Kentucky Navigability Report
The public has the right to use navigable waters for recreational purposes such as boating, fishing or swimming. The test for navigability in Kentucky is “navigable in fact.” The courts look to see whether, in the legal or technical sense, water has a useful capacity and can be used as a public highway for transportation. The law in Kentucky does not consider streams to be navigable if they are only sufficient to allow pleasure boaters, hunters or fisherman to “float their skiffs or canoes.”1) Therefore, when determining navigability, the case law appears to err on the side of larger streams and not smaller streams or creeks that would not allow true commerce or transportation through the water.
State Test of Navigability
Kentucky, through its case law, has adopted a state test of navigability that makes streams navigable if they are navigable in the legal or technical sense and not the ordinary sense.2) The criteria for navigability of a river is whether it is “generally and commonly useful for some purpose of trade or commerce of a substantial and permanent character, for, if this were not so, then there is scarcely a creek or stream in the entire country which is not navigable water of the United States.”3) This essentially means that ”[I]f 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.”4) However, the “use of a stream by a boat a few times in many years for a picnic or excursion cannot be deemed a navigation.”5) The courts in Kentucky also expressly reject the recreational boating test, so the fact that a skiff, small raft or canoe are able to float a stream is not sufficient to constitute navigability.6) The courts have even gone so far as to state that streams that have pools of water formed in which a ferry could pass does not constitute a navigable stream throughout its length, but only in that particular area.7)
The following stream has been held by the court to be navigable: Rockcastle River.8) The following streams have been held by the court to be non-navigable: Chestnut Creek9) 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; and Straight Creek10) a ten-foot wide and four-foot deep creek because timber could not be floated without the aid of splash dams.
Extent of Public Rights in Navigable and Non-Navigable Rivers
A non-navigable stream is the private property of the owners of the adjoining lands and cannot be taken for public use without just compensation.11) The riparian owners of land on a stream that is navigable are owners to the center of the stream or river up to the high-water mark.12) However, the public can use navigable streams for recreational purposes, including the stream bottoms,13) despite the fact that streambeds of navigable rivers are owned by the adjacent riparian landowner.14) Ownership rights of riparian landowners is subordinate to the public's right to use navigable waters.15) The public right of navigation also includes the right of temporary anchorage.16)
There are no specific cases that address the existence of a right to portage in Kentucky. However, the courts do provide for the right of “incidental use of the riverbed.”17) One could argue that the right to portage is akin to the right of incidental use of the riverbed, but the facts of the cases in Kentucky that address incidental use suggest otherwise. The courts addressing incidental use focus on the use of the riverbeds to help with the floating of logs down a stream that may get caught up or run up onto a riverbed.18) These courts have held that a person can go up on the banks of a stream when it is necessary in driving logs down a stream.19) Therefore, while incidental use is allowed, the courts only apply it to the facts of driving a log down a stream. Under these facts, one would conclude that Kentucky law does not provide for the right to portage.
The law in Kentucky forbids obstruction of navigable streams with a dam or other structure.20) The only exception to this provision is that it does not apply to “damns constructed in streams for the purpose of generating, by water power, electricity for distribution and sale.”21)
Trespass in Kentucky is a Class B misdemeanor punishable by a fine up to $250 for someone who enters private land that is fenced or posted stating no trespass or where an owner has communicated it to a trespasser.22)
For more information on Kentucky's natural resources, please refer to [http://www.dep.ky.gov/]. For information on boating, fishing, hunting and parks in Kentucky, please refer to [http://www.kdfwr.state.ky.us/].