Oklahoma Navigability Report
Oklahoma is OK for boaters. Boaters may use any stream capable of floating them. Whether this right includes any use of the bottom, including wading and pushing-off with a paddle, or right of portage, however, is unclear.
State Test of Navigability
Servitude exists on non-navigable streams.1) The Oklahoma law states that definite non-navigable streams are public waters in Oklahoma, even though the streambed may be privately owned, supports this.2) It is unclear what standards a non-navigable stream must meet in order to be subject to a public servitude. In determining that the Kiamichi was a public highway, the Oklahoma Supreme Court made note that the river was used by the public for fishing, recreation and pleasure, as it is known as one of the best fishing streams in the state. Looking at all of the facts and circumstances, the Court also noted that the river was used by small boats, it was about 150-200 feet wide at the point in question, and had been used in the past in commerce for floating logs.3) Upon examination of all of the facts and circumstances, the stream was found to be an “open” stream and navigable in fact, and therefore a public highway.4) This would indicate that all definite watercourses are probably not open to the public. Instead, it must be determined that it is an open stream that is navigable in fact. But, in the Attorney General's stated opinion, Oklahoma law prohibits fencing across a definite stream.5) In any case, a boatable stream should be open and navigable in fact, and therefore a boatable stream would be a public highway regardless of which test is applied.
Extent of Public Rights in Navigable and Non-Navigable Rivers
As a general rule, the ownership of the river bed of a non-navigable river belongs to the owners of the shores on two sides, divided by an imaginary line drawn through the middle of the river.6) An owner of land through which a non-navigable river flows is the owner of the river bed. The ownership right, however, is subject to the rights of the public to use the river as a public highway and the owner does not have exclusive fishing rights in the river.7) Furthermore, a landowner cannot assert ownership in water forming a definite stream.8) The landowner's rights in the stream are purely riparian. Riparian owners, however, may act to prevent physical trespass upon their property by fishermen and boaters seeking access to the public waters.9)
The public has the right to fish from boats in non-navigable streams, but does not have the right to fix or fasten trotlines in a privately owned streambed.10) This leaves open many questions, including whether incidental contact with the bottom is allowed, whether portage is allowed, etc. One obstacle to favorable findings on these unanswered questions is the “from boats” language. The use of this language may imply that touching the bottom amounts to trespass. Alternatively, it may just be an effort by Curry to highlight the difference between fishing with a pole and fishing by anchoring a trotline. Incidental contact from fishing with a pole can be distinguished from anchoring trotlines, due to the ephemeral nature of the former. Additionally, it would not be reasonable to condone and encourage the use of non-navigable streams without allowing for incidental contact with the bottom. An Oklahoma court will have to decide this at some time in the future. Support for the view that incidents of navigation are permissible in non-navigable streams also can be drawn from Curry, where the court cited with approval Elder v. Delcour, a Missouri case which held that permissible uses included uses incident to travel on the river, such as floating, fishing and wading, for business and pleasure.11)
Since definite streams are public waters, an individual is not subject to fine and punishment for fishing upon the same without the consent of the riparian owner. However, those utilizing private property to gain access to public streams without the consent of the landowner are subject to fine and punishment upon the filing of a proper complaint.12)