**American Whitewater**

**Missouri Navigability Report**

__**Summary**__

In Missouri, a navigable stream generally is defined as one which can be floated without undue difficulty in the lawful pursuit of commerce or recreation.  The public right to navigation extends to recreational boating.  Acceptable recreational activities include not only boating but also fishing and swimming.  

__**State Test of Navigability**__

Missouri, through its case law, has adopted a state test of navigability that makes streams navigable that are "navigable in fact," very similar to the federal commerce test.((Tomkins v. Monarch Bldg. Materials Corp., 347 S.W.2d 152 (1961).))  The "navigable in fact" test looks to see whether or not streams are navigable in their "ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water."((See id. at 156))  The court, however, distinguishes between a stream "navigable in fact by canoes, row boats and other small craft", but "not navigable by larger boats and vessels, does not make it a navigable stream."((See id.))  

In Missouri there are no statutes that directly define riparian water rights, but many courts have adjudicated this issue and a riparian land owner is entitled to the right of access and the right of use of the surface of the waterway.((Myers v. City of St. Louis, 8 Mo. App. 266 (1880).))  Additionally, the right to use the surface of a stream or waterway is not restricted to the surface water adjacent to the riparian's land.((Greisinger v. Klinhart, 321 Mo. 186, 9 S.W.2d 978 (1928).))  Instead, a riparian has the right to use the surface of the entire watercourse.((See id.))  This right, however, is subject to the public's dominant right of navigation.((See id.))  

Generally, Missouri law states that a riparian owner has a right of "reasonable use" of the water flowing in its natural condition, "without diminution or obstruction," but has no ownership in the water itself.((See Missouri State Water Plan Series Volume VII, A Summary of Missouri Water Laws, compiled by Richard Gaffney and Charles Hays, with contributions by William J. Bryan IV, J.D., and Amy E. Randles, J.D. (2000), citing Tyler v. Wilkinson, 4 Mason 397, 24 F. Case 472 (1827).))   For example, a riparian owner does not have a right to the rocks or fish in the stream.  Always keep in mind that Missouri navigable waters are "public highways" and therefore the public has a right to navigate along these waters and to reasonable use.((Elder v. Delcour, 364 Mo. 835, 269 S.W. 2d 17 (1954).))  

The public trust doctrine applies in Missouri, so the state holds certain lands and waters for the public's reasonable use.  These public rights can interfere with and overcome private riparian rights.((See Missouri State Water Plan Series Volume VII, A Summary of Missouri Water Laws, compiled by Richard Gaffney and Charles Hays, with contributions by William J. Bryan IV, J.D., and Amy E. Randles, J.D. (2000).))  For example, even though a riparian can construct a dock in an adjacent river or stream, the dock must not interfere with the public right of navigation.((State ex. rel. Citizens Electric Lighting and Power Company v. Longfellow, 169 Mo. 109, 69 S.W. 374 (1902).)) 

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

The court held that a riparian owner may not obstruct or encroach along the water so as to impede the public's right of navigation and travel.((See id.))  Courts have not addressed the issue of portage.

A person commits trespass in the first degree if he or she "knowingly enter[s] unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property."((Mo. Rev. Stat. §569.140.1 (2006).))  In order to commit the crime of trespass upon real property, the property must be "fenced or otherwise enclosed in a manner designed to exclude intruders" or as to which notice is given by "actual communication to the actor" or posting "reasonably likely to come to the attention of intruders."((See id.))  Missouri law also provides for no civil liability for adjoining landowners of streams or rivers.((Mo. Rev. Stat. §258.200 (2006). Any person owning land adjoining navigable or nonnavigable free-flowing stream or river shall be immune from civil liability for injuries to persons or property of persons trespassing or entering on such person’s land without implied or expressed permission, invitation, or consent…” Id.))

__**Miscellaneous**__

For more information on water rights in Missouri, please refer to the Missouri Department of Natural Resources, Water Resource Center found at [[http://www.dnr.mo.gov/|www.dnr.mo.gov]].