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American Whitewater

Ohio Navigability Report


Ohio is kind to recreational boaters. Ohio allows the public to use streams capable of floating recreational boats (e.g., kayaking and canoeing). Factors for determining whether the public has a right to use a stream (besides physical characteristics of the stream) include the stream's history of public use for recreational boating and the existence of public access. There is some evidence that Ohio boaters may have the right to portage, although no definitive law on the subject exists.

State Test of Navigability

Navigation for pleasure and recreation is regarded as just as important as navigation for a commercial purpose by the Ohio courts.1) A watercourse in Ohio is navigable if it is capable of being used for recreational boating.2) If it is a naturally navigable watercourse, it is public. A watercourse is a stream that usually flows in a particular direction in a definite channel having a bed, banks, or sides and discharges into some other stream or body of water.3) If reasonable improvements to a body of water would render the body navigable, the body of water might be navigable.4) Navigability may exist despite the obstruction of falls, rapids, sand bars carries or shifting currents.5) Two other factors that a court may consider when determining the navigability of a stream, but are probably not dispositive to the outcome, are the existence of public access and the history of use by the public.6) The court is more likely to find that a stream with no public termini (points of access) is private.7) A long history of public use may also be a factor that supports a finding of navigability.8) Finally, a stream need not flow continuously to be considered navigable.9)

Extent of Public Rights in Navigable and Non-Navigable Rivers

The public is free to use navigable streams for purposes of fishing and recreation. Mentor Harbor Yachting Club recognized the recent importance of streams as a recreational resource.

While the question of portaging has not been definitively ruled upon in Ohio, a good case can be made that boaters have a right of portage. The Court, in Mentor Harbor Yaching Club dicta, discussed whether a river is navigable when reasonable improvements have made it so; the Court recited the following quote with implicit approval:

Navigability in the sense of the law is not destroyed because the watercourse is interrupted by occasional natural obstructions and portages. There are but few freshwater rivers that did not originally present serious obstructions to uninterrupted navigation. The vital and essential point is whether the natural navigability of the river is such that it affords a channel for useful commerce. If this is so, the river is navigable in fact, although its navigation may be encompassed with difficulties by reasons of natural barriers, such as rapids and sandbars.10)

Thus, portaging can be a necessary incident to navigation, and may be permissible in navigable streams. The Attorney General reached a similar conclusion, by analyzing portaging as a right styled as a privilege that overcomes liability for trespass.11) Of course, boaters should avoid causing injuring to the private land while portaging.12)

1) Mentor Harbor Yachting Club v. Mentor Lagoons, Inc., 163 N.E.2d 373, 377 (Ohio 1959). This case was followed in a later Ohio appellate court decision, and has not been ruled on since. State ex rel. Brown v. Newport Concrete Co., 336 N.E.2d 453 (1975).
2) Id. See also Coleman V. Schaeffer 163 Ohio St. 202, 126 N.E.2d 444 (1955) which expanded the test of navigability to include a stream’s availability for boating and recreation, as well as the use of the stream for pecuniary profit.
3) , 7) , 8) , 12) Id.
4) Id. at 377.
5) Id. United States v. Appalachian Electric Power Co., 311 U.S. 377, 409, 61 S.Ct. 291, 85 L.Ed. 243.
6) State v. Pierce, 164 Ohio St. 482, 132 N.E.2d 102.
9) East Bay Sporting Club v. Miller, 118 Ohio St. 360, 161 N.E. 12.
10) Id., citing 56 Am. Juris., 649, § 182.
11) 1980 Ohio Op. Att’y Gen. 80-093 (December 23, 1980). The attorney general cites the Restatement (Second) of Torts § 195 (1965) and Fulton v. Monahan, 4 Ohio 427 (1831) in support of the conclusion that portaging is permissible to avoid dangerous conditions.