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. Miscellane