This article is about public ownership of rivers, public
rights to use rivers, and river conservation. If you are faced with a river
access or conservation dispute, do not try to “settle” it with
confrontations or threats of violence, which can lead to criminal charges,
fines, and jail time, without settling anything. Instead, follow the steps
outlined at the end of this folder. By reading this article and related
materials, you can educate yourself and other people about river law, and avoid
costly and frustrating problems.
What are the origins of public ownership of rivers, and
public rights to use rivers? The U.S. Supreme Court has held that rivers
have been public since ancient times, in all civilized societies. Classical
Roman law held that “running water” is “common to mankind.”
It held that “all rivers and ports are public, hence the right of fishing
in a port, or in rivers, is common to all men.” It held that this is one
of the “Laws of Nature,” which are “established by divine
providence,” and which “remain forever fixed and immutable.” It
recognized public rights to use the banks as well as the surface of the water,
on non-navigable as well as navigable rivers. This was based in turn on the
laws of Greece and other ancient civilizations.
These principles continued into the law of the emerging European
nations. In England, some rivers and their banks were fenced off by the
medieval Saxon and Norman kings, for private use by the kings and noblemen, but
public rights to fish and boat were reaffirmed by Magna Charta in 1215. A major
legal treatise in 1250, again citing the Laws of Nature, said that
“running water” is “common to all,” and “all rivers
and ports are public, hence, the right of fishing in a port or in rivers is
common. The use of the banks also is as public as the rivers.” Spanish law
at the time also reflected the law of earlier civilizations, holding that
“every man has a right to use the rivers for commerce and fisheries,”
on both navigable and non-navigable rivers, including the river banks. French
law also held that rivers and riverbanks are “public things, the use of
which is common to all.” Institutes of Justinian, 2.1.1;
Digest, 43, 12, 1, 1. On the Laws and Customs of England, Henry
de Bracton, 1250. Las Siete Partidas, Alfonso X, 1265. French Civil
Law, Jean Domat, 1694.
In America, public fishing rights were codified shortly after
the colonies were founded. In the 1640s, the city of Boston established
laws to protect public rights to fishing waters, and the Massachusetts Bay
Colony declared public rights to fish in the “great ponds,” and to
cross private property, if not cultivated, to get to the water. People tend to
assume that fishing at that time was just for sustenance, but the sport of fly
fishing was already popular in Europe before America was colonized, and in
Philadelphia there were at least five different fishing clubs before the
Revolution. The Treatyse of Fysshynge wyth an Angle, Juliana Berners,
1496. The Little Treatise on Fishing, Fernando Basurto, 1539 (Spain.)
The Art of Angling, William Samuel, 1577. Massachusetts Declaration
of Fundamental Liberties, 1641-1648. The Compleat Angler, Izaak
Walton, 1676. The Art of Angling, Richard Brookes, 1740.
After the American Revolution, state and federal courts
upheld public fishing rights, as well as state authority to regulate fishing to
conserve fisheries. In Arnold v. Mundy, the owner of land next to a
river claimed private ownership of the fishing rights, but the court said this
amounted to claiming that “Magna Charta was a farce.” The court
relied on “the law of nature, which is the only true foundation of all the
social rights,” and said Magna Charta was “nothing but a restoration
of common rights,” then held that the state “cannot make a direct and
absolute grant of the waters of the state, divesting all the citizens of their
common right,” adding that such a grant “never could be long borne by
a free people.” In Martin v. Waddell, the U.S. Supreme Court held
that in America, as in England, the public has a “liberty of fishing in
the sea, or creeks, or arms thereof, as a public common of piscary.”
(Fishing place.) In subsequent cases, the U.S. Supreme Court held that states
hold surface waters “in trust” for the people, so that the people
will have “liberty of fishing therein freed from the obstruction or
interferences of private parties.” It held that a state cannot
“abdicate its trust over property in which the whole people are
interested,” and that rivers “shall not be disposed of piecemeal to
individuals as private property.” These principles are now known as the
Public Trust Doctrine. Arnold v. Mundy, 6 N.J.L. 1 (1821). Martin v.
Waddell, 41 U.S. (16 Pet.) 367, 10 L.ed 997 (1842). Illinois Central
Railroad Co. v. Illinois, 146 U.S. 387, 36 L.ed 1018 (1892). Shively
v. Bowlby, 152 U.S. 1, 38 L.ed 331 (1894).
To this day, state constitutions affirm public ownership of
all running waters. They typically say that “every natural
stream” or “all surface waters” are owned by the state, for use
by the public. Various state courts have upheld public access to running
waters, calling it an “easement,” and saying, for example, “The
capability of use of the waters for recreational purposes determines their
availability for recreational use by the public. Streambed ownership by a
private party is irrelevant. If the waters are owned by the State and held in
trust for the people by the State, no private party may bar the use of those
waters by the people.” Public access to streams, and trails along streams,
is further supported by the legal doctrines of custom and prescription.
Willow River Club v. Wade, 100 Wis. 86, 76 N.W. 273 (1898). Taylor v.
Commonwealth, 102 Va. 759, 47 S.E. 875, 102 Am.St.Rep. 865 (1904). Day
v. Armstrong, 362 P.2d 187 (Wyo. 1961). People v. Mack, 97 Cal.
Rptr. 448, 19 Cal. App. 3d 1040 (1971). Montana Coalition for Stream Access
v. Curran, 210 Mont. 38 (1984).
What about navigable rivers? While all running waters are
held in trust for the public, rivers and streams that are navigable have
additional legal status. Public navigation rights, like fishing rights, have
been recognized since ancient times. After the American Revolution, the
founding fathers moved quickly to ensure public rights to navigate on all
navigable rivers and streams. In discussing rivers and their tributaries, the
very first law passed by the United States Congress said these “navigable
waters,” as well as “the carrying places between the same, shall be
common highways, and forever free” to the public, “without any tax,
impost, or duty therefor.” An additional federal law in 1796 confirmed
public rights to “all navigable waters.” Note the reference to
portable watercraft such as canoes, and the right to carry them from one
stretch of river to another. River navigation at the time was in canoes and
small boats, using oars and paddles. Canoes and kayaks are thousands of years
old. (“Canoe” was an Indian word, and the Eskimo word
“kayak” is related to the ancient Greek word for a small boat.) From
1804 to 1806 the Lewis and Clark expedition, sponsored by Congress and
President Thomas Jefferson, canoed from St. Louis to the Pacific Ocean and
back, carrying their canoes where necessary. (Steamboats were not developed
until later in the 1800s.) Also note that government agencies cannot charge
fees for river access, and that public rights to rivers are
“forever,” not just until landowners try to block them. In 1954,
courts held that a canoeist was not trespassing when he pulled his canoe over a
landowner’s fence across a stream (pushing down the fence in the process,)
continued canoeing on the stream through private land, pulled the canoe up on
the bank to get around a log jam, then waded on the streambed to fish, before
getting back in the canoe and continuing downstream, leaving the private land.
Courts have recognized “a public right of access for fishing and
navigation to the point of the high water mark,” adding that the public
can “cross private property in order to portage around barriers in the
water,” but holding that “the right to portage must be accomplished
in the least intrusive manner possible.” In addition, federal courts have
held that “all navigable rivers” are subject to the federal
navigation servitude, and are therefore open to navigation by the public,
regardless of state or private ownership of the beds and banks. For example,
the Jackson River in Virginia is navigable because, as the court ruled,
“canoes can navigate the upper river without trouble except during the
late summer, and canoeing experts consider the Jackson to be a very fine
canoeing stream, except for troubles with landowners along the river.”
Northwest Ordinance of 1787, 1 Stat. 50. Act of May 18, 1796, 1
Stat. 464. The Journals of Lewis and Clark, 1804-1806. Gibbons v.
Ogden, 22 U.S. 1, 6 L.ed 23 (1824). Elder v. Delcour, 364 Mo. 835,
269 S.W.2d 17 (1954.) Loving v. Alexander, 548 F.Supp. 1079 (1982).
What about navigability for various legal purposes? While
all running waters are held in trust for the public, and all rivers and streams
that are physically navigable are open to public navigation, rivers and streams
that are navigable for title purposes have a third level of legal
status. Federal courts have held that those rivers that are used (or capable of
being used) in their natural condition, for the transportation of people or
goods, using customary watercraft, are navigable for title purposes. (Other
qualifications determine navigability for Commerce Clause purposes, or
navigability for Admiralty Law purposes.) For title purposes, a river that is
useable for tourism definitely qualifies, as does a river historically used, or
capable of being used, by fur trappers in canoes, or by lumbermen floating logs
downstream to mills. For example, federal courts held that the McKenzie River
in Oregon is navigable for title purposes due to historical use to float logs
to mills, and current use by guided fishing trips in rowboats. The Gulkana
River in Alaska is navigable for title purposes due to current use by guided
raft trips for sightseeing and fishing. Note that occasional shallow spots,
blockages, waterfalls, or unrunnable rapids do not prevent a river from being
navigable for title purposes. Courts even held that the Niagara River in New
York is navigable (assuming you portage around Niagara Falls!) Also note that a
waterway can be navigable even if it is called a “stream” or
“creek” on maps and signs, and even if it is only physically
navigable during the boating season, not all year.
The U.S. Supreme Court has held that the beds and banks of
rivers and streams that are navigable for title purposes are owned by the
states. (“Title” means ownership.) The court has held that when the
original thirteen states took sovereignty of their land from the British after
the American Revolution, they became the owners of the land underlying waters
that were navigable for title purposes. The states that later entered the union
also own the land under such waters, under the Equal Footing Doctrine. The beds
and banks of these rivers and streams are a strip of public land, to be
conserved for public benefit, even where the river or stream passes through
private land. This strip of land is often called the “submerged and
submersible land,” as opposed to the “upland.” Pollard v.
Hagan, 44 U.S. (3 How.) 212, 11 L.ed 565 (1845). Economy Light &
Power Co. v. United States, 256 U.S. 113, 65 L.ed 847 (1921). Sawczyk v.
U.S. Coast Guard, 499 F.Supp. 1034 (W.D.N.Y. 1980). Montana v. United
States, 450 U.S. 544, 452 U.S. 911 (1981). State of Oregon v. Riverfront
Protective Association, 672 F.2d 792 (9th Cir. 1982). Alaska v. Ahtna,
Inc., 891 F.2d 1401, (9th Cir. 1989), cert. denied, 495 U.S. 919
(1990).
Where is the boundary between public land and private land
along a river that is navigable for title purposes? Until the early 1800s
the boundary was at the highest level the water reached during floods. Since
then courts have set the boundary at the ordinary high water line,
although the government still has public trust authority over the zone between
the ordinary high water line and the highest level, for purposes such as
conserving wetlands and preventing pollutants from washing into rivers. The
ordinary high water line is the visible line on the ground between land that is
affected by the water and land that is not. (It is not a theoretical line
requiring hydrologic records and surveying to locate.) Below the line, the
surface of the ground is sand, gravel, and rocks, and the vegetation is plants
that only grow near water. Above the line, the surface is dirt and soil, and
the vegetation is “upland vegetation,” of a type that is found even
well away from the river in that area. Gravel bars and sandy beaches along
rivers, since they are formed by frequent depositing of sand by the river, are
below the ordinary high water line. On rivers that are navigable for title
purposes, the beds and banks are public trust land up to the ordinary high
water line, (not just a public easement,) and the adjacent private lands (or
other types of government lands) begin at the ordinary high water line.
Landowner fences and “No Trespassing” signs should be located above
the ordinary high water line. Small dams, used to divert water from the river
to irrigation ditches, should be located so as to not block navigation. (See
previous case citations.)
Who determines which rivers are navigable? As the U.S.
Supreme Court has repeatedly said, “rivers that are navigable in fact are
navigable in law.” If the river is physically navigable, for whatever
purpose is in question, it is legally navigable. No official designation is
necessary. Note that navigability for title purposes is a matter of federal
law, even though it determines state ownership. State governments can make
factual determinations of title navigability based on the weight of the
evidence, and they can affirm that various rivers are navigable. But where they
have not yet done so, the rivers that are “navigable in fact” are
still “navigable in law,” and are still public. (They are not private
until the state government gets around to designating them as public.) Also,
note that state courts and legislatures cannot establish their own more
restrictive standards of navigability; they must abide by the national
standards. If they say a particular river is not navigable for title purposes,
but the river is physically navigable in fact, their opinion is not
determinative. Brewer-Elliott Oil and Gas Company v. United States, 260
U.S. 77, 43 S.Ct. 60, L.Ed 140 (1922). United States v. Utah, 283 U.S.
64, 75 L.Ed. 844 (1931). Utah v. United States, 403 U.S. 9, 29 L.Ed.2d
279 (1971). State v. Corvallis Sand and Gravel Co., 429 U.S. 363, 50
L.ed 2d 550 (1977).
So what are the public’s rights to fish and boat on
various rivers? As explained above, there are three levels of public rights
to rivers and streams:
First, the public has the right to use all running waters, (even
streams that are not physically navigable,) for activities such as fishing,
(subject to state regulations to conserve fisheries,) and to walk along the
banks as necessary to use these waters, in the manner that is least intrusive
to private land.
Second, on streams that are temporarily physically
navigable by small craft, (even if they are not navigable for title
purposes,) the public has the right to navigate, and to scout and portage
around rapids, falls, or other obstacles, in the manner least intrusive to
private land.
Third, on rivers and streams that are, in fact, navigable for
title purposes, (because they fit the description given earlier, with or
without official designation,) the beds and banks are public land, up to the
ordinary high water line. Courts have held that the public can engage in other
responsible recreation (in addition to fishing and boating) within this zone,
such as picnics, camping, walking, resting, reading, photography, and painting.
When walking along the river, the public can walk above the high water line
where necessary to get around obstacles, in the manner least intrusive to
private land. The public can use the banks of these rivers year round, even if
the water has dried up. (On rivers that are not navigable for title
purposes, the public can only use the banks as necessary to make use of the
water, and the right to use the banks comes and goes with the water.)
Government agencies cannot sell or give away rivers to private
ownership or control, because rivers are held “in trust” for the
public under the Public Trust Doctrine. They must allow the public to fish,
boat, and recreate as described above. They must conserve the strip of public
land along navigable rivers, including its wildlife habitat and wetlands. They
can manage recreation to conserve resources of public interest, but not simply
to reduce or eliminate recreation. They can prohibit camping in particular
areas, but not exclude it entirely from long stretches of river.
On the other hand, they can (and must) prohibit activities that
harm public resources, such as leaving trash or tearing up the beds or banks of
a river with vehicles. They must limit mining, and the taking of sand and
gravel, to certain areas. They must prevent the discharge of sewage and
pollution into rivers, and prevent toxins and livestock dung from accumulating
on lands along rivers and washing into rivers during floods. They must prevent
adjacent landowners from bulldozing and landfilling along the banks of rivers.
They must manage water appropriations so as to leave enough water in rivers for
fisheries and navigation.
Note that navigability law developed before the invention of
motors, and it does not confer motorboating rights. In keeping with the Public
Trust Doctrine, government agencies must only allow motorboats at times and
places where they are not a major impact on other river users. They can also
require motors to be of the quieter types made possible by new technology.
Also note that navigability law does not confer commercial
operating rights. In keeping with the Public Trust Doctrine, as well as other
authority to regulate commerce, government agencies must limit commercial river
trips to certain places, times, and volumes, so as to avoid major impacts to
other users. They can also limit activities on commercial trips, such as lunch
stops, to certain areas. Illinois Central Railroad Co. v. Illinois, 146
U.S. 387, 36 L.ed 1018 (1892). Swan Island Club v. Yarbrough, 209 F.2d
698 (1954). Hitchings v. Del Rio Woods Recreation & Parks District,
55 Cal. App. 3d 560, 127 Cal. Rptr. 830 (1st Dist. 1976). People v. El
Dorado County, 96 Cal. App. 3rd 403, 157 Cal. Rptr. 815 (3d Dist. 1980).
National Audubon Society v. Superior Court of Alpine County, 658 P.2d
709 (Cal. 1983).
What if a property owner’s deed says he owns the
river? First, it’s important to examine the deed and other local
documents. A landowner may believe that he owns the river, but public rights to
rivers are “prior existing rights” and are frequently mentioned as
such on deeds. Even if they aren’t mentioned, by law a deed can only
convey things that were actually owned by the seller. In some cases early
property surveyors mentioned public rights to rivers, and in other cases they
neglected to do so, but either way their actions are not the deciding factor.
Public rights to rivers are a matter of law, dating back to the founding of our
nation and earlier. They are not decided by local deeds.
Deeds often say that the boundary between two farms runs down
the middle of a river. That boundary arbitrates the competing claims to the
river between the two farms, not the competing public and private claims to the
river. It is incorrect to rely on such a deed to deny public ownership or use
rights on a river.
If a court or agency declares that a river is open to public
use, wouldn’t that be a “taking” under the Fifth Amendment,
entitling the landowner to “just compensation?” No, because
rivers were public before the original property deeds were prepared. When a
court holds that a certain river is open to public use, it is saying that it
was public all along, not that it was previously private and is now
public. It is sad that some attorneys still suggest to landowners that they
could receive money if “their” river is opened to public use. Courts
have affirmed public rights on thousands of miles of rivers, and never paid
opposing landowners anything. In addition, courts have made opposing landowners
pay the attorney’s fees of nonprofit organizations working to confirm
public rights to rivers. Gibson v. United States, 166 U.S. 269, 41 L.ed
996 (1897). Loving v. Alexander, 548 F.Supp. 1079 (1982). Arizona
Center for Law in the Public Interest v. Hassell, 837 P.2d 158 (Ariz. App.
Div. 1 1991).
What about public access to and from rivers? As explained
earlier, the law is that the rivers and the carrying places between them shall
be forever free. The public does not have a general right to cross private land
to get to and from rivers, but such a right exists at traditional access
routes, under the above law and the legal doctrines of custom and prescription.
States have an affirmative duty to maintain traditional access routes to
rivers, and acquire additional access where needed and available. Where public
roads cross over rivers, the public has the right to get from the bridge down
to the river itself, so landowners cannot connect fences to bridge abutments in
a way that blocks public access to the river. 39 Am.Jur. 2d (1968) Highways,
Streets & Bridges, section 256, p. 644. State ex rel. Thornton v.
Hay, 254 Or. 584, 462 P.2d 671 (1969). Gion v. City of Santa Cruz, 2
Cal. 3d 29, 465 P.2d 50 (1970). People v. Sweetser, 72 Cal. App. 3d 278
(1977).
How are river ownership and access rights affected by state
law? As explained earlier, public rights to rivers are primarily a matter
of federal law, based on law recognized since ancient times in all civilized
societies. State governments can manage river resources, but in ways that do
not conflict with federal law. Since state governments hold river resources
“in trust” for the public, they cannot sell or give them away to
private ownership or control. However, some states are better trustees of
rivers than others. (See the separate folder for specifics about your state.
Separate folders have been prepared for some states, and are still being
prepared for others.)
Important! What to do in case of river disputes: First,
do not try to “settle” river disputes by confrontations or threats of
violence, which lead to irrelevant criminal charges that can cost you a fine
and land you in jail, without settling anything. Instead, leave the river and
avoid a confrontation.
Second, it could be very unwise to sue anybody or try to
initiate a “test case.” The pertinent facts in any river dispute must
be legally proven and admitted in court, which takes a lot of time and costs
thousands of dollars. The landmark river law cases took years to go through the
appeals process, and were litigated by specialized attorneys working full time
for months. If you seek justice for a river issue in local courts, the costs
and frustration will be enormous, and in the end the court is very likely to
rule on narrow, technical grounds that don’t solve the real issue anyway.
Even if you win a case, it won’t significantly change either law or
practice. People will revert to their usual assumptions.
So what do you do? The way to make progress toward resolving
disputes is through discussion and education among river users, adjacent
landowners, sheriffs, district attorneys, private attorneys, and government
agencies. If the issue involves environmental damage or construction near a
river, distribute this folder to all of these people, perhaps with copies of
the law journal articles listed below. Talk especially with government agencies
that manage natural resources, and consult environmental law attorneys who have
experience with river law.
If the issue is public recreational access, leave the river and
avoid a confrontation, then distribute this folder and related materials to all
of the above people. Meet with them in person when possible, or if not,
communicate in writing and by phone. Explain the problem clearly and simply,
and ask them to correct it, in compliance with existing law. If you have an
attorney, take him with you to meet with these other people, but try to make
progress through this process of meetings and education, before proceeding with
legal action. If a local court previously convicted a river recreationist of
trespassing, that is not determinative of current rights, because public rights
to rivers are primarily a matter of federal law. However, a new court case
is usually not necessary or helpful, for the above reasons. New state
legislation is usually not necessary or helpful either, for similar
reasons.
Since having a truly private river could be of real value, some
people will never admit that “their” river is actually public.
Whenever a court confirms that the public does have certain rights on rivers,
they try to say that the public has only those rights, no others.
Instead of recognizing the public’s right of access to “all running
waters” and “every natural stream,” these people try to limit it
to only navigable streams, then only to rivers that are navigable in
larger watercraft, then only to rivers that have been officially
designated as navigable. Or they try to limit public rights to only the
surface of the water, or only to touching the beds and banks while
boating, not while fishing. All of this is simply a stalling tactic to
avoid complying with the law. It is also an enormous waste of time.
However, most people are willing to look at the law. Therefore
you can make a tremendous difference by educating more people about public
ownership of rivers, river conservation, and public rights to use rivers for
responsible recreation, using this folder and other relevant materials.
Do not expect immediate success. The wheels of government turn
slowly, and it takes time for people to shift their beliefs. When you work on
river issues like these, you are working for the long term, not for immediate
results.
References: The court decisions cited herein are available at
any law library, or from regular libraries through interlibrary loan. Most
state constitutions, many U.S. Supreme Court decisions, and other legal
materials are available on the Internet. For further discussion of river law,
see the following law journal articles: Forever Free: Navigability, Inland
Waterways, and the Expanding Public Interest, by Richard M. Frank. 16 U.C.
Davis Law Review 579 (1983). The Public Trust: A Sovereign’s Ancient
Prerogative Becomes the People’s Environmental Right, by Jan S.
Stevens, 14 U.C. Davis Law Review 195 (1980). Public Trust Rights, by
Helen F. Althaus et al., U.S. Department of the Interior, Office of the
Solicitor (1978). (Available from the Oregon Division of State Lands.)
Note: See the specific article for your state, if
available. Permission is hereby granted to print out and make copies of this
article for distribution to the parties in a river dispute. A version of this
article as a printed folder, with illustrations, is in production.
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1978.
For more information on your legal rights to canoe, kayak,
raft, fish, picnic, camp, walk along, and otherwise visit rivers, see the other
items on the River Law menu.
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