When are waterways private or public?

In my spare time at work I enjoy browsing Google maps looking for new places to canoe/kayak around my state. I have a quick question…how is a waterway defined? In other words, I know the Mississippi river, or any other major waterway in my area is open to public navigation. But, I see many smaller streams that seem to flow through, or very near private properties, i.e. farms, nice homes on multiple acre lots, etc.

Anyway, where is it defined what a private waterway is compared to a public one? Does a property owner actually “own” a waterway through his property?

Does the waterway have to be defined as navigable to be open to public traffic? Is it legal for you to be on the water, yet considered trespassing if you step out onto the bank? I guess it varies from state to state, but wondering if there was a basic rule of thumb.


You’re in better shape in much of LA,
because expansion/contraction of rivers, bayous keeps many private homes back from the water. My experience there is that most land owners aren’t silly about paddlers.

In Georgia, we lost a key court case, and an old and restrictive definition of navigability was upheld by the state Supreme Court. On non-navigable streams, the adjacent landowner owns the land under the river to the midpoint. Landowners could exclude us, but most do not.

If you have to stop on a non-navigable stream, for any of the usual reasons, just try to do so well out of sight of any houses or cabins. Common sense.

High water mark

– Last Updated: Apr-19-13 12:21 AM EST –

Most of the time you are allowed to move
around below the high water mark.

Public bridges have easements and you can access
via those easements as well (with a legally parked vehicle)

In regards to legal navigability of a waterway, for the public :
- they merely have to be used; to be considered navigable.
By court definition: “”a capacity for meeting the needs and necessities of the people”"
Historical commercial uses like floating logs downstream
during the lumbering era helps support navigability claims.

While the log floatation test was the old yardstick
by which many “navigability” claims were measured;
-it is “how” modern waterways best serve the public (as historical intent of law)
that allows recreational usage to be considered in the determination of navigability.

The capacity for beneficial public service is paramount
towards being deemed navigable.
Courts adopted a rule of “capacity for use to meet public necessity” as the true test.
Entitlement to paddle upon any given waterway involves
the “capability of sustaining travel”.
Waterways are public paths, expected to be open to travel and other uses.
This public expectation is still valid today in a modern society.

Tread cautiously, be polite, be nice,etc.

Here in NC
If the waterway is navigable it is open to the public.

If it is not navigable, and the property owner owns both sides, he can post it.

If he only owns one side he can’t post it, but he can post his property.

I guess navigable would be determined by the courts

jack L

Best to check paddling guides
If you are unfamiliar with an area, your best bet is to check paddling guides like those from the Appalachian Mountain Club, ADK and similar publications for other regions. Things are moving here - a section of a long-used canoe passage was blocked for quite a while by new owners of adjacent properties and the court just upheld paddler’s rights there within the last year. Newer property owners are being a problem in many areas where no one ever thought about it before.

Also, do NOT assume that you are good up to the high water mark everywhere. There are a number of states that use a lower point, for example in Maine it is mean low tide. That means officially you can’t pull out on some inviting but private island except for maybe an hour during daylight, on a very low tide day. Curiously, if you are doing it to check out your navigation and plot a course, or fish, you can go a bit higher. It is good to always carry paper charts in Maine even if you don’t know how to use them, because they are more compact than a fishing pole.

check your state regulations
This recent case in GA involved a channel along the savannah river that diverges and then rejoins the rivr, forming an island. The State had ruled that the channel, though navigable, was private property. This is in conflict with the federal position that if the river is navigable, it can be used publicly.

Here’s a link to the case:


That has to be pretty restrictive in some places - Maine tides can be pretty dramatic, no?

The Maine Island Trail (and membership in it) is the solution.

someday, I hope
The only time I was in Maine, I had a limited schedule and no kayak (or fellow kayakers to paddle with). But the trip really made me want to come back and paddle Downeast, Acadia, and the coast, to Canada. Amazing scenery.

The tides also told me I’d better not try it alone!

and if not there are Bureau of Public
Lands islands and quite a bit now in conservancy on the shore.

Its best not to disembark in front of someones house without asking permission.

And most of us paddling the coast have a map. Enter navigation


It all arose from beachfront property owners… Its not stopped surf kayaking on the beaches south of Portland.

some rivers private?
As people have said, navigable streams are public,

but the adjoining land may be private.

Nonnavigable streams are owned to the middle by

the adjacent landowner. Defining navigable and

stream bed is more difficult.

There seem to be exceptions, though. I read that

due to some old Spanish land grants, some Texas

river beds (Devil’s River, Rio Frio) are

apparently at least partially privately owned,

meaning you trespass the moment you step out of

the boat and you’ll find barbed wire fences (some

legal, some illegal) strung across the river,

maybe with a “No Trespassing” or “Private River”


Legal or not, let me quote from some old copy of

“Rivers and Rapids”: “Needless to say, there’s no

doubt of the outcome if arguing these points out

in the middle of nowhere with some irate landowner

toting a Winchester.” Of course you can report

any incident afterwards (if you live to tell it),

but I also read that even if you are legally

right, enforcement is weak to non-existent, since

the sheriff is elected by those same landowners

and doesn’t give a damn about some vacationing

city paddlers.

Lots of insight and knowledge posted in your responses. Thanks!

Quick Note

Though many waterways are public and legal, not all are advisable for paddling. Even many common trips have landowners who are not “paddler friendly” and others are outright hostile and destructive. With any unknown stretch of water, keeping a low profile us a good idea.

not always
Check out the Shingle Shanty case in NY State.

Laws vary state to state, so any response has to be state specific.

Get as much local info as possible
Colorado is among the states that has had some potentially deadly situations involving landowners overstepping their bounds and putting boaters in deliberate danger.

You don’t want to be dead right.

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.

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.