**American Whitewater**

**Alabama Navigability Report**

__**Summary**__



There is no simple test of navigability and public access of streams in Alabama.  The test of navigability is a subjective decision based on many factors.(( 	Blackman v. Mauldin, 51 So. 23, 25 (Ala. 1909); Rhodes v. Otis, 33 Ala. 578, 1879 WL 615, at *11 (Ala. 1859).))  Public waters include all "natural bodies of water such as rivers, creeks, brooks, lakes, bayous, bays, channels, canals or lagoons or [waters that] are dug, dredged or blasted canals and 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."(( 	Ala. Code § 9-11-80 (1996).)) Also included in public waters are "[a]ny water impounded by the construction of any lock or dam or any other impounding device placed across the channel of a navigable stream … ."(( 	Id.))  The 11th Circuit found that the Alabama code from which the description of public waters comes applies only to navigable waters.(( 	United States v. Harrell, 926 F.2d 1036, 1044 (11th Cir. 1991).))  Although the public has no right of access to private waters, the definition of trespassing found in the Code of Alabama gives license and privileges to those entering unimproved land unless notice is given by a person or conspicuous posting.



__**State Test of Navigability**__



The test of navigability in Alabama is subjective and involves consideration of the following:



    *Whether the stream is fitted 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 the stream for transportation;
    *Whether the periods of the stream's capacity for floatage are sufficiently long to make it susceptible of use beneficial to the public;
    *Whether the stream has been previously used by people generally, and how long it has been so used;
    *Whether the stream was meandered by government surveyors, or included in the surveys; and
    *Whether, if declared public, the stream will probably in the future be of public use for carriage.(( 	Blackman, 51 So. at 25; Rhodes, 1879 WL 615, at *11.))


The burden of proof is upon the party claiming that a stream above tide water is public.(( 	Blackman, 51 So. at 25; Rhodes, 1879 WL 615, at *11.))  "[N]o one of these considerations, nor any number of them less than the whole, has been given controlling influence."(( 	Blackman, 51 So. at 25; Rhodes, 1879 WL 615, at *11.))  



The test for navigability is based on case law.(( 	Rhodes, 1879 WL 615, at *11; see, also, Webb v. City of Demopolis, 13 So. 289 (Ala. 1892).))  "The state owns the bed and bottom of navigable streams in Alabama, but not those which are nonnavigable."(( 	Hood v. Murphy, 165 So. 219, 220 (Ala. 1936). ))  The basis of private ownership of streambeds is that the streambeds constitute "a part of the public land ceded by the United States April 24, 1802, Code 1923, p. 24, surveyed and patented by the government as such, by which the title passed to the patentees and their successors in ownership, and is conveyed by the description of the land through which the streams run, and thereby the public have no right of fishery in the waters as they go through such land."(( 	Id.))



In //Bullock v. Wilson//,(( 	2 Port. 436 (Ala. 1835).)) the Supreme Court of Alabama determined that the Coosa River was navigable at the point of a mill that was the subject of the suit.  In that era, steamboats plied the Coosa as far upstream as Rome, Georgia, where the river begins.(( 	Riverboats on the Coosa River, available at http://members.tripod.com/~Write4801/areas/coosa-1.html.))  However, there is now a series of seven dams on the Coosa that make the river almost unrecognizable from that of the mid 18th century.(( 	Coosa Hydrologic Modifications, available at http://www.riversofalabama.org/Coosa/COO_Hydrologic_Modifications.htm.))



__**Extent of Public Rights in Navigable and Non-Navigable Rivers**__



The State has ownership for the purpose of regulating their conservation and disposition of all fish found in public waters.(( 	Alabama Code § 9-11-81.))  State residents under 16 years old or over 64 years old are required to buy a fishing license before fishing in public water.(( 	Alabama Code § 9-11-53(a).  State residents fishing doing “cane pole fishing” in their county of residence or within one mile of their country of residence are not required to have a fishing license.  Id.))  A separate license is required for nonresidents over 16 years old, who have the option of buying an annual or 7 day license.(( 	Alabama Code § 9-11-55 & 56.))  



The public has no right of access to non-navigable waters in Alabama.(( 	United States v. Harrell, 926 F.2d 1036, 1044 (11th Cir. 1991).))  However, Alabama law provides that a person may enter unimproved and apparently unused land that is not enclosed in a manner to exclude intruders "unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner."(( 	Alabama Code § 13A-7-1.))



Owners of private water have an absolute ownership right to any fish contained in the water and it is a misdemeanor to take, catch, or kill (or attempt to do so by any method) fish from private waters without permission.(( 	City of Birmingham v. Lake, 10 So.2d 24, 27 (Ala. 1942); Alabama Code § 9-11-91.))  Landowners are authorized to make citizens' arrests of trespassing fishermen if the offense is committed in the presence of the landowner.(( 	Alabama Code § 15-10-7(a)(1).))  A landowner may also request help from a game warden in making an arrest.(( 	Alabama Code § 9-11-5.))



__**Miscellaneous**__



An owner of private water capable of floating logs who builds an obstruction on the water must provide a chute or sluiceway able to carry any logs that can be floated down to the obstruction from the stream above.(( 	Blackman, 51 So. 27.))  "Any person who dams up or otherwise obstructs a navigable watercourse must, on conviction, be fined not less than $100.00 nor more than $1,000.00."(( 	Alabama Code § 33-7-3.))  "Any person who by means of traps or other obstructions other than dams prevents the passage of fish up the waters of any river or creek must, on conviction, be fined not more than $100.00, but it shall not be unlawful to erect or maintain a dam on a nonnavigable stream for the impounding of private waters for the production of fish for food or recreation or for the furtherance of any lawful business without providing or maintaining means for the passage of fish up such stream."(( 	Alabama Code § 9-11-92.))



The U.S. Army Corps of Engineers (Mobile District) provides a wealth of information on some of Alabama's man-made lakes at:  [[http://www.sam.usace.army.mil/op/locations.htm|http://www.sam.usace.army.mil/op/locations.htm]].  Man-made lakes created by impounding navigable waters are public.(( 	Ala. Code § 9-11-80.))  However, man-made lakes created by impounding non-navigable waters are private, and riparian owners' rights are limited to those waters over their land or to those lands to which they hold easements.(( 	Wehby v. Turpin, 710 So.2d 1243 (Ala. 1998); see, also http://www.olemiss.edu/orgs/SGLC/MS-AL/19.1/riparian.htm))