allow a beneficial purpose, not necessarily for the entire year.
3. Extent of Public Rights in Navigable Rivers
A navigable stream under the state test of navigability is a stream that is subject to public use as a highway for the purposes of commerce and travel whether for business or pleasure. Public highways afford an equal right to each citizen to their reasonable use, and any unreasonable obstruction that prevents a use creates a nuisance in the judgment of the law. Reasonable use includes a temporary right of way over the adjoining land if the public highway (the navigable stream) is temporarily impassible by the overflowing of the river. Thus, a strong case for a right to portage over private land in Maine can be made.
4. Statutes Governing Landowner Liability
Maine's recreational use statute (Me. Rev. Stat. Ann. Tit. 14, § 159-A) was passed in 1979. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Maine's tort claims act, which defines the scope of the government?s liability, is detailed in the Maine Tort Claims Act, Me. Rev. Stat. Ann. § 14-8101 et seq.
5. Miscellaneous
1. Basic Description
Only streams that are tidal and capable of being boated, including small rowboats and possibly kayaks, are navigable and open to the public. What rights, if any, a boater has on streams that are not influenced by the tide has not been conclusively determined.
2. State Test of Navigability
Maryland adheres to the ancient common law rule that navigable streams are those streams subject to the ebb and flow of the tide. A second test, whether the stream is navigable in fact by small boats such as rowboats, might also be employed by a court as a additional restriction on determining whether a tidal stream is navigable. The state owns the bottoms of navigable streams, and the public has the right to use the shore of navigable streams up to the ordinary high water mark.
3. Extent of Public Rights in Navigable Rivers
The public has the right to recreate in waters subject to the ebb and flow of the tide. This right extends to the ordinary high water mark. Of course, under the federal navigational servitude, the public has the right of navigation in waters navigable in fact that are not subject to the tide. What other rights the public has in waters not subject to the tide, if any, has not yet been determined.
4. Statutes Governing Landowner Liability
Maryland's recreational use statute (Md. Nat. Res. Code Ann. NR §§ 5-1101 to 1108) was passed in 1957. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Maryland's tort claims act, which defines the scope of the government?s liability, is detailed in the Maryland Tort Claims Act, Ann Code of Md., State Gov't § 12-101 et seq. (state government) and CJ §5-401 et seq. (local government).
5. Miscellaneous
Trespassing on property that is conspicuously posted against trespassers is a misdemeanor subject to a fine of up to $500 and 3 months in prison.
1. Basic Description
In short, streams capable of being used for useful purposes such as trade and travel in the ordinary modes are subject to a public easement or right of passage. Older cases have held that navigable streams do not include those that are capable of being navigated by canoes. Navigable rivers can be used for recreational boating.
2. State Test of Navigability
A public easement exists in streams that are not affected by the ebb and flow of the tide that are navigable in fact. Streams navigable in fact are streams that have "been used for useful purposes of navigation- that is, for trade and travel in the usual and ordinary modes." At least two older cases recognized that rivers are navigable and subject to a public servitude or right of passage, even above tide waters, "provided they are navigable by ships or boats, or perhaps any other floating vehicle." While statements such as these appear to make the navigable in fact test equal to a recreational boating test (i.e. the servitude exists if you can kayak it), courts have held otherwise. A Massachusetts court said, "it is not every small creek in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable." Thus, the navigable in fact test is not as inclusive as the recreational boater test. Whether a river needs to be navigable all year or just during high flow season is undecided.
3. Extent of Public Rights in Navigable Rivers
The public easement or right of passage includes use of the river by boats or other crafts "for purposes of pleasure and convenience." The easement exists whether or not the bottom is privately owned. While these cases do not mention wading, fishing, or portaging, the right of passage or public servitude on navigable streams probably includes those types of activities incident to travel on the stream. Otherwise, the right of passage would be useless in some streams, and the practical extent of the right would be inconsistent with the scope of the right to boat for pleasure and convenience.
4. Statutes Governing Landowner Liability
Massachusetts's recreational use statute (Mass. Gen. Laws Ann. Ch. 21, § 17c) was passed in 1972. This law does not specify whether the landowner has a duty to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property, though voluntary payments are allowed.
Massachusetts's tort claims act, which defines the scope of the government?s liability, is detailed in the Massachusetts Tort Claims Act, Mass. Gen. Laws Ann. Ch. 258.
5. Miscellaneous
1. Basic Description
The public can use streams capable of floating commercial logs at seasonal high flows. Rivers that are navigable at times of spring high flows are navigable all year. Even though the public has the right to wade and fish in navigable streams, there is some question as to whether the law protects the right to recreationally boat on navigable rivers.
2. State Test of Navigability
In Michigan, "strictly navigable streams" are rivers that satisfy the federal commerce test for navigability- they are navigable in fact by large vessels engaged in commerce. As in all federally navigable streams, the public right of navigation in these waters is paramount to the riparian rights of private owners. Smaller inland streams are also subject to the public trust doctrine in Michigan if they satisfy the commercial log-floating test of navigability. Michigan expressly chose not to adopt the recreational boating test as its state test of navigability. The application of the log-flotation test is ad hoc, and navigability may be demonstrated or assumed where records indicate use for commercial log floating or where other streams of comparable size have been declared navigable under the commercial log-floating test. Navigability under this test has been found where spring freshets occur that are capable of floating logs. Even though the freshets are seasonal, the public trust applies all year. However, a river can become non-navigable over time. In addition, the fact that the public uses a river for a long period of time can be an important factor in favor of allowing public use in close cases.
3. Extent of Public Rights in Navigable Rivers
Persons on inland navigable waters (navigable under the state test) do not have the same rights as riparian owners. Apart from the Great Lakes, riparians, not the state, own the bed to the thread of the river. Nevertheless, fishing and wading were recognized in the Bott decision as a recreational use incident to the navigational servitude over inland navigable waterways. Oddly, the Bott court expressly reserved the question as to whether recreational boating is a use protected by the navigation servitude as well (the court noted that fisherman are quiet and unobtrusive as compared the nuisance like behavior of recreational boaters). So be considerate!
The navigation servitude extends to the ordinary high water mark. Streams deemed non-navigable by the log-floating test are private, and riparian owners have the right to exclude members of the public, even if there is a navigable means of access.
4. Statutes Governing Landowner Liability
Michigan's recreational use statute (Mich. Comp. Laws. Ann. § 300.201) was passed in 1953. This law does not specify whether the landowner has a duty to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property, though a landowner may charge a fee for "U-Pick" crops and not lose immunity.
Michigan's tort claims act, which defines the scope of the government?s liability, is detailed in Mich. Comp. Laws §§ 691.1401 - 691.1415.
5. Miscellaneous
Willful trespass after receiving notice to depart is a misdemeanor with a fine of up to 50 dollars and jail sentence up to 30 days.
1. Basic Description
The public can use streams for recreational boating that can be legally accessed. When a stream is public, it can be used for wading, fishing, and swimming. From a legal standpoint, Minnesota is an ideal state for recreational boaters.
2. State Test of Navigability
The Minnesota courts have adopted a test for determining which waters are "public bodies of water." A public body of water is any body of water that is susceptible of use for recreational boating. For example, the ability to float a canoe would satisfy the test. Perhaps because the test is so inclusive, Minnesota authorities have not decided whether streams satisfy the test if they are capable of recreational boating for only a portion of the year. If the stream satisfies the test, the public trust applies to the stream. The Public Water Inventory is a list of waters that have been declared subject to the public trust.
3. Extent of Public Rights in Navigable Rivers
Where the stream is navigable under the state test, even if the bottom is privately owned because the stream does not satisfy the state title test of navigability, the right to recreationally use the water is held in the public trust. Recreational use includes boating, swimming, fishing, and wading. Anyone who can gain lawful access to a navigable stream has full access to the entire surface of the body of water. Incidental use of privately owned streambeds is also permissible, and this includes at least any use incidental to recreational uses. There is some doubt as to whether portaging is permissible under the incidental use doctrine.
4. Statutes Governing Landowner Liability
Minnesota's recreational use statute (Minn. Stat. Ann. §§ 87.01 to .03) was passed in 1961. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Minnesota's tort claims act, which defines the scope of the government?s liability, is detailed in the Minnesota Tort Claims Act, Minn. Stat. Ann. § 3.736 et seq. (state) and Minn. Stat. Ann. § 466.01 et seq. (local).
5. Miscellaneous
Trespass includes entrance onto land that has been plowed or has crops, even where the land is not posted and no other notice is given.
1. Basic Description
Rivers meeting the statutory definition of navigability are subject to the public trust doctrine.
2. State Test of Navigability
Mississippi employs a relatively simple and clear test of navigability to determine which waterways are public. Natural streams which have a mean annual flow of not less than 100 cubic feet per second, as determined and designated on maps by the Mississippi department of Environmental Quality are public waterways of the state on which the public has the right of free transport in the stream and the right to fish and engage in water sports. The statute only applies to naturally flowing streams. The beds and bottoms of navigable waters are susceptible to private ownership, but this does not have much effect on the public?s use of the river (see below).
In addition, the public may be able to use waterways that have customarily been used for recreational use, as evidenced by a long history of recreational use. At least one court has held that the public can acquire rights in a body of water through prescription if there is a long history of public use.
3. Extent of Public Rights in Navigable Rivers
According to statute, the right to engage in water sports on public waterways is paramount to the rights of riparians, with the exception that the public must secure legal access. The right of the public to use the waterway includes activities associated with the normal use of the waterway for this purpose, such as tying a boat to a tree and wading where the streambed is privately owned. However, the statute also states that "nothing herein contained shall authorize anyone using said public waterways . . . to trespass upon adjacent lands." Thus, while the statute seems to forbid portaging, at least an argument can be made that portaging is a normal use incident to recreational boating in navigable rivers.
4. Statutes Governing Landowner Liability
Mississippi's recreational use statute (Miss. Code Ann. §§ 89-2-1 to 7,21-27) was passed in 1978. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
5. Miscellaneous
Illegal trespass is committed only after a person has been warned not to trespass in person or by a suitable notice in a conspicuous place on the land.
1. Basic Description
Missouri streams capable of floating logs or railroad ties are subject to a public use. The public might also be able to use streams that have a long history of public use for boating. The public can use these streams for boating, fishing and wading.
2. State Test of Navigability
Missouri holds in the public trust only the beds of navigable rivers that satisfy the federal title test. However, the public holds an easement in waters that are suitable for public and commercial purposes. Waters subject to the public easement are deemed public highways. A stream is a public highway if it is capable of transporting commerce in any manner in which it is ordinarily transported. If a stream is capable of floating logs or railroad ties for several months during the year, the stream is a public highway. A river that is only capable of floating small crafts (e.g., rowboats and canoes) might also be a public highway subject to the public easement, especially if the public has used the waterway for a long period of time.
3. Extent of Public Rights in Navigable Rivers
The scope of the public?s easement in rivers, where it exists, includes uses incident to travel on the river, including floating, fishing and wading, for business and pleasure. Wading is allowed despite the fact that the bed may be privately owned. The issue of portage has not been decided in Missouri.
4. Statutes Governing Landowner Liability
Missouri's recreational use statute (Ch. 357 §§ 537.345 to .348) was passed in 1983. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
Missouri's tort claims act, which defines the scope of the government?s liability, is detailed in Mo. Stat. § 537.600 et seq.
5. Miscellaneous
In order for a person to be liable for trespass on the lands of another, notice against trespass must be given.
Portions of the following rivers have been deemed navigable and subject to a public easement in Missouri: the Meramac River in Dent County, Indian Creek, the Current River, the Blue River, the Gasconade River in Pulaski County, and the James River at Kissick.
1. Basic Description
Montana statutes allow public use of streams that are capable of being used for recreational purposes. The public can fish, hunt, swim, and float streams satisfying this test. The public also has a right of portage in these streams.
2. State Test of Navigability
Under the Montana constitution, all waters of the state are owned by the state for the use of its people, and this provision been interpreted as establishing a public trust over the waters of the state. Montana has adopted a statutory recreational use test to define navigability for purposes of establishing the public trust. The statute states, with limitations, that "all surface waters that are capable of recreational use may be so used by the public without regard to the ownership of the land underlying the waters." Use of the body of water is permitted up to the high water mark.
3. Extent of Public Rights in Navigable Rivers
The right to use waters that satisfy the state recreational test includes recreational uses of the water for fishing, hunting, swimming, floating in small craft or other floatation devices, craft propelled by oar or paddle, other water-related pleasure activities, and related unavoidable or incidental uses. This right extends to the high water mark, but only as is necessary to use the water itself, and use of the bed and banks must be of minimal impact.
The right to use the water for recreational use also includes the right to use the underlying and adjoining real estate essential to the enjoyment of the public?s ownership of the water. This includes a right of portage around barriers in the least intrusive manner possible, but this right does not include camping on privately owned banks without the owner?s permission. The Montana legislature went so far as to pass a statute that required private landowners to provide a portage route around artificial barriers, but the Montana Supreme Court later struck this provision. The use of a dry streambed is not permitted, unless other parts of the stream had water capable of recreational use and the use of the dry streambed was to portage around a barrier.
A prescriptive easement is not acquired by recreational use under the statute.
4. Statutes Governing Landowner Liability
Montana's recreational use statute (Mont. Rev. Code Ann. §§ 70-16-301 & 302) was passed in 1965. This law does not specify whether the landowner has a duty to keep the property safe or a duty to warn. The landowner does not have to provide an assurance of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
Montana's tort claims act, which defines the scope of the government?s liability, is detailed in the Montana Comprehensive State Insurance Plan and Tort Claims Act, Mont. Code Ann. § 2-9-101 et seq. (state and local). Municipal immunity is waived pursuant to Mont. Code Ann. § 7-1-4125, which refers to the tort claims act.
5. Miscellaneous
1. Basic Description
Nebraska law has very little to say on the public use of streams. The public has a right to portage around obstructions in a river and a right to float smaller watercourses connected to navigable rivers. Because Nebraska does not own title to any streambeds, whether it is legal to contact the streambed intentionally, but incidental contact is probably allowed.
2. State Test of Navigability
Nebraska law regarding public access to streams is currently uncertain, mainly because of a lack of law on the subject. The only stream that has been declared navigable is the Missouri. Even if a river is navigable under the federal title test, Nebraska does not claim ownership of the streambed; title to the streambed lies with the riparian landowner.
3. Extent of Public Rights in Navigable Rivers
Whether navigable or not, the public has the right to float the streams in Nebraska. Nebraska?s constitution dedicates the use of the water of every stream in the state to the public. A Nebraska statute allows public access to cutoffs, chutes, and bayous that are connected to navigable streams and can be accessed by boats. The purpose of this statute is to further implement the aforementioned provision of Nebraska?s constitution. If the Nebraska courts decide to adopt some type of test for determining which streams can be used by the public, the aforementioned constitutional provision and the statute sanctioning the use of cutoffs, chutes, etc. suggests that a recreational boating test should be adopted.
However, how a Nebraska court will rule with regard to contact with the streambed is not clear. Incidental contact seems much more innocuous than portaging, and since portaging is allowed by statute, incidental contact will probably be allowed. Whether wading is allowed is anybody?s guess.
The right of portage is allowed by statute in Nebraska. The statute exempts from criminal trespass liability boaters who enter private land while "in the process of navigating or attempting to navigate with a non-powered vessel any stream or river in this state and [the boater finds] it necessary to portage or otherwise transport the vessel around any fence or obstructions in such stream or river."
4. Statutes Governing Landowner Liability
Nebraska's recreational use statute (Neb. Rev. Stat. §§ 37-1001 to 1008) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are group rates.
Nebraska's tort claims act, which defines the scope of the government?s liability, is detailed in the Nebraska Tort Claims Act, R.R.S. § 81-8.029 et seq. and Political Subdivisions Tort Claims Act § 23-2401 et seq.
5. Miscellaneous
Criminal trespass on private land that is fenced or posted against trespass or where the owner has communicated to the trespasser is a class III misdemeanor.
1. Basic Description
In Nevada, navigable streams are those capable of being used or have been used to transport commercial products, such as logs. These streams can be floated, and probably fished. The right to portage obstructions is undecided in Nevada.
2. State Test of Navigability
Nevada courts have not ruled as to whether the public trust exists in streams that are too small to pass the federal title or commerce test. Therefore, streams are navigable if used or susceptible of being used at regularly occurring times as highways for commerce over which trade and travel is or may be conducted in customary modes of travel on water. Nevada courts have applied the federal title test and found that streams that were historically used to drive great quantities of logs satisfy the federal title test.
3. Extent of Public Rights in Navigable Rivers
Although the public trust applies at least to streams navigable under the federal title test and the navigation servitude to streams navigable under the federal commerce test, Nevada law has not defined the extent of the public trust or the navigation servitude. Navigable streams may be boated, and most likely waded and fished, but rights regarding portaging obstruction have not been decided.
4. Statutes Governing Landowner Liability
Nevada's recreational use statute (Nev. Rev. Stat. § 41.510) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
Nevada's tort claims act, which defines the scope of the government?s liability, is detailed in Nev. Rev. Stat. § 41.031 et seq.
5. Miscellaneous
In Nevada, several rivers have been declared to be public by statute or by case law. Trespass is a misdemeanor that occurs when a person enters the land of another after receiving a sufficient warning through postings or fencing.
1. Basic Description
The public can use streams capable of floating logs for commerce. The public must use navigable streams in a reasonable manner.
2. State Test of Navigability
Only a few New Hampshire cases deal with the issue navigability. A navigable stream in New Hampshire is a stream that is navigable in fact. The channel of a public navigable river is properly described as a public highway for floatage when it is capable, in its ordinary and natural stage in the seasons of high water, of valuable public use. The river is a public highway so long as the conditions permit public use. Consequently, the characterization of a river as navigable may change depending on the season and rainfall. Useful purposes, as described by early cases, include transportation by rowboats and rafts or logs for the purpose of commerce or agriculture. Since the cases discuss using the rivers for floating logs, it is undecided whether smaller streams capable of floating only recreational craft are navigable. New Hampshire has not yet added recreational boating to its antiquated list of valuable uses (commerce and agriculture) that determine capacity.
3. Extent of Public Rights in Navigable Rivers
Navigable streams may be used in a reasonable manner. The right to float logs down streams was held to include reasonable incidental use of the banks, e.g. the right to retrieve logs on private land that had been stranded by a flood. If the right to retrieve stranded logs in reasonable, it would seem that wading, portaging, and scouting are reasonable because they are also incident to navigation, but this question has not been settled.
4. Statutes Governing Landowner Liability
New Hampshire's recreational use statute (N.H. Rev. Stat. Ann. § 212.34) was passed in 1961. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees for "U-Pick" crops.
New Hampshire's tort claims act, which defines the scope of the government?s liability, is detailed in N.H. Rev. Stat. Ann. § 541-B: 1 et seq. (administrative claims against the state, political subdivisions excluded).
5. Miscellaneous
1. Basic Description
Two types of streams are boatable in New Jersey: tidal streams and non-tidal, navigable streams. The public can use any stream influenced by the tide, unless prohibited by law in the particular stretch of stream. Navigable streams may be boated, whether or not they are influenced by the tide. This includes streams capable of being used for transporting valuable commerce, such as commercial logs.
2. State Test of Navigability
The public may use New Jersey streams that fall into either of 2 categories: tidal streams or navigable streams. Tidal streams in New Jersey are subject to a public trust. The beds of tidal streams are owned by the state and subject to the public trust. The state owns the beds as far as the flow of the tide extends, and therefore, the ebb and flow tide test is applied without considering navigability.
Under the state test, navigable streams are navigable in fact and do not necessarily have to pass the ebb and flow tidal test. A stream is navigable in fact if it is susceptible to use in transporting valuable commerce in its normal condition. Navigable rivers not subject to the ebb and flow of tides are private waters subject to a navigational servitude. One court observed that navigable in fact rivers are generally tidal, with the exception of the Delaware River above Trenton. The state test does not appear to be any more inclusive than the federal test because use of a stream by small boats does not make a river navigable.
3. Extent of Public Rights in Navigable Rivers
The public has the right to use the water in tidal streams (streams which pass the ebb and flow test) for any lawful purpose, including boating. The public can use the stream up to the high water mark. The public may not fish in navigable streams where the bottom is privately owned. The right of portage is not discussed in the cases, but it could be argued that portage is incident to the right to navigate.
4. Statutes Governing Landowner Liability
New Jersey's recreational use statute (N.J. Stat. Ann. §§ 2S:42A-1 to 7) was passed in 1968. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
New Jersey's tort claims act, which defines the scope of the government?s liability, is detailed in N.J.S.A. 59:1-1 et seq.
5. Miscellaneous
Trespass on private land that is posted with warnings, or where the owner has communicated to the trespasser, or land that is fenced, cultivated land is an offense punishable by a fine of $100-$200.
1. Basic Description
The constitution of New Mexico declares water in a stream to be public. The public has the right to use this water for recreational purposes, subject to the right of appropriators to remove water from the stream (e.g. for irrigation). So, in New Mexico, it seems that you can float any stream for which there is legal access.
2. State Test of Navigability
New Mexico, a state that follows the doctrine of prior appropriation, has taken a different approach to determining public rights in streams where the streambed is privately owned. New Mexico is one of the few states that have used the appropriation doctrine, and not common law navigability tests, to determine which waters are public. In New Mexico, while title to streambeds may be held by a private entity, appropriators hold only a usufructuary right in the water, and title to the water remains in the state. All unappropriated waters from every natural stream, perennial or torrential, are public waters in the public domain. In fact, navigability is but one criterion in determining whether there exists public rights to use a body of water.
While no case or law has carefully defined the criteria for distinguishing public and private waters, the most liberal of tests distinguishing public and private waters is consistent with Red River Valley. Red River Valley defined public waters very broadly, and expressly condoned recreational uses of public waters. The only clearly important factor to distinguishing public from private streams is whether the public has legal access.
3. Extent of Public Rights in Navigable Rivers
Red River Valley recognized a general expansion in the public water doctrine. The public has a right to use these waters for a beneficial use, including recreation and fishing.
No case or statute discusses portaging on private land around obstructions in the stream. While the public doctrine gives the public the right to use the zone between the high and low water marks, the New Mexico attorney general?s office expressed doubts about the right to portage above this zone. The letter cited the trespass statute, which says "knowingly entering or remaining upon posted private property without possessing written permission from the owner or person in control of the land," or "knowingly entering or remaining upon the unposted land of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof. Notice of no consent to enter shall be deemed sufficient notice to the public . . . by posting the property at all vehicular access entry ways." The letter did not discuss portaging as being a necessary incident to the right to navigate.
Red River Valley, however, does provide evidence that portaging may be accepted. The court looked to the laws of the Partidas, which were the prior existing Spanish laws in New Mexico that the New Mexico constitution is based upon. The court cited the following law of the Partidas: "And although the banks of rivers are, so far as their ownership is concerned, the property of those whose lands include them, nevertheless, every man has a right to use them, by mooring his vessels to the trees, by repairing his ships and sails upon them, and by landing his merchandise there; and fishermen have the right to deposit their fish and sell them, and dry their nets there, and to use said banks for every other purpose like those which appertain to the calling and the trade by which they live." This language is tempered by another quote later in the opinion that states, "The small streams of the state are fishing streams to which the public has a right to resort so long as they do not trespass along the banks." This latter statement is not dispositive because it can be argued that use of the bank incident to navigation is not a trespass, and that the court was referring to trespass as it relates to access.
4. Statutes Governing Landowner Liability
New Mexico's recreational use statute (N.M. Stat. Ann. §§ 16-3-9, 17-4-7, & 66-3-1013) was passed in 1973. This law does not specify if the landowner has a duty to keep the property safe. It does specify that a landowner does not have a duty to warn or to provide an assurance of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
New Mexico's tort claims act, which defines the scope of the government?s liability, is detailed in N.M.S.A. 27 § 41-4-1 to 41-4-27 et seq.
5. Miscellaneous
1. Basic Description
In New York boaters can float non-tidal, navigable streams, and portage when necessary. So far, the public has been denied the right to fish in non-tidal navigable rivers.
2. State Test of Navigability
In New York, the test for navigability of non-tidal streams is whether a stream is navigable in fact. In order to be navigable-in-fact, a river must provide practical utility to the public as a means for transportation. Thus, while the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel." "Evidence of recreational use will support a finding that a river is susceptible to commercial use." Additionally, evidence of a river's practical use for transport does not need to be limited to evidence of its capacity for the movement of commercial goods. In fact, Adirondack League Club went so far as to say that recreational use should be part of the navigability analysis and that navigability, in general, turns on evidence of actual practical use or evidence of capacity for practical use. The existence of occasional natural obstructions does not destroy the navigability of a river.
Under New York statutes, navigable waters are "all lakes, rivers, streams and waters within the boundaries of the state and not privately owned, which are navigable in fact or upon which vessels are operated, except all tidal waters bordering on and lying within the boundaries of Nassau and Suffolk counties. A navigable in fact stream is defined as "navigable in its natural or unimproved condition, affording a channel for useful commerce of a substantial and permanent character conducted in the customary mode of trade and travel on water. A theoretical or potential navigability, or one that is temporary, precarious and unprofitable is not sufficient, but to be navigable in fact a lake or stream must have practical usefulness to the public as a highway for transportation."
Tidal streams are those streams that are subject to the ebb and flow of the tide. Tidal streams are navigable at law, a rule that has survived from the English common law.
3. Extent of Public Rights in Navigable Rivers
The public has different rights in New York, depending on whether the stream is non-tidal and navigable in fact or the stream is tidal and navigable in law. In non-tidal streams that are navigable in fact (the rivers of greatest interest to boaters), the streambeds are privately owned. With regard to these streams, New York follows the ancient common law rule that the public has the right to navigate up to the high water mark, but may not fish in these streams. Riparian owners still retain their full panoply of rights along rivers serving recreational use, subject only to the long recognized navigational servitude. However, the right to navigate carries with it the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands. However, any use of private riverbeds or banks that is not strictly incidental to the right to navigate gives rise to an action for trespass.
The beds of tidal streams are owned by the state. The public has the right to use tidal streams for boating, fishing, and wading.
4. Statutes Governing Landowner Liability
New York's recreational use statute (N.Y. Gen. Oblig. Law § 9-103) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
New York's tort claims act, which defines the scope of the government?s liability, is detailed in CLS, Court of Claims Act § 8.
5. Miscellaneous
1. Basic Description
North Carolina?s state test of navigability is equivalent to a recreational boating test. If a boater can float the river, the river is navigable. (This may change in the future.) The public can boat, wade, and fish in navigable rivers.
2. State Test of Navigability
North Carolina has adopted the "navigable in fact" test as the state test of navigability. This determines title to the bottom of watercourses up to the high water mark and the extent of the public trust. A river is navigable in fact if the river is capable of being used for purposes of trade and travel in the usual and ordinary modes. The recent Gwathmey case stated that "the controlling law in North Carolina is as follows: ?If a water is navigable for pleasure boating it must be regarded as navigable water, though no craft has ever been put upon it for the purposes of trade or agriculture. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation.?" Thus, the North Carolina navigable in fact test is equivalent to a recreational boating test, where the ability to kayak a stream should make the stream navigable. In addition, the extent to which the public has used the stream for pleasure boating can be a factor in the determination of navigability.
While North Carolina law sounds advantageous to boaters and currently is boater friendly, Gwathmey will probably be overruled. Title to streambed is determined by the federal title test, and navigable streams under the federal title test do not include smaller streams that are only capable of being navigated by smaller recreational craft. Thus, North Carolina probably does not have title to as many streambeds as Gwathmey would suggest. Consequently, because the waters impressed with the public trust occur over state owned streambed, the public trust may not exist on smaller rivers capable of navigation only by recreational watercraft. A court or the legislature could adopt a state test of navigability that creates a public easement or right of passage in smaller rivers capable of navigation only by recreational watercraft.
3. Extent of Public Rights in Navigable Rivers
Lands lying beneath navigable waters and navigable waters under the state test are subject to the public trust doctrine. The public trust includes the right to use the water for pleasure boating. Because the public owns the riverbeds of navigable waters, contact with the riverbed is not an issue. While portaging is not specifically mentioned in the cases and is still an open question, the right to anchor is permissible because it is essential to navigation. To the extent that portaging is essential to navigation, an argument can be made that portaging is also permissible.
Although the Gwathmey case made certain that pleasure boating was the test of navigability, the court also held that the state has the power to grant a fee in lands beneath navigable streams and that the state did not have to transfer these lands subject to the public trust. Transferred land would not be subject to the public trust where the intent to make such a transfer was evidenced by clear and specific words. Therefore, it may be possible for an individual to own the bed a navigable river, and such might not be impressed with the public trust. If this were the case, the public might not be able to fish and wade, although the right to navigate is protected by the federal navigation servitude.
4. Statutes Governing Landowner Liability
North Carolina's recreational use statute (N.C. Gen. Stat. § 113A-95) was passed in 1987 (Trails Act). This law does not specify if the landowner has a duty to keep the property safe, a duty to warn, to provide an assurance of safety, or if the landowner is protected from liability for willful or wanton misconduct. Protection from liability is lost if a fee is charged, but this only applies to trails and not other uses of land.
North Carolina's tort claims act, which defines the scope of the government?s liability, is detailed in N.C. Gen. Stat. §§ 143-291 to 143-300.1.
5. Miscellaneous
North Carolina has a statute that limits local, private, and special legislation relating to non-navigable streams. North Carolina also has a statute making it illegal to place obstructions that impede or retard flows in navigable streams.
Trespass on posted land and water is a misdemeanor.
1. Basic Description
North Dakota law concerning the public?s right to use waters only capable of recreational use is currently in a state of uncertainty. When it does decide the issue, North Dakota is likely to allow use of waters that are capable of being used for recreational boating. Whether there is a right to portage is also unclear at this time.
2. State Test of Navigability
North Dakota law regarding the test for determining the navigability of streams is currently uncertain. The only cases applying a navigability test have been in the context of contests for title. In these, the courts have used a range of tests, including the recreational or "pleasure" boating test and the federal title test (navigable at law at the time of statehood), to determine title to the bottoms. The use of the recreational boating test for determining title to the bottoms is ideal for boaters because the state owned bottoms would be subject to the public trust. However, the use of the recreational boating test is not consistent with the federal title test, set forth by the Supreme Court, for purposes of determining title; North Dakota Courts? use of the recreational boating test is on shaky ground. Consequently, the question of which test the courts will apply for determining the extent of the waters subject to the public trust remains unclear.
There is, however, a good chance that North Dakota will adopt the recreational boating test. First, the courts were willing to adopt the recreational boating test long ago, because the importance of recreational type uses was obvious even then. Second, a letter from the Attorney General expressed the opinion that "the public has the right to use rivers, streams, wetlands, and lakes that hold enough water to float a pleasure boat for most of the year." Furthermore, this view represents the view of a majority of states. Finally, there is statutory and constitutional support for extending the public trust beyond bottom ownership.
3. Extent of Public Rights in Navigable Rivers
All navigable streams are deemed public highways. The state owns the land to the low water mark on navigable streams, but retains rights in the shore between the high and low water marks. Neither the courts nor the legislature have definitively ruled upon the extent of the public trust in navigable waters. The North Dakota Supreme Court has said in dicta that the incidents of public trust include boating, swimming, recreation, and fishing.
4. Statutes Governing Landowner Liability
North Dakota's recreational use statute (N.D. Cent. Code §§ 53-08-1 to 06) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
North Dakota's tort claims act, which defines the scope of the government?s liability, is detailed in NDCC Ch. 32-12.1 (Chapter 303, S.L. 1977), applicable to political subdivisions of state.
5. Miscellaneous
1. Basic Description
Ohio allows the public to use streams capable of floating recreational boats (e.g. kayaking). Factors for determining whether the public has a right to use a stream (besides physical characteristics of the stream) include the stream?s history of public use for recreational boating and the existence of public access. There is some evidence that Ohio boaters may have the right to portage, although no definitive law on the subject exists.
2. State Test of Navigability
A watercourse in Ohio is navigable if it is capable of being used for recreational boating. A watercourse is a stream that usually flows in a particular direction in a definite channel having a bed, banks, or sides and discharges into some other stream or body of water. If reasonable improvements to a body of water would render the body navigable, the body of water might be navigable. Two other factors that a court may consider when determining the navigability of a stream, but are probably not dispositive to the outcome, are the existence of public access and the history of use by the public. The court is more likely to find that a stream with no public termini (points of access) is private. A long history of public use may also be a factor that supports a finding of navigability. Finally, a stream need not flow continuously.
3. Extent of Public Rights in Navigable Rivers
The public is free to use navigable streams for purposes of fishing and recreation. Mentor Harbor Yachting Club recognized the recent importance of streams as a recreational resource.
While the question of portaging has not been definitively ruled upon in Ohio, a good case can be made that boaters have a right of portage. Mentor Harbor Yachting Club dicta discussed whether a river is navigable when reasonable improvements have made it so, the court recited the following quote with implicit approval:
"Navigability in the sense of the law is not destroyed because the watercourse is interrupted by occasional natural obstructions and portages. There are but few freshwater rivers that did not originally present serious obstructions to uninterrupted navigation. The vital and essential point is whether the natural navigability of the river is such that it affords a channel for useful commerce. If this is so, the river is navigable in fact, although its navigation may be encompassed with difficulties by reasons of natural barriers, such as rapids and sandbars."
Thus, portaging can be a necessary incident to navigation, and may be permissible in navigable streams. The Attorney General reached a similar conclusion, by analyzing portaging as a right styled as a privilege that overcomes liability for trespass. Of course, boaters should avoid causing injuring to the private land while portaging.
4. Statutes Governing Landowner Liability
Ohio's recreational use statute (Ohio Rev. Code Ann. §§ 1533.18 & 1533.181) was passed in 1963. This law does not require of the landowner a duty to keep the property safe or to provide an assurance of safety. The law does not specify if the landowner has a duty to warn or if the landowner is protected from liability for willful or wanton misconduct. Also, it does not protect the landowner if a fee is charged for the use of the property.
Ohio's tort claims act, which defines the scope of the government?s liability, is detailed in the Court of Claims Act, RC Ch. 2743 (applicable only to the state and its agencies or instrumentalities) and the Political Subdivisions Act, RC Ch. 2744 (applicable to political subdivisions of the state).
5. Miscellaneous
1. Basic Description
Oklahoma is OK for boaters. Boaters may use any stream capable of floating them. Whether this right includes any use of the bottom, including wading and pushing-off with a paddle, or right of portage, however, is unclear.
2. State Test of Navigability
Servitude exists on non-navigable streams. The Oklahoma law that definite non-navigable streams are public waters in Oklahoma, even though the streambed may be privately owned, supports this. It is unclear what standards a non-navigable stream must meet in order to be subject to a public servitude. In determining that the Kiamichi was a public highway, the Oklahoma Supreme Court made note that the river was used by small boats and had been used in the past in commerce for floating logs. The stream was found to an "open" stream and navigable in fact, and therefore a public highway. This would indicate that all definite watercourses are probably not open to the public; they must be open streams that are navigable in fact. But, in the Attorney General?s stated opinion, Oklahoma law prohibits fencing across a definite stream. In any case, a boatable stream should be open and navigable in fact, and therefore a boatable stream would be a public highway regardless of which test is applied.
3. Extent of Public Rights in Navigable Rivers
There is not much Oklahoma law on this subject. The public has the right to fish from boats in non-navigable streams, but does not have the right to fix or fasten trotlines in a privately owned streambed. This leaves open many questions, including whether incidental contact with the bottom is allowed, whether portage is allowed, etc. One obstacle to favorable findings on these unanswered questions is the from boats language. The use of this language may imply that touching the bottom amounts to trespass. Alternatively, it may just be an effort by Curry to highlight the difference between fishing with a pole and fishing by anchoring a trotline. Incidental contact from fishing with a pole can be distinguished from anchoring trotlines, due to the ephemeral nature of the former. Additionally, it would be ludicrous to condone and encourage the use of non-navigable streams without allowing for incidental contact with the bottom. An Oklahoma court will have to decide this at some time in the future. Support for the view that incidents of navigation are permissible in non-navigable streams also can be drawn from Curry, where the court cited with approval Elder v. Delcour, a Missouri case which held that permissible uses included uses incident to travel on the river, such as floating, fishing and wading, for business and pleasure.
4. Statutes Governing Landowner Liability
Oklahoma's recreational use statute (Okla. Stat. Ann. Title 76 §§ 10 to 15) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Oklahoma's tort claims act, which defines the scope of the government?s liability, is detailed in the Oklahoma Political Subdivision Tort Claims Act, 51 Okla. Stat. Supp. § 151 et seq.
5. Miscellaneous
1. Basic Description
Oregon law is unclear regarding the public?s rights to use certain smaller non-navigable streams. These streams are public passageways, and the public can float these streams, but whether the public can touch the streambed or banks of these streams while floating has not been decided. The public does have a right to float, wade, fish, etc. in navigable streams.
2. State Test of Navigability
The law in Oregon regarding navigability and the rights of recreational stream users is not settled. A number of older cases seem to indicate the existence of a floatage easement in streams that can be floated. This is important for those streams that do not pass the federal navigability test. One old case defined streams subject to public use for a passageway as those streams "capable of being commonly and generally useful for floating boats, rafts, logs, for any useful purpose." It is not known whether capacity to float a kayak would satisfy this test.
The federal test of navigability may not impose much of a barrier in Oregon because evidence concerning a river?s use is often available due to Oregon?s relatively recent settlement and the large amount of commerce in timber products. Rivers that have been used to float cedar shingle bolts have been declared navigable. The Oregon State Land Board is authorized by statute to make determinations of navigability under the federal title test, and the State Land Board has adopted several regulations concerning navigability determinations.
In addition, streams influenced by the tide and streams that were meandered are navigable and public. The State Land Board has compiled a list of streams that are navigable because of federal court adjudication, State Land Board policy or rules, meandering characteristics, or tidal influences. However, the navigable status of many large streams in Oregon has not yet been decided.
3. Extent of Public Rights in Navigable Rivers
Oregon owns the beds of navigable rivers. The public has the right to boat, fish, swim, etc. in these rivers up to the ordinary high water mark. The ordinary high water mark is determined by "ascertaining where the presence and action of the water are so common and usual and so long continued in all ordinary years as to mark upon the soil of a bed a characteristic mark distinct from that of the banks in respect to vegetation and the nature of the soil itself."
A question still exists as to what rights the public has in streams subject to the floatage easement only. Obviously, the public has the right to float these streams, but that may be the extent of the right. It has not been decided whether the floatage easement includes other rights incidental to boating, such as wading, fishing, portage, etc. that involve the use of a privately owned stream bed or banks. However, one older case did allow the attachment of a log boom to a privately owned island because attachment was necessary to exercise the right of driving logs on the river and the impact was minimal. The river involved in this case, the Tualatin River, was not navigable, but there was a floatage easement upon the river.
4. Statutes Governing Landowner Liability
Oregon's recreational use statute (Or. Rev. Stat. §§ 105.655 to .680) was passed in 1971. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Oregon's tort claims act, which defines the scope of the government?s liability, is detailed in Or. Rev. Stat. §§ 30.260-30.300; 30.265(2) (state and subdivisions).
5. Miscellaneous
Apparently, the State Land Board does not have enough money to determine the navigability of many rivers. This leaves the ownership of the streambed in doubt up to the ordinary high water mark. In some instances the district attorneys have dismissed trespass cases that occur on rivers which have not been subject to a determination of navigability, although individuals have still been arrested.
Trespass in Oregon is defined as entering on premises that are not open to the public. Premises that are open to the public are premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances would cause a reasonable person to believe that no permission to enter or remain was required.
1. Basic Description
The public can boat, fish, and wade in larger streams with beds owned by the state. Pennsylvania has retained an outmoded test for determining that smaller streams with privately owned beds are navigable, and can therefore be used by the public. Smaller streams that were used for commercial transport of logs are likely subject to a public easement; however, the public may not have a right to fish in these streams.
2. State Test of Navigability
Streams are subject to a public easement if they are navigable in fact, regardless of the ownership of the bottom. Navigable in fact under the Pennsylvania test is essentially the same as the federal test of navigability, requiring a showing of commercial use of the stream. One old case held that a stream with a bed that is "private property, [is held subject to a public easement] if of sufficient capacity, at any stages of water, to be used for transportation of lumber or other goods." This case further defined navigation to include "ascending as well as descending navigation, by boats of considerable burden- or merely a descending navigation, by arks and rafts, at all seasons- or by arks and rafts in seasons of freshets." Use of a river for log driving is also evidence that will support a finding of navigability. Another issue in determining navigability is whether the stream is a local point of interest or is part of a trade route. Only the latter is navigable. Thus, the commercial value of the stream was and still is an important aspect of the test. The ability to float a canoe, however, is not sufficient evidence to establish that a stream is navigable.
The legislature has declared a numerous creeks to be public highways. Unfortunately, such a declaration does not stop a court from finding that the stream was non-navigable if the stream was not navigable in fact. A declaration by the legislature that a stream is navigable, when the stream is not navigable in fact, constitutes a taking that must be compensated. In addition, the U.S. Army Corps of Engineers has declared a number of other streams navigable.
3. Extent of Public Rights in Navigable Rivers
Where the state owns the streambed, the public has the right to boat, fish, wade and portage up to the ordinary high water mark. "There is no natural right of the citizen, except the personal rights of life and liberty, which is paramount to his right to navigate freely the navigable streams of the country he inhabits."
This touching language does not, however, go so far as to make the rights of the public to use navigable streams with privately owned beds equal to the right to use navigable streams with state owned bottoms. In navigable streams with privately owned beds, the public only has a right of passage, and the easement does not include the right to fish in such streams. Neither cases nor statutes address whether or not wading is permissible while navigating a stream.
4. Statutes Governing Landowner Liability
Pennsylvania's recreational use statute (Pa. Stat. Ann. Title 68 §§ 477- 1 to 8) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Pennsylvania's tort claims act, which defines the scope of the government?s liability, is detailed in 1 Pa. Consol. Stat. § 2310 (commonwealth), 42 Pa. Consol. Stat. § 8541 et seq. (local agencies), and Pa. Rules of Civ. Proc. 2101 et seq. (commonwealth and political subdivisions).
5. Miscellaneous
The Department of Conservation and Natural Resources has a regulation that defines State Recreation Area waters.
Trespass on land which is posted or fenced, or where other communication indicating that the property is private has been given, is a third degree misdemeanor.
1. Basic Description
A dearth of information regarding the laws as it applies to navigating in streams exists in Rhode Island. The best bet is that the Rhode Island courts would apply laws no less favorable to boaters than those in Massachusetts. In Massachusetts, a right of passage exists in rivers navigable in fact by some small boats. The right of passage includes the recreational use of the water.
2. State Test of Navigability
Rhode Island has little, if any, law on the subject of navigability of streams. Under the common law, a streambed can be privately owned, but the riparian owner has no property in the water itself. If Rhode Island courts were to interpret this language broadly Rhode Island might be inclined to adopt a test more lenient than the federal test. Rhode Island might be inclined to follow the test in neighboring Massachusetts. Under the Massachusetts test, rivers are navigable and subject to a public servitude or right of passage, even above tide waters, "provided they are navigable by ships or boats, or perhaps any other floating vehicle." Later cases in Massachusetts qualified this rule, and some evidence of past use for commerce is probably required. However, Rhode Island may be willing to go further in allowing the public to use streams than Massachusetts, as it does in allowing the public access to private beaches.
3. Extent of Public Rights in Navigable Rivers
Rhode Island statutory and common law has not defined the extent of the public?s right in non-navigable and navigable streams. The language in Tyler can be read to at least support the Massachusetts definition of the public?s right of passage. In Massachusetts, the public easement or right of passage includes use of the river by boats or other crafts "for purposes of pleasure and convenience." The easement exists whether or not the bottom is privately owned. The right to portage as an incident to navigation probably exists in Massachusetts.
4. Statutes Governing Landowner Liability
Rhode Island's recreational use statute (R.I. Gen. Laws §§ 32-6-1 to 7) was passed in 1978. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Rhode Island's tort claims act, which defines the scope of the government?s liability, is detailed in R.I. Gen. Laws § 9-31-1 et seq. (state and subdivisions).
5. Miscellaneous
1. Basic Description
South Carolina?s state test of navigability is equivalent to a recreational boating test. Thus, rivers that can be floated by kayaks at the ordinary stage of the water should be navigable, and open to the public for recreation, especially if the public has used them for such purposes in the past. South Carolina has not decided whether portaging is allowed.
2. State Test of Navigability
South Carolina courts have recognized a "tendency of modern judicial thought that water is navigable which is of such character as to be of general use by the public for pleasure boating." The state test for navigability makes navigable "all streams which have been rendered or can be rendered capable of being navigated by rafts of lumber or timber by the removal of accidental obstructions and all navigable watercourses and cuts." Furthermore, while a river need not be navigable at all times of the year, it must be floatable at the ordinary stage of the water. Navigable streams are deemed public highways subject to the public trust. This has been interpreted by the South Carolina Supreme Court to include streams that inherently have the capacity for "valuable floatage," irrespective of the fact of actual use and the extent of actual use. However, actual use, including public use for recreation, is evidence that a river is navigable. Navigable streams include streams that are only "navigable at periods of half to high tide." Thus, while the term "valuable floatage" is not crystal clear, it seems to include recreational boating. One case stated "It would be hard to imagine a more valuable floatage that a fishing boat on the Edisto River." If valuable floatage does include recreational boating, the state test for navigability is essentially a recreational boating test, and rivers floatable by boats are navigable.
3. Extent of Public Rights in Navigable Rivers
Navigable waters and the associated bottoms are held in trust for the public for purposes including fishing, bathing, recreation and enjoyment. The trust extends to the ordinary high water mark. South Carolina law has not ruled on the right of portage on navigable rivers, but there is some support for the position that such a right exists. First, portage is an incident to the use of navigable streams, and the laws strongly support use of navigable streams. Second, a statute makes it illegal to hunt or fish from privately owned banks on navigable rivers, but no mention is made with the effect of making portage illegal.
4. Statutes Governing Landowner Liability
South Carolina's recreational use statute (S.C. Code Ann. §§ 27-3-10 to 70) was passed in 1962. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
South Carolina's tort claims act, which defines the scope of the government?s liability, is detailed in the South Carolina Tort Claims Act, S.C. Code § 15-78-10 et seq. (state and local).
5. Miscellaneous
South Carolina?s constitution provides that "Navigable waters shall forever remain free public highways." Entry upon private property after notice is given prohibiting entry, including clearly posted signs and notice by pasturing animals, is a misdemeanor and punishable by a fine of not more than $100 or 30 days hard labor on the chain gang.
1. Basic Description
South Dakota has adopted a recreational boating test, so, if you can float it, it is navigable. You can also touch the streambed up to the ordinary high water mark. Portage is probably not allowed in South Dakota.
2. State Test of Navigability
South Dakota has a state test for navigability that has been extended from the common law test and includes waters that are not necessary in the ordinary sense. A body of water is navigable if it is of such character and extent that its waters constitute "public waters," which are defined as those waters that are naturally available "for public purposes taking into consideration the natural character and surroundings of a lake or stream." This test has also been stated in different terms to include waters capable of being used for public purposes such as boating, fishing, bathing, skating and purposes not yet anticipated. Thus, the state test is a recreational boating test.
3. Extent of Public Rights in Navigable Rivers
South Dakota has "declared that the people of the state have a paramount interest in the use of all the water of the state, and that the state shall determine what waters of the state, surface and underground, can be converted to public use or controlled for public protection." This appears to conflict with case law. One case held that "divisions of streams into navigable and non-navigable waters is equivalent to classification of public and private waters." Thus, case law has recognized public rights only in navigable waters, whereas the statute is arguably not so limited. The public has a right of access along navigable streams for hunting, fishing, boating, and other recreational purposes up to the ordinary high water mark. The ordinary high water mark is determined during periods of ordinary flow, not extreme floods or low water.
Use of the streambed in navigable waters where the bed is privately owned is probably permissible, as the cases indicate that activities such as bathing are permissible in navigable waters. The right to portage is questionable, and arguments can be made for either position, although those against a right to portage might be on slightly firmer ground. The fact that the case law has adopted such an expansive definition of public waters and contemplates all kinds of uses of the water is in favor of a right to portage. However, cases have recognized that the upland owner?s title is absolute above the ordinary high water mark and subject to the public trust below the ordinary high water mark. In addition, a statute makes navigable waterways public highways fifty feet landward of the water's edge, provided that the outer boundary of such public highway may not expand beyond the ordinary high water mark.
4. Statutes Governing Landowner Liability
South Dakota's recreational use statute (S.D. Comp. Laws Ann. §§ 20-9-12 to 18) was passed in 1966. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property, though non-monetary gifts of up to one hundred dollars are allowed.
South Dakota's tort claims act, which defines the scope of the government?s liability, is detailed in S.D. Codified Laws § 3-21-1 et seq. (state).
5. Miscellaneous
Entry onto the posted or enclosed lands of another is a class 2 misdemeanor, which can becomes a class 1 misdemeanor if an individual defies an owner who personally communicates an order to leave.
1. Basic Description
Tennessee has adopted a recreational boating test where the public has the right to boat streams in Tennessee that can be floated. Some smaller streams, however, have been found to be non-navigable and, therefore, not floatable. The public?s right to use streams that can be floated probably includes the right to portage around manmade obstacles, but may or may not include the right to portage around natural obstacles.
2. State Test of Navigability
Tennessee has adopted a test of navigability more favorable than the federal tests. The test makes navigable those streams that are navigable in the "ordinary sense." This is in addition to those streams that are navigable in the "legal sense" under the federal test. Under Tennessee?s state navigability test, a stream is navigable if, in certain stages of water, it is of sufficient depth, naturally, for valuable floatage, as for rafts, flatboats, and perhaps even smaller vessels. Furthermore, "if in its natural state and with ordinary volume of water either constantly or at regularly recurring seasons it has such capacity that it is valuable to the public it is sufficient." This does not include rivers only capable of use during floods, but does include rivers regularly or predictably swollen by rains. Also, floating must be accomplished without the aid of a person on the banks, and must be profitable. Some older case have held that the fact that a stream has a capacity for transportation valuable to the public, in the form of transportation of saw logs, does not make it navigable, even in the ordinary sense. To the contrary, some cases have held that floating timber products would suffice. Since modern boats can float more places than logs, it is unclear how these old cases will apply today. Therefore, while Tennessee has adopted what is essentially a recreational boating test, under which a river is navigable if it can be floated, some smaller streams may or may not be excluded under the state test depending on how a court applies the older cases.
3. Extent of Public Rights in Navigable Rivers
All navigable waters are highways, including those declared navigable by special law. In rivers navigable under the state test, the public has an easement and a right to the free and uninterrupted use and enjoyment of the stream for all the purposes of transportation and navigation to which it is naturally adapted. This easement or "servitude of public interest" under the state test is as absolute and unlimited as the servitude under the federal test. Since public use of streams navigable under the federal test includes navigation, hunting, and fishing rights, and everything of value incident to a right of public soil, the public should be able to engage in these activities in rivers navigable only under the state test.
No case has addressed the portage question directly, and arguments for and against a right of portage exist. The fact that easement or servitude of public interest is functionally equivalent to the servitude under the federal test supports the notion of a right of portage. It also illustrates the strong public right in Tennessee to use navigable waters. Therefore, the easement should include those activities incident to navigation. The right to portage manmade obstructions is probably stronger, as one case stated it was permissible to build a dam across a river as long as a convenient and suitable passageway is furnished for the public. However, a court could take the view that if a river is not useable without having to portage, the river is non-navigable and no servitude exists.
In addition, streams designated as class III scenic rivers can be used by the public for recreational purposes.
4. Statutes Governing Landowner Liability
Tennessee's recreational use statute (Tenn. Code Ann. §§ 70-7-101 to 104 & 11-10-101 to 104) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Tennessee's tort claims act, which defines the scope of the government?s liability, is detailed in the Tennessee State Board of Claims Act, Tenn. Code Ann. § 9-8-101 et seq. (administrative claims procedure against state) and the Tennessee Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq. (applicable only to units of local government and not to the state).
5. Miscellaneous
The Tennessee Department of Environment and Conservation (TDEC) and the Tennessee Wildlife Resources Agency (TWRA) manage natural resources. The TDEC is responsible for acquiring and administering scenic rivers.
Trespass is a class C misdemeanor that is committed where a person receives notice against entering by posting, fencing, or personal communication by the owner. Trespass requires the intrusion of the entire body.
The following streams have been deemed navigable under the federal title test: Cumberland River, and the French Broad River and Holston or Tennessee River at and above their junction. Streams that have been deemed navigable under the state test include Big Creek, Powell?s River, and Hiwassee River. Hind?s Creek has been deemed non-navigable under the state test.
1. Basic Description
Texas defines navigable streams as those that average greater than 30 feet from the mouth up. The public has the right to use these streams and the streambed, for any lawful purpose including boating. The use of the stream is confined to below an imaginary line in the streambed, midway between the ordinary low water mark and the top of the cut bank. A right of portage around at least natural obstructions does not exist.
2. State Test of Navigability
Navigable waters in Texas include streams that are navigable by statute and streams that are navigable in fact. The owner of the streambed controls the use of the surface, and the state owns the streambeds of both types of navigable waters. Streams that are navigable in fact are defined as those waters useful to the public in their natural state for a considerable portion of the year. A body of water is useful to the public if it is used for pleasure boating, hunting, or fishing. Streams navigable by statute are public streams, and the state has title to the streambeds. The statute defines navigable streams as those that retain an average width of thirty feet from the mouth up. Whether a stream that fails the statutory definition can still be found to be navigable under the navigable in fact test is doubtful, but strong evidence of public use and capability of use might suffice. The beds of streams that fail the navigable in fact test but pass the statutory test are owned by the state and are therefore public waters.
3. Extent of Public Rights in Navigable Rivers
The public has a right of free passage in navigable streams, including the right to pleasure boat and fish. Since the beds of navigable rivers are owned by the state, wading is permissible. The use of the stream extends to a line formed by a "gradient of the flowing water in the river. It is located midway between the lower level of the flowing water that just reaches the cut bank, and the higher level of the water that just does not overcut the top bank." Above this line, the public has no right of passage without the consent of the riparian owner. The civil law of the Partidas, which does allow use of the banks, was held to not apply to navigable streams. Thus, the right of portage, at least around natural obstructions, is doubtful.
Additionally, in Texas the water of every flowing stream is the property of the state. This law has been used to allow fishing over privately owned land in a reservoir on a navigable stream, but it may not apply to non-navigable waters.
A boater does not commit criminal trespass when anchoring, tying-off to a private dock, or beaching his boat, as long as the boater does not step on the shore.
4. Statutes Governing Landowner Liability
Texas's recreational use statute (Civ. Prac. & Rem. Code §§ 75.001 to .003) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct. The law does protect the landowner if a fee is charged for the use of the property, though the revenue from charges may not exceed two times the property taxes.
Texas's tort claims act, which defines the scope of the government?s liability, is detailed in Tex. Rev. Civ. Stat. Ann. Art. 6252-19.
5. Miscellaneous
Trespass is a class B misdemeanor, that is committed by entering upon land after communication by the owner or entry upon land that is cultivated, fenced, posted with signs, or painted with purple marks on trees.
1. Basic Description
In Utah, the public owns the water and has the right to use any surface water for which legal access exists. The public has the right to use the surface water for recreation, including boating. At present Utah law is silent on whether the streambed can be used or touched by boaters.
2. State Test of Navigability
Utah law has not adopted a state test of navigability. As in every other test, the streambeds of navigable waters under the federal title test are held in trust for the public by the state. However, all waters of the state are the property of the public, including water in streams that does not pass either of the federal tests. The public?s right to use the water is subject only to the existing rights of appropriators to the beneficial use of the water. This provides the public with rights to recreate on streams that do not pass the federal test.
3. Extent of Public Rights in Navigable Rivers
The state regulates the water as trustee for the benefit of the people. This is exemplified in state policy, which recognizes a public interest in the use of the state waters for recreational purposes by requiring that recreational uses be considered by the State Engineer before he approves an application for appropriation or permits the relocation of a stream.
A corollary to the rule that all waters of the state are the property of the public is the rule that where there is public access to a body of water, there is a public easement over the water regardless of who owns the water. The public easement includes the right to use the water to float leisure craft, hunt, fish, etc. But the public easement is not well defined, and Utah Supreme Court has expressly left open the question of whether the easement includes use of the streambed. Thus, although the Utah Supreme Court seemed to be following Wyoming?s generous rule of permitting incidental contact, Utah law remains unclear as to whether a boater, floating a stream whose beds are privately owned, is trespassing if his paddle strikes a rock in the stream.
Perhaps Utah will be inclined to follow the rule in neighboring Wyoming, another appropriation state, but the answer cannot be predicted with any accuracy. One strong argument in favor of allowing incidental use of privately owned streambeds is that the public owns the water and therefore has a stronger right than that provided by a navigational servitude. Not allowing incidental use of the streambed would render the public?s ownership of water less valuable.
The right of portage in non-navigable rivers is an open question in Utah as well.
4. Statutes Governing Landowner Liability
Utah's recreational use statute (Utah Code Ann. §§ 57-14-1 to 7) was passed in 1971. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
Utah's tort claims act, which defines the scope of the government?s liability, is detailed in the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to 63-30-34.
5. Miscellaneous
Entry upon property that is posted, fenced, or after personal communication that the property is private is a trespass infraction.
1. Basic Description
Vermont allows the public to use rivers that are capable of supporting valuable commerce, including those rivers capable of floating logs. The public can use the river for boating and fishing. The right to portage is undecided in Vermont.
2. State Test of Navigability
The public can use "boatable" waters in Vermont. Boatable waters are defined as those bodies of water navigable in fact that are "of common passage as highways" for transportation and commerce. This definition does not include every stream that is floatable. Capacity for commerce is sufficient to make a river navigable in fact "no matter what mode the commerce may be carried on," but the commerce must relate to trade or agriculture. Thus, streams having the capacity to float logs are boatable. Furthermore, a stream need not pass the test at all times of the year; "if its periods of high water ordinarily continues for a sufficient length of time to make it useful as a highway, it is subject to the public easement."
3. Extent of Public Rights in Navigable Rivers
The public easement on boatable rivers includes the use of the stream for pleasure, as well as business. So boating and fishing are permissible on boatable streams. The right of portage has not been discussed in Vermont case law, and may exist as an activity incident to navigation on a boatable stream. Vermont does allow incident uses of private land that adjoins boatable streams, such as allowing the owner of logs to enter the private land with due care in order to retrieve the logs, where the logs have been stranded on private land after floating down a boatable stream.
4. Statutes Governing Landowner Liability
Vermont's recreational use statute (Vt. Stat. Ann Tit. 10 § 5212) was passed in 1967. This law does not specify if the landowner has a duty to keep the property safe, a duty to warn, to provide an assurance of safety, or if the law protects the landowner from liability for willful or wanton misconduct. It does not protect the landowner if a fee is charged for the use of the property.
Vermont's tort claims act, which defines the scope of the government?s liability, is detailed in the Vermont State Tort Claims Act, Vt. Stat. Ann. tit. 12 § 5601 et seq. (state).
5. Miscellaneous
Trespass on private land that is fenced or posted with warnings or where the owner has communicated to the trespasser is an offense punishable by up to three months in prison and $500.
1. Basic Description
Virginia law is unkind to recreational boating. The public has no rights in non-navigable streams. Virginia allows the public to navigate (i.e., boat) on navigable streams that are or were used in commercial trade, but seems to apply this test rather strictly. The federal navigation servitude, which allows boating, might allow boating on more rivers in Virginia. Virginia is also an exceptional state in that beds of navigable rivers, even those rivers subject to the federal navigation servitude, can be privately owned, and where privately owned, boaters have fewer rights. There is no evidence that boaters have the right to portage, although portaging is arguably an incident to navigation, and therefore allowed in navigable rivers. Virginia has designated some streams for use by the public.
2. State Test of Navigability
Virginia courts have used, rather strictly, the "navigable in fact" test to determine whether a river is navigable. A river is navigable in fact if it is used or susceptible of being used in its natural condition as a highway for commerce on which trade or travel are or may be conducted in the ordinary modes of travel on water. This is very similar to the federal commerce test of navigability. A river was found to be non-navigable, where attempts had been made in the past to float commercial logs down the river but abandoned because the method proved unsatisfactory. A federal court has applied the federal commerce test of navigability and found that a river was navigable in fact, which the Boerner court, using a test similar to the federal test, had deemed non-navigable. The inconsistent results may be explainable by the additional evidence considered by the federal court. Thus the state of the law in Virginia is in a state of uncertainty, and federal court seems to provide the more favorable results when applying tests of navigability.
3. Extent of Public Rights in Navigable Rivers
The public has no rights in non-navigable streams. In navigable streams, the public has at least the right of navigation, which includes the right to use the surface. Where the beds of the streams are privately owned, the public does not have the right to touch the banks or the bottom, and may not even have the right to fish in such portions of a river. This is a problem, because the British Crown granted the beds of navigable rivers to private individuals on some occasions, and these grants have been upheld.
However, in streams subject to the federal navigational servitude, fishing would seem to be permissible as an incident to the federal navigational servitude, even if the bottoms were privately owned. Federal law would defeat state law. The other rights incident to the federal navigation servitude would also apply. Therefore, the fact that Virginia limits rights in navigable streams where the bottoms are privately owned creates confusion, because Virginia?s test of navigability seems more stringent, or at least no less stringent than the federal test, and the federal navigation servitude will probably exist in all navigable rivers in Virginia. While the scope of the federal navigation servitude is unclear at present, federal law may be friendlier in determining boaters? rights in Virginia.
While no mention of portaging is made in the cases, portaging is an incident to navigation. A stronger case for portaging probably exists where the federal navigational servitude exists.
4. Statutes Governing Landowner Liability
Virginia's recreational use statute (Va. Code Ann. § 29.1-509) was passed in 1950. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees merely to maintain the land.
Virginia's tort claims act, which defines the scope of the government?s liability, is detailed in the Virginia Tort Claims Act, Va. Code of Va. §§ 8.01-195.1 et seq. (state) and 8.01-222 (notice of claim to cities and towns).
5. Miscellaneous
The Virginia Scenic Rivers Act was enacted to "preserve and protect [the] natural beauty" of some of Virginia?s waterways and to assure their use and enjoyment for scenic and recreational purposes. A list of streams recognized under this act is available from the Virginia Commission of Game and Inland Fisheries.
1. Basic Description
In Washington, the public has a right to use streams that are capable of floating a "bolt of shingles" during high flows. While a bolt of shingles is not large, this test does eliminate some smaller streams capable of being floated in a kayak. Washington does not recognize a right to portage across private land.
2. State Test of Navigability
Washington, at least superficially, uses the federal test of navigability to determine all navigable waters within the state because the state owns the beds of all navigable rivers. Navigable waters include only such waters capable of navigation for general commercial purposes. Commercial purposes includes floating shingle bolts down the river, but does not include "every small creek in which a fishing skiff or gunning canoe can be made to float at high water." Griffith held that a stream that had only been used for transportation by small boats for pleasure was non-navigable. Since shingle bolts are smaller than saw logs, the required capacity of the water under Washington?s test is somewhere between the log test and the recreational boating test.
However, Washington has interpreted this test fairly liberally in other ways. The quality of navigability of a watercourse need not be continuous, but the seasons of navigability must occur regularly and be of sufficient duration to serve a useful purpose for commercial intercourse. Under this test, streams in their natural state capable of floating shingle bolts after heavy rains and during the spring freshets are navigable streams. The term "natural state" precludes streams that can only be made floatable by artificial means. Natural obstructions or portages do not destroy navigability. Historical evidence of use of a stream for commercial transport purposes is persuasive evidence that the stream is navigable. In addition, navigability is not destroyed by disuse.
3. Extent of Public Rights in Navigable Rivers
The public has the right to fish and boat in navigable streams up to the high water mark, and presumably also has the right to wade because the state owns the bottom. The public has no rights in non-navigable streams, and the owner of a non-navigable stream can fence the stream.
In Washington, the existence of a right of portage is doubtful. The Monroe Mill Co. court overruled a lower court?s finding that log drivers could go upon privately owned banks of navigable streams to free logjams. The court held that the log driver "must confine himself and his operations to the highway itself - the bed of the stream - until the landowner consents to the use of the banks . . . . The driver must know from the beginning that he must in no event go upon the banks of the stream in his operations without the owner?s permission, and thus controversies about damages accruing in that way will be avoided."
4. Statutes Governing Landowner Liability
Washington's recreational use statute (Wash. Rev. Code Ann. §§ 4-24.200 & .210) was passed in 1967. In general, this law grants landowners some immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. This law does not specify whether the landowner is required to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. The law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless it is a charge for cutting firewood.
Washington's tort claims act, which defines the scope of the government?s liability, is detailed in Wash. Rev. Code Ann. § 4.92.090 (state and subdivisions).
5. Miscellaneous
Criminal trespass on private property occurs when a person trespasses and the land is posted or notice is given in some other manner.
1. Basic Description
If a stream is floatable by commercial logs, the public can float and recreate in the stream. The public can use the stream up to the ordinary high water mark. The streams that the public can use include 34,000 miles of streams which have beds claimed by the state.
2. State Test of Navigability
Navigable rivers in West Virginia include three types of streams: stream navigable in fact under the federal title test, floatable streams, and streams are influenced by the tide. The navigable in fact test is the federal title test, and the state owns the beds of streams in this category. Of more interest to boaters is whether a stream is floatable, and subject to a public easement. The state courts of West Virginia have found that streams are floatable if they are capable of valuable use in their natural state for bearing logs or the products of mines, forests, and tillage of the country they traverse to mills or markets. The ability to float a canoe might make a stream navigable, because fur trappers used canoes to bring pelts to market. But because the test of whether a river is floatable is similar to the federal navigation test, some confusion remains as to which streambeds the state owns.
3. Extent of Public Rights in Navigable Rivers
The public has the right to recreate in navigable and floatable streams. The state does not own the bed of floatable streams, and the right to float is derived from a public easement of navigation in these streams. How the rights differ between navigable streams and floatable streams is unclear. The use of floatable streams by the public must be reasonable with respect to the riparian owners, but courts have not examined the reasonableness of recreational use. The public most likely has some right to portage obstruction in streams that are navigable in fact. West Virginia has asserted a right to exercise control over the banks of navigable streams, although this control might only extend to the ordinary high water mark. It is not clear whether floatable streams can be considered navigable for purposes of portaging.
4. Statutes Governing Landowner Liability
West Virginia's recreational use statute (W. Va. Code §§ 19-25-1 to 5) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.
West Virginia's tort claims act, which defines the scope of the government?s liability, is detailed in the West Virginia Court of Claims Act, W. Va. Code § 14-2-1 et seq. (state) and Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1 et seq. (political subdivisions).
5. Miscellaneous
The Public Land Corporation owns the publicly owned streambeds of navigable streams. Approximately 34,000 miles of streams are navigable or floatable, and have publicly owned beds. More information regarding which rivers are navigable may be available from the Division of Natural Resources.
Criminal trespass on private land that is cultivated, fenced or posted against trespass or where the owner has communicated to the trespasser is a misdemeanor carrying a fine up to $100, unless the person defies an order to leave, in which case the fine is $100-$500 along with up to six months imprisonment. A landowner is actually authorized to arrest a trespassing fisherman in West Virginia.
1. Basic Description
In Wisconsin, a river is navigable and the public can use it if it can be floated during part of the year. The public has the right to use navigable streams recreational purposes below the ordinary high water mark. The right to portage over private property is not clear at this time.
2. State Test of Navigability
The navigability of many streams in Wisconsin has been determined. A river is navigable under the state test if it can float recreational watercraft. A lower court has interpreted this test to be satisfied where "a stream is capable of floating any boat, skiff or canoe of the shallowest draft used for recreational purposes." A stream is navigable to the ordinary high water mark, which is defined as the "point on a bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark, either by erosion, destruction of terrestrial vegetation or other easily recognized characteristics." A stream can be navigable and subject to public use despite the fact that it is only navigable during periods of high water that recur from year to year, and cannot float rowboats or logs during periods of normal flow. Furthermore, the fact that obstructions impede navigation will not defeat a finding of navigability. Courts have declared streams navigable even though a thirteen-foot canoe with a three to four inch draft required portaging fifteen times around natural obstructions. Finally, the fact that a river is not regularly used for recreational purposes or navigation is not dispositive of navigability; capacity is the determinative factor.
An artificial channel connected to a natural and navigable body of water is public because it cannot exist on its own.
3. Extent of Public Rights in Navigable Rivers
Riparian rights are subject to the public?s paramount right and interest in navigable waters. The rights of the public in navigable waters are held in trust by the state. The rights of the public include recreational enjoyment of the waters, which encompasses fishing and boating. These activities are described as incidents to the right to navigate. Wading and touching the bottom is almost certainly permissible as an incident to navigation and recreational use of the water.
The right of portaging was discussed in dicta in Willow River Club. The court stated that the right to "drive lumber down a public navigable stream would seem to include the right to do the things essential to facilitate the drive so long as the drivers kept within the limits of the stream." However, a strong argument for a right of portage in Wisconsin can be made. First, navigable streams include streams that are obstructed and require portaging (see above). The public could not exercise its rights in these streams if it were not allowed to portage. Secondly, portaging is incident to navigation, and other rights such as fishing and recreational boating are permissible because they are incidental to navigation (see above). More support is provided by the Muench case. Muench struck down a county law as contrary to the public trust because it compelled the county board to grant a permit dam or other obstruction, whether or not navigation by the public would be impeded. Permits can only be issued where the public?s rights are not materially impeded. Wisconsin now has a statute providing penalties for obstructing a navigable watercourse. In fact, lack of a right to portage can be seen as a material impediment to navigation.
4. Statutes Governing Landowner Liability
Wisconsin's recreational use statute (Wis. Stat. Ann. § 895.52) was passed in 1963. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does protect the landowner if a fee is charged for the use of the property as long as it doesn't exceed $2000 annually.
Wisconsin's tort claims act, which defines the scope of the government?s liability, is detailed in Wis. Stat. Ann. § 893.80.
5. Miscellaneous
Trespass on posted land or where the actor has notice is a class B forfeiture.
1. Basic Description
Wyoming allows the public to boat any non-navigable streams that can be floated by any craft, even for pleasure, including a kayak. The right to float the stream is accompanied by a right to portage around and over obstructions, including riffles, rapids, and dams. A limited right to access useable waters over private property may exist in Wyoming.
2. State Test of Navigability
Wyoming common law has adopted a test for public use of streams that is independent of the test of navigability. The test of navigability is the federal commerce test, where rivers that are susceptible or were used for commerce are navigable. But this is of limited consequence to boaters. In the seminal case Day v. Armstrong, the court stated that "the actual usability of the waters is alone the limit of the public?s right to so employ them." Actual usability includes use by small craft for pleasure. A stream is not unusable even if it has areas that must be portaged over or around, such as rapids or riffles. To sum, the test of usability, as opposed to the test for navigability, determines whether boating is permissible. Thus, the stream can legally be used if it can be boated.
3. Extent of Public Rights in Navigable Rivers
The water of all streams within Wyoming is property of the state, including non-navigable waters. As discussed above, the right to use the water of non-navigable streams exists wherever the water is capable of use for purposes that include boating and fishing. Landowners may not interfere with this right and therefore cannot fence boatable streams.
A right of portage exists in Wyoming. The right to use the water does not include the right to walk or wade in the stream. However, contact with the bottom incident to the use of the water is permissible. Furthermore, persons in craft may, when necessary, disembark and walk, or wade upon submerged lands in order to pull, push, or carry craft across shallows, riffles, rapids, or obstructions.
The Day court even discussed in dicta the right to gain access to streams over private land. Because the water is property of the state, the state should have a right of "ingress and egress across lands adjacent to a stream where no other access is available, as well as a restrainable right of nuisance use of adjacent lands."
4. Statutes Governing Landowner Liability
Wyoming's recreational use statute (Wyo. Stat. Ann. § 34-19-101) was passed in 1965. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.
5. Miscellaneous
Trespass upon posted property is misdemeanor with penalties of up to $750 and six months in jail.
allodial - from allodium - an estate held indefinitely or for potentially indefinite duration
appropriated - to be set apart for or assign to a particular purpose or use
boatable - capable of being floated by recreational craft
dispositive - from disposition - a final settlement or determination
floatage - the act of floating; often refers to transport of commercial goods
impoundment - obstruction, e.g. dam
Laws of the Partidas - the prior existing Spanish laws that the New Mexico Constitution is based on
riparian - relating to the bank of a natural watercourse
riverine - relating to a river
silviculture - a branch of forestry dealing with the development and care of forests
subaqueos - underwater
trotline - a comparatively short setline used near shore or along streams;
setline - a long heavy fishing line to which several hooks are attached in series
usufructuary - from usufruct - a right to use and enjoy another's property without damaging or diminishing the property
watercourse - natural or manmade channel through which water flows