Tennessee Navigability Report
Navigable waters are considered public highways under common law. There is no clear test of navigability and public access to streams in Tennessee, but generally streams that are floatable are navigable. Floatable streams are those that can be used to transport valuables to the public, like the ability to float logs down a stream. Streams do not have to be floatable at all times of the year and can be seasonal so long as they are floatable regularly and not only during a flood.
State Test of Navigability
Tennessee, through its case law, has adopted a state test of navigability that makes streams navigable that are navigable in the “legal sense” and “ordinary sense.”1) Under Tennessee law, navigable rivers or streams are rivers which are in fact “capable of being navigated.”2) If a river or stream in Tennessee is navigable in the legal or technical sense, the use of the water belongs to the public.3) To be legally navigable, water must be capable of navigation “ascending and descending, by sea vessels; that is, such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels.”4) A stream that is not navigable in the legal or technical sense may still be navigable in the ordinary sense if the water is of “sufficient capacity in depth, width and volume” for valuable floatage.5) This does not include streams that are only capable of floatage during a flood, but may include streams that are routinely “swollen” because of rains.6) Tennessee has not adopted the common law definition of navigability by the ebb and flow of the tide, but instead looks to see if water in its ordinary state is suitable or capable of navigation.7)
The following streams have been held by the courts to be navigable in the technical or legal sense: Cumberland River;8) the French Broad River and Holston or Tennessee River at and above their junction;9) and Reelfoot Lake.10) The following streams have been deemed navigable in the ordinary sense: Big Creek;11) Powell's River;12) and Hiwassee River.13) Court's have held that Hind's Creek is not navigable in any sense,14) and Holston River above the county bridge at Bluff City in Sullivan County was declared to be unnavigable by Acts 1899, ch. 18.15)
Extent of Public Rights in Navigable and Non-Navigable Rivers
Navigable streams cannot be owned privately. Navigable streams natural and primary uses by the public are for navigation, commerce, hunting and fishing.16) In addition to the right of navigation of streams, the public has the right of ownership of lands under the waters, as these lands cannot be owned privately.17) The riparian owners of land on a stream that is navigable in the technical sense have title to the ordinary low watermark only, and not to the center of the stream. If a stream is only navigable in the ordinary sense, “the ownership of the bed of the stream is in the riparian proprietors, and the public have an easement therein for purposes of transportation and commercial intercourse.”18) If a stream is so “shallow as to be unfit for transportation and commerce,” and is not navigable in even the ordinary sense, the rights to the property and use of the stream are “wholly and absolutely in the owners of the adjoining land.”19)
All navigable streams are considered public highways under common law, which forbids the obstruction to the detriment of navigation20)21) Tennessee Code Annotated § 69-1-117 states that without a permit issued by the Tennessee Department of Environment and Conservation (“TDEC”) no person shall “authorize, undertake, or engage in any activity, practice, or project that has or is likely to have the effect of impairing or obstructing the navigability of any river, lake, stream or watercourse located within the state.”22) There are no cases that address the question of portage.
Trespass is a class C misdemeanor in Tennessee that is committed when a person receives notice against entering by a posting, fence, or personal communication by the owner.23) Trespass is punishable by a fine up to $50 and 30 days in jail. Trespass requires the intrusion of the entire body.24)
The TDEC and the Tennessee Wildlife Resources Agency (“TWRA”) manage natural resources and have substantial information on boating, fishing, hunting and parks and recreational activities. Further information can be found on their websites at [http://www.state.tn.us/environment/] and [http://www.state.tn.us/twra/].