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American Whitewater

New Hampshire Navigability Report

Summary

In New Hampshire, the public has the right to boat, fish and engage in other reasonable activities in navigable waters.1) The public's right to use navigable waters in New Hampshire appears to be fairly broad. In fact, courts have held that the public's right to use such waters is not merely “limited to navigation and fishery, but includes all useful and lawful purposes.” Very few courts have addressed the issue of navigability, and accordingly, there is little guidance with respect to the breadth and scope of such “useful and lawful purposes.” Courts have suggested, however, that what is reasonable may depend on the capacity of the particular stream.2)

State Test of Navigability

Although New Hampshire has utilized a test for navigability based on size of the waterway, it nonetheless appears to favor the test based on “useful service to the public.”3) In other words, “when a river or stream is capable in its natural state of some useful service to the public because of its existence as such, it is public.”4) Such “useful service” has been held to include the public's recreational uses.5)

The New Hampshire Supreme Court has held that “navigable water” is “all such waters as are actually navigable, whether fresh or salt,”6) and New Hampshire courts do not appear to impose a commercial use requirement. Moreover, the State's Supreme Court has emphasized that, “the flow of a navigable stream is in no sense private property; that the running water in a great navigable stream is capable of private ownership is inconceivable.”

New Hampshire's test for navigability is a factual one, and is applied on a case-by-case basis.7) The U.S. Circuit Court of Appeals held under New Hampshire law that history of public use is the most compelling evidence in evaluating whether a stream is in fact navigable. As the court stated, ”[p]ublic user [sic] is the most convincing evidence of the navigability of water - the most unfailing test to apply.”8) This should not be construed to mean that actual use is always required, as courts have repeatedly stated that a stream may be navigable if it is “capable” in its natural condition to permit public use.9)

New Hampshire's test for navigability is derived primarily from New Hampshire case law and American and English common law.10)

In New Hampshire, regardless of the public's right to use navigable waterways, the private owner's rights to her tract of adjacent land “remains intact.”11) In short, although “the public trust in tidewaters in [New Hampshire] extends landward to the high water mark,” private shorefront owners are entitled to exercise their property rights in the tidelands “so long as they do not unreasonably interfere with the rights of the public.”12)

In a relatively recent opinion of the New Hampshire Supreme Court regarding the public use of coastal beaches, the Court observed that the private rights of adjacent land owners include the right to “use and occupy the waters adjacent to their shore for a variety of recreational purposes, the right to erect boat houses and to wharf out into the water.”13)

In 1941, the Supreme Court of New Hampshire affirmed the trial court's ruling that “it is not questioned that the [Connecticut River] all the way from its source is a public water way.”14)

In 1908, the U.S. Court of Appeals for the First Circuit observed that “there can be no doubt, we think, that Massabesic Pond and all the large bodies of fresh water in New Hampshire are navigable.”15)

The New Hampshire Department of Fish & Game has prepared a online list of “public access sites” for fishing and boating. The list also includes various site-specific regulations, and can be accessed at: http://www.wildlife.state.nh.us/Outdoor_Recreation/access_sites_table.htm.

Extent of Public Rights in Navigable and Non-Navigable Rivers

The public, through the state, owns the land up to the high water mark, or the “water's edge.”16) The “land covered by public water is capable of many uses” and “rights of navigation and fishery are not the whole estate” but rather such waters are held for the use and benefit of the public for all useful and lawful purposes.17) As stated above, navigable waters may be used by the public to boat, bathe, fish, fowl, and skate.18)

The public further has a “right of way in a floatable or navigable fresh river or small pond in the form of “an easement in the submerged land of the riparian proprietors.”19)

Case law makes no mention of the right to portage. Based on the existing case law, however, it may be reasonable to take the position, that, so long as the activity occurs in the land between the low and high water marks, portage is a “useful and lawful purpose” falling within the public trust right.

Notwithstanding the public's right to use navigable waters for all useful and lawful purposes, owners of land adjacent to such waters have title to the natural high-water mark, and may have a cause of action for trespass if the public's use exceeds this boundary.20)

Miscellaneous

There is a general prohibition against the obstruction of free navigation in navigable waters.21) Furthermore, as noted above, streambed landowners are required to exercise their property rights in a manner that does not unreasonably interfere with the public's right to use navigable waters.22) As the New Hampshire Supreme Court noted, such property owners are “always subject to the paramount right of the State to control them reasonably in the interests of navigation, fishing and other public purposes.”23)

The New Hampshire Department of Safety, Marine Patrol has issued a Safe Boating Program handbook which lists certain restrictions (presumably for safety concerns), which include a prohibition on anchoring boats overnight on “any inland surface waters of the State of New Hampshire.” An online copy of this handbook can be accessed at: http://www.boat-ed.com/nh/handbook/index.htm.

The Marine Patrol's website also contains valuable information regarding restrictions and regulations on boating and other related activities. For example, the website notes that it is illegal to obstruct navigation in the following manners:

  • Anchor a vessel in the traveled portion of a river or channel that will prevent or interfere with any other vessel passing through the same area.
  • Moor or attach a vessel to a buoy (except mooring buoys), beacon, light, or any other navigational aid placed on public waters by proper authorities. Also, it is illegal to move, displace, tamper with, damage, or destroy any navigational aid.
  • Obstruct a pier, wharf, boat ramp or access to any facility.
  • Place an obstruction in the water that is dangerous to others' navigation.
  • Cut loose any vessel that is moored or at anchor without the permission of the owner.
  • Anchor overnight on any inland body of water.

The website also indicates that, due to homeland security restrictions, boaters should “not approach within 100 yards, and slow to minimum speed within 500 yards of any U.S. Naval vessel.” This and other information can be accessed at: http://www.boat-ed.com/nh/handbook/obstruct.htm#Homeland.

1) St. Regis Paper Co. v. New Hampshire Water Resources Board, 26 A.2d 832, 92 N.H. 164 (1942).
2) Connecticut River Lumber Co. v. Olcott Falls Co., 21 A. 1090, 65 N.H. 290 (1889) (finding that the Connecticut River is a navigable waterway capable of floating logs).
3) St. Regis, 26 A.2d at 838, 92 N.H. at 170.
4) , 7) Id.
5) See Hartford v. Gilmanton, 146 A.2d 851, 853, 101 N.H. 424, 425-26, (1958) (public waters may be used to boat, bathe, fish, fowl, skate, and cut ice).
6) Concord Manufacturing Co. v. Robertson, 25 A. 718, 728, 66 N.H. 1, 21 (1889
8) Percy Summer Club v. Astle, 163 F. 1, 8 (1st Cir. 1908).
9) See, e.g., Connecticut River, 21 A. at 1090, 65 N.H. at 377 (internal citations omitted).
10) See, e.g., Concord, 25 A. at 720, 66 N.H. at 11.
11) St. Regis, 26 A.2d at 838, 92 N.H. at 172.
12) , 16) Concord, 25 A. at 727, 66 N.H. at 20.
13) Opinion of the Justices, 649 A.2d 604, 609, 139 N.H. 82, 90 (1994) (citing Sundell v. Town of New London, 409 A.2d 1315, 1318, 119 N.H. 839, 844 (1979).
14) St. Regis, 26 A.2d at 840, 91 N.H. at 173.
15) Percy Summer Club, 163 F. 1 at 19.
17) Id. at 721, 66 N.h. at 7-8.
18) Gilmanton, 146 A.2d at 853, 101 N.H. at 425-26.
19) Concord, 25 A. at 720, 66 N.H. at 20
20) Whitcher v. State, 87 N.H. 405, 409 (1935) Adams v. Pease, 2 Conn. 481, 1818 WL 20, at *2 (Conn. 1818).
21) See State v. Hutchins, 79 N.H. 132, 135 (1919).
22) Concord, 25 A. at 77, 66 N.H. at 20.
23) Sundell, 409 A.2d at 1318, 119 N.H. at 844.