When are waterways private or public?

I wote my thesis on this subject ,
… as a graduate fellow at the Harvard Law School in 1975, subsequently published and still cited by courts and commentators.



The general rule has been stated: The public owns the bed of any “navigable” water. Tidal water is presumed to be navigable up to what is called the “mean high tide” line. What “navigable” means for fresh water bodies can, within limits, vary from state to state, and the only way to be positive one way or the other on specific body of fresh water is a definitive court decision.



A little more complexly: The English king is said (erroneously, per my historical research) to have held navigable waters in trust for the public. When America became sovereign, the king’s ownership of the beds of navigable waters in America devolved on the federal government. The Supreme Court of the United States developed three “tests” of “navigability” in the 19th century: a test for bed ownership, a test for federal regulation (by the Army Corps of Engineers, for example), and a third test for the jurisdictional reach of federal admiralty courts. These three tests are similar but not identical. Hence a water body theoretically can be navigable for one federal purpose (such as regulation) but not for another (such as bed ownership).



When each state became sovereign, the beds of the federally navigable water bodies – determined as of the date of statehood – devolved on the state to be held in trust for public navigation. Therefore, theoretically, any water body navigable under the federal bed ownership test at the time a state entered the union should still be navigable in every state (unless substantially altered by erosion, reliction, avulsion or permanent drying up).



However, each state can have a navigability test that is more liberal or encompassing than the federal bed test. That is, the states are free to have rules that would render a water body navigable even if it would not be navigable under the federal bed test. Some states have, for example, adopted navigability tests such as log flotation or recreational boating. Again, for any given water body, a certain answer can only be obtained by court litigation.



Since there probably will not be a court decision for marginally navigable water bodies – just using your common sense – all the practical cautions noted above should be taken: be careful, polite, don’t start fights about it with a land owner, don’t camp or even walk on the bank unless necessary to portage around rapids or an obstruction.

The bottom line is…
you can read all the legal mumbo jumbo you want, but the question varies state by state, and is entirely dependent upon how each state views it. There is supposedly a federal navigability law, but no state in the Union pays any attention to it except in the cases of a few large, commercially navigable rivers like the Mississippi. If it has barge traffic on it, it’s navigable and the public owns the riverbed up to the high water mark. If it’s any smaller than that, in MOST states, the private landowner owns everything but the water, including the riverbed beneath the water. If the landowner only owns one side, he owns the riverbed to the center of the channel. If he owns land on both sides he owns the entire river bottom.



That’s how, in various states, you can float it, but if you touch the bottom or even throw out an anchor you’re trespassing. There are a number of Western states where this is so, and while some landowners don’t care, many are true PIAs and seem to just sit and watch for some floater to hit a rock or brush a willow limb, and then they jump all over them.



And when it comes to marginally floatable streams, things get REALLY sticky.



The only states where I KNOW what the law is are the two states where I have residences, Missouri and Montana, and actually both states are pretty liberal in their interpretations of the public’s right to float and fish rivers. Montana has a river access law that basically states that if you can legally access it, at a bridge crossing or a public access, you can wade it or float it and go anywhere you wish, no matter who owns the land. Even Montana has that gray area on when a stream is too small to be considered “public”, but you can legally wade and fish some pretty small creeks, streams that are far too small to float.



In Missouri, there is no hard and fast “law”, it’s all based upon court cases. Basically, the Missouri Supreme Court ruled that even though the landowner owns everything but the water, the public has an easement to float, fish, camp, picnic, and swim anywhere below the alluvial banks (this includes gravel bars, but not the bottomland fields off the river). The court based this upon several rather obscure factors, including whether the stream had ever been used to transport logs to market, but the court case that decided it was on a pretty small stream, one that is only floatable during spring or high water periods, so theoretically it should cover most marginally floatable streams. Problem was that it was decided ONLY for that one section of stream, so further court cases were necessary to decide for other smaller streams. The larger float streams were fine, but there have been cases that went both ways on some of the smaller streams. And as a practical matter, if you’re on a smaller stream, it pretty much depends upon the outlook and beliefs of the sheriff and county prosecutor in the county where you happen to be floating. Some counties are more friendly to floaters, others are more friendly to influential landowners. But basically, if people float it regularly it’s okay to float, if it’s small enough that not many people float it, you’re in that gray area.

I paddle in a lot of states
and I have found a pretty good way to find if a waterway is considered “public access”.

I contact the area agricultural extension agent and find out if streams or rivers are cleared for fencing to contain livestock. I have found that the agriculture agents work with (in most states) USGS and Corp of Engineers for advice if a waterway can, or should be, fenced to contain livestock.

If it is cleared for cross river fencing it is not considered public access waterway and permission is required.

The extension office has the land owner contact information, and in my experience a five minute phone call will get you permission to paddle, and in most cases a pretty decent report on the conditions of the river in regard to safety issues and wildlife in the area.

I have found that local farmers have some of the best real time information on some pretty cool places to go.

Public?
Good discussions by willi and Glen. The states determine the interpretation of the law.



I would also add the local interpretation. Some people just plain don’t like people in boats. In those places you have to look out for barbed wire fences and people with guns. I cannot emphasize enough the need to tread lightly and be careful out there. Fortunately, In the West it is almost always possible to find public land. Know where you are at all times.

Very Important: If you encounter
Law Enforcement officers in a debate over private land…DO NOT ARGUE. Just obey what they are telling you to do at the time and live to fight it out in court another day.

LA is a little different
because a court case muddied the waters about public water usage. Open for public commerce does not necessarily equal open for recreational use.



Try some of the links on this sight http://www.segnette.com/links.htm



There is one place I land at on a particular float and when my wife asked if we were allowed to I said “I think we have a legal right to be here but the security guard who could show up probably wouldn’t agree so let’s not dawdle”

Listen to Glenn

– Last Updated: Apr-21-13 8:19 AM EST –

and realize that people have been fighting/arguing about the answer to this question for ions and you will not find a definitive answer to a specific question you might have about the competing rights in any given situation in the pages of paddling.net.

Glenn's got the credentials, wouldn't you say?

Well we aren’t wanting him to
re present his WHOLE thesis.



Maine waterways are all public. Access to them is not always.

Yes, fighting for thousands of years

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I began my thesis with an exhaustive study of Roman law on the subject, then Spanish and French law -- which are called "civil law" countries, in which the laws are mainly codified by legislatures rather than invented and proclaimed by judges. I then moved into a long analysis of supposed English law from the 14th-19th centuries, and finally into and in-depth survey of American federal law and an overview of general categories of state law, explaining the proper interplay of federal and state laws.

My academic conclusion was that navigability has been a confused hodge-podge since Roman times, both in theory and even more so in practical application. I further found that the entire public trust doctrine was based on an incorrect understanding of English legal history by American judges and treatise writers in the 19th century, especially a wildly creative New Jersey judge in a key case.

The article was 105 pages long with 553 footnotes, and it seems to be too old to be archived in full text on the free internet, but here's the table of contents of the legal journal:

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/flsulr3&div=6&id=&page=

I should add that when I was in law school at FSU I clerked for the state agency that owns all non-navigable waters in Florida, and assisted in the litigation of many navigability cases against real estate developers and private land owners. After I graduated, my first job was to work for a law firm representing the developers and private landowners in navigability litigation against the state. Then I got my fellowship for an advanced law degree at Harvard, where I decided to investigate the murky historical sources for modern doctrines. After that, my career went in other directions.

In Arizona
ANY navigable waterway is public!



And a group of paddlers here test this regularly by floating down a seasonal river on a log or such… they win.



BUT, just because the law does allow you to use the water flowing through private land (you still need owners permission to beach on their land) the Law doesn’t really do anythingwhern the landowner decides to run a barbed wire fence across that river or stream!



Also a lot of rivers flow through indian Reservations which cause legal problems as the are a sort of ‘soverign nation’ status and the reservation can require you to buy a pass.



Also, although the Coilorado River through the Grand Canyon is public, the State can regulate howmany people are on that river at any one tine.



It’s like driving a car…

You have the right to drive a car on any road, BUT, the state can require you to buy a Drivers license and take a drivers course and charge a ‘repair fee’ so if the state wants to stop people from driving, they simply raise the DL fees and over-insure the driving schools until they all close which means you go to a yearly drivers school run bythe state at $500 a year plus $500 a year for your DL and a $500 repair fee per year.

It hasn’t been done yet, but it is legal and can be applied to anythingthe govt wants to regulate but cannot actually stop.



So, the state cannot actually stop people from running the Colorado River, but they can overregulate it to make it too expensive to run.



And to get back to your question, in arizona, the state cannot stop you from runnign a river through private property, but they can also be too “busy” to cut all those barbed wire fences the owners run across those ‘free access’ rivers.

Priviledge vs. Rights vs. Entitlement
Keeping a low profile, being respectful, quiet, descent,

pleasant and non-argumentative go a long, long way.

absolutely

LOOK HERE:
http://www.adventuresports.com/river/nors/us-law-menu.htm

Which court case is that?
Because I don’t believe a state court could trump SCOTUS decisions which state a stream which is navigable in fact is navigable in law.

You have the Spanish grant issue wrong

– Last Updated: Apr-22-13 5:53 PM EST –

The preexisting Spanish and Mexican land grants on some property actually make MORE streams publicly accessible than would otherwise be.

The law of Spain and Mexico did not distinguish public and private streams on the basis of navigability. This makes sense, since Spain has only one navigable river, located far in the south, so river navigation rights weren't important. Streams were valued primarily as a source of water for household use and for irrigation, rather than a way to move people and goods. So when the sovereign granted land, perennial streams were retained for public use, regardless of navigability, so as to make as much land as possible capable of settlement. A stream is perennial if it flows most or all of the year. In determining the rights of holders of title under Mexican grants, the laws of Mexico in effect when the grants were made control. So in counties that contain Spanish or Mexican land grants, there are an unknown number of perennial streams which are public streams, even though they may not be navigable.

So in Texas freshwater streams and rivers are open to the public if they meet anyone of three tests: (1) "Navigable by statute" ("'Navigable stream' means a stream which retains an average width of 30 feet from the mouth up"); (2) "Navigable in fact"; (3) or recognition as a perennial stream under a Spanish land grant issued prior to December 14, 1837.

The issues with Devils and Frio were not

– Last Updated: Apr-22-13 6:03 PM EST –

actual private ownership of the rivers, but perceived ownership by adjacent property owners coupled with very limited public access points to the rivers. The stream beds of the rivers are public property.

The law vs law enforcement knowledge
Well in my state any permanently flowing body of water that does not start and end on the same property is by definition a public waterway, but the average cop is probably not going to know that unless he(or she) is in the boat unit so if you have a cop in a car you are probably gonna be given a citation(written warning unless you have previous offenses) for trespassing, you can probably get a lawyer and beat the citation in court, but the average beat cop would be ignorant of this law.

Yes
And above all DON’T LITTER! I know most of us are dedicated “leave no trace” folks, but there are sure many paddlers who aren’t. It even behooves us to pick up after them if only to improve paddler relations with landowners. Fire scars are pretty bad form also.



As an aside, and a tangential, but interesting, issue that has been brought to my attention lately… stream-wide strainers.

We’d all, I think I’m safe in saying, prefer not to trespass on private lands to get around these even when state’s laws expressly allow it. So you take a small handsaw to clear a path - no more - through the small branches of a fallen tree. Wouldn’t you do the same on a road or sidewalk following a storm if the road crews hadn’t gotten there yet? I think of it as neighborly cooperation and almost a civic duty in that situation. And the situation on a navigable waterway is very similar if travel is allowed on it, wouldn’t you think?

From what I’m hearing here in this state, that’s apparently not so. The tree, dead or alive, is the property of the landowner who’s roots its on and he doesn’t have to clear it up if he doesn’t want to, even if it is blocking a public right-of-way like a stream. And we have no right to make a cut on his tree even if it is down and blocking a public waterway. We could be considered vandals and charged for doing so.



Seems like a pretty Draconian way for a modern government to address an ancient and common travel situation. Apparently liveries and other businesses can cut downed trees if it can be argued that it affects their business in some way, but we as simple travelers on a public right of way aren’t allowed to.

Now isn’t that an odd twist in a country with a history of pioneering and regard for the rights of the individual such as ours?



Water laws, as I understand it, are some of the first laws on record anywhere. Again, as I understand it (and like most of us my understanding is decidedly limited), one of the main reasons China first consolidated a formal government, one of the earliest, was to regulate water usage and travel on it. Water laws made a nation out of a bunch of tribes.

Yet here we are, thousands of years later, with “gray areas” in water laws that a truck could be driven through.

If not water travel rights, can anything ever be really decided legally?

That’s the way it is in most states

– Last Updated: Apr-23-13 3:22 PM EST –

I would favor private citizens being allowed to remove any obstruction to navigation by cutting the parts in the waterway, whether its roots were still on private property or not, but I don't see not being able to as such a big deal. Just quickly portage around it (which you would have the right to do in this situation, so what if an ill-informed landowner calls the cops, youll be long gone by then and would prevail in court anyway), it'll be quicker than cutting through it, then report it to the local fish and wildlife service or local river authority or flood control district. They are going to have an interest in removing any potential logjams that could lead to flooding, and they have the authority to remove it.

If it is on a public water body that you use regularly, and for some reason the local authority never gets around to removing it, send the landowner a polite and friendly (but certified) letter telling him that you want to inform him of the tree that is blocking the publicly navigable waterway running through his land. Ask him nicely if he could please remove it. Your tone should be as though you assume he had no idea the tree had fallen, and you're sure had he known he would have already removed it. Offer to help him out, maybe even to split the costs of a tree removal service with him. If he doesn't comply send him two or three more certified letters first stressing the flood risk the tree poses to him, the safety risk it poses to water users, how it necessitates walking on his land which is your legal right in this case but something you would rather not do if you could help it, and then later stressing his duty to remove the tree. Once you have this paper trail indicating he is aware of the obstruction to navigation but has refused to do anything about it, file a purpresture complaint with the proper authorities.

For help in figuring out who the landowner is, using topo maps and county property maps together are very useful, and then using the county appraisal district website to get contact information.

I don't think this is a matter of "gray areas" in the laws, but merely having the patience to avail yourself of the law by following the proper procedures.

Government agencies and tree removal?

– Last Updated: Apr-24-13 10:11 AM EST –

Your comment about reporting a blockage to some government agency, and your expectation that somebody there would actually do something, seems like quite a stretch. I honestly can't imagine a scenario where anyone in any branch of public service would care or even have such a responsibility. I don't see flooding as an issue at all, since the biggest, densest, nastiest log jams I've seen don't raise the river enough to notice (in fact, as soon as a tree falls and obstructs flow, the river simply scours a hole underneath it), but in any case, the very idea of "improving flow" has, for decades now, been seen as old-fashioned and counter-productive on any river small enough for logjams to be a consideration. What I have seen is that on any river with more than sporadic boat traffic (whether motorboats or paddle craft), someone will clear a path, and if there's no traffic to speak of but the river is narrow enough to be blocked by one or two trees, there will be not just those but dozens or even hundreds of others along any stretch long enough to be considered a daytrip. Maybe trees are scarce in Texas, but here, I think one probably falls across a river, somewhere in the state, about every five seconds :)