Federal Title Test & Navigability Report©


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:[1]

1. 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.

2. A river that is navigable in fact is navigable in law.

3. 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.[2]

[1] The Daniel Ball, 77 U.S. 557 (1870).

[2] United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940).

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