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American Whitewater

Vermont Navigability Report

Summary

In Vermont, the public has the right to boat and fish in navigable waters.1) Although public use of such waters was originally limited to purposes of commerce and passage, Vermont has recognized that the public's right extends to recreational uses as well.2) Accordingly, Vermont's navigable waters are subject to public use for the purposes of commerce, boating, fishing and other reasonable and normal recreational uses, subject to regulation by the Vermont Natural Resources Board.

State Test of Navigability

Vermont's test for navigability was derived from the standpoint of use of the waterway for commerce. Accordingly, in Vermont, “if a waterway is capable in its natural state of being used for purposes of commerce, carried on in any mode, it is navigable in fact, and therefore . . . [under] law, a public river or highway.”3) The public has a right of passage over such waters.

The test for navigability is factual by nature and the state cannot declare that a waterway is navigable-at-law when it is not in fact so.4) The waterway “may be subject to periodical fluctuations in the volume and heights of the water, attributable to natural causes and recurring with the seasons . . . [as long as] its periods of high water ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement.”5) The public easement at common law did not initially address recreational use, as it focused on use that was “beneficial to trade or agriculture.”6) As further discussed below, the right to hunt and fish in such waters (subject to certain restrictions) was added by the Vermont legislature.

As stated above, Vermont's test for navigability is a factual one, and is applied on a case-by-case basis. In a given case, whether such waters are “inherently capable of use as a common passage for the public is a question of fact” and the party asserting that they are has the burden of proving it, “unless the court can take judicial notice that they are as perhaps [the court] can in some cases.”7) Vermont courts have observed that, as a general rule, “waters above the tide are prima facie, private in use” and the party asserting that they are not has the burden of proving it.8)

Vermont courts have not imposed actual use requirements; on the contrary, they seem to endorse other jurisdictions' position that “it is not necessary to the [public's] right that the stream should have been used as a highway; it is enough if it is capable of such use.”9)

Vermont's test for navigability is derived from a multitude of sources, including Massachusetts and Maine common law,10) current Vermont case law and the Vermont constitution.11)

In Vermont, owners of land adjacent to waterways have private rights to the discernible low water mark.12) “The bed or soil underlying [public waters] is held by the people in their character as sovereign in trust for public uses for which they are adapted.”13) The state “is required to preserve such waters for the common and public use of all.”14)

Accordingly, a property owner's riparian rights in adjacent streambeds are not absolute, but subject to the reasonable regulation by the state in its exercise of the public trust doctrine for the benefit of the public's use.

The Supreme Court of Vermont observed that Marlboro South Pond “does not appear” to be navigable” in 1895.15)

In 1986, the Supreme Court of Vermont held that portions of the Charcoal Creek close to Lake Champlain were navigable.16)

Lake Champlain was held to be “public, navigable waters” by the Vermont Supreme Court in 1967.17).

Vermont's Natural Resources Board has issued a more extensive list of public waterways which can be found at: http://www.nrb.state.vt.us/wrp/publications/surfacelevelrules.pdf.

Additionally, the Vermont state legislature has defined ”'navigable water' or 'navigable waters' [to] mean Lake Champlain, Lake Memphremagog, the Connecticut River, all natural inland lakes within Vermont and all streams, ponds, flowages and other waters within the territorial limits of Vermont, including the Vermont portion of boundary waters, which are boatable under the laws of this state.” A copy of this state statute can be found at: http://www.leg.state.vt.us/statutes/fullchapter.cfm?Title=10&Chapter=049.

Extent of Public Rights in Navigable and Non-Navigable Rivers

As a general principle, the public's use rights of Vermont's public waterways appear to be fairly broad. In fact, the Vermont legislature has empowered the Water Resources Panel of the Vermont Natural Resources Board to evaluate uses for which a particular public body of water is adaptable on a case-by-case basis. The Panel has specifically identified “fishing, swimming, boating, waterskiing, fish and wildlife habitat, wildlife observation, the enjoyment of aesthetic values, quiet solitude of the water body, and other water-based activities” as “normal recreational uses” to be considered.

In contrast, the public's easements on non-navigable waters are relatively narrowly circumscribed by Vermont's courts. In rejecting defendants' argument that Vermont's common law should be interpreted to accommodate a general public easement for “water-related recreational activities,” the Vermont Supreme Court specifically deferred to the state's constitution, which only mentions the right to “hunt and fish in all boatable waters.”

Vermont case law makes no mention of the right to portage. However, given the apparently broadly interpreted public use right in navigable waters, it may be reasonable to extrapolate that portage incidental to “normal, recreational uses” would be permitted. On the other hand, consistent with the State's narrow interpretation of the public's easement on non-navigable waters, portage overland on property adjacent to non-navigable waters may likely constitute trespass.

Despite the existence of a public easement for navigation in non-navigable waters, streamside landowners have the exclusive ownership right up to the low water line.18) As the Vermont Supreme Court noted, if the owners of the land underlying such non-tidal waters takes efforts to “enclose” his/her lands (e.g., by posting signs), a person found hunting, shooting or trapping on such waters may be guilty of poaching and criminal trespass.19)

Miscellaneous

Although there appears to be a general prohibition against the obstruction of free navigation in navigable and non-navigable waters, as the Cabot court held, private landowners may restrict activities that go beyond mere navigation on non-tidal waters overlying their lands.20)

The Vermont Natural Resources Board provides important additional information regarding the use of the state's navigable waters, including the information provided at:

http://www.nrb.state.vt.us/wrp/publications/upw2006.pdf.

1) New England Trout and Salmon Club v. Mather, 35 A. 323, 326, 68 Vt. 338, 347 (1895).
2) Id., citing Attorney General v. Woods, 108 Mass. 436 (1871)
3) Boutwell v. Champlain Realty Co., 94 A. 108, 111, 89 Vt. 80, 87 (1915).
4) Id., 94 A. at 112, 89 Vt. at 89.
5) Mather, 35 A. at 326, 68 Vt. at 347 (citing Woods, 108 Mass. 436).
6) Id., 35 A. at 326.
7) Mather, 35 A. at 326, 68 Vt. at 347-48.
8) , 10) , 14) , 20) Id.
9) Id., 35 A. at 326, 68 Vt. at 347 (internal citations omitted).
11) Cabot v. Thomas, 514 A.2d 1034, 1037, 147 Vt. 207, 212 (1986).
12) State of Vermont v. Central Vermont Railway, 571 A.2d 1128, 1131, 153 Vt. 337, 343 (1989
13) Id.
15) Smart, 68 A. 527.
16) Cabot, 514 A.2d 1034, 1037, 147 Vt. 207, 212 (1986).
17) State of Vermont v. Cain, 236 A.2d 501, 506, 126 Vt. 463, 470 (1967) (citing McBurney v. Young, 32 A. 492, 67 Vt. 574 (1895
18) Cabot, 514 A.2d at 1036, 147 Vt. at 209.
19) Cabot, 514 A.2d at 1039, 147 Vt. at 214.