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American Whitewater

New Jersey Navigability Report

Summary

Waters in which the tide ebbs and flows are public to the extent that the sea flows and reflows. Accordingly, the public can use such waters for boating, fishing, swimming, and all other legal activities. On the other hand, waters with no ebb and flow of the tide are private waters and generally may not be used by the public without the consent of the owners. Non-tidal waters that are navigable-in-fact may be used by the public only for navigation, but not for other purposes such as fishing.

State Test of Navigability

New Jersey uses the common law ebb and flow doctrine to determine whether waters and the lands beneath them are public or private.1) Accordingly, waters in which the tide ebbs and flows and the lands beneath them, “so far only as the sea flows and reflows,” are deemed public regardless of the navigability of the water.2) Such tidal waters and lands are subject to a public trust, which encompasses not only navigation but also fishing, swimming, and other lawful uses by the public.3) The principles of the common law ebb and flow doctrine are so well settled in New Jersey that at least one court deemed a citation of authorities on the subject unnecessary.4) Case law appears to suggest that the public has a right to cross privately owned land in order to gain reasonable access to tidal waters.5)

Non-tidal waters with no ebb and flow of the tide and the lands beneath them are deemed private.6) The public may use non-tidal waters only for purposes of navigation if the waters are navigable-in-fact.7) The public may not use non-tidal waters for other purposes, such as fishing, without the owners' consent.8) Cases do not appear to specify the extent to which the public may use navigable, non-tidal waters for navigation, i.e., whether the allowed public use is limited to commercial shipping or extends to recreational navigation such as boating. Also, at least one case suggests that most tidal rivers in New Jersey are also navigable, and the navigable rivers are generally tidal with the exception of the Delaware River above Trenton.9)

Extent of Public Rights in Navigable and Non-Navigable Rivers

The public has the right to use tidal waters that pass the ebb and flow test and lands beneath them for any lawful purpose, including boating, fishing, and swimming.10) These rights stem from the public trust doctrine and are subject to regulation by the Legislature, which has the absolute power over such tidal waters and lands.11) Thus, arguments can be made that the rights of the public to use the tidal waters can be limited or regulated only by acts of assembly.

The public does not have any right to use non-navigable, non-tidal waters absent consent by the owners.12) With respect to navigable non-tidal waters, the public may use them only for the purpose of navigation.13) However, the public may not use them for other purposes such as fishing.14)

Miscellaneous

Anyone who trespasses on private land for the purpose of fishing where the land is posted with notices forbidding the trespass or after having been forbidden so to trespass are liable to a civil penalty of $100.00 to $200.00 for the first offense.15) Each subsequent offense is subject to $200.00 to $500.00 in fine and suspension of all licenses and privileges for five years.

1) Cobb v. Davenport, 1867 WL 4194, *7 (N.J.Sup. 1867).
2) , 6) , 9) , 14) Id.
3) Id.; see also Matthews v. Bay Head Imp. Ass’n, 95 N.J. 306, 312 (1984).
4) , 12) Cobb, 1867 WL 4194 at *7.
5) See Matthews, 95 N.J. at 323-324 (stating that the public has a right to cross privately owned dry sand beaches in order to gain reasonable access to the foreshore).
7) Schultz v. Wilson, 44 N.J.Super. 591, 600 (1957); Cobb 1867 WL 4194 at *7.
8) , 13) Schultz, 44 N.J.Super. at 600.
10) Matthews, 95 N.J. at 312; Cobb, 1867 WL 4194 at *7.
11) Matthews, 95 N.J. at 312; Schultz, 44 N.J.Super. at 596; Cobb, 1867 WL 4194 at *7.
15) N.J.S.A. 23:7-1 (1997).