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Whatever Floats Your Boat

March 25, 2011
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“Are you aware that the U.S. Army Corps of Engineers (USACE) considers this stream navigable?” This question, put to me during a recent cross-examination, highlights the emphasis placed on navigable waterways in this country. However, the attorney posing the question (whether purposefully or accidentally) neglected to include the context in which the question should be considered. In fact, the correct answer depends on whether the proximate question is one of property ownership or of regulatory authority.

Although property rights on major rivers have long been in contention in those parts of the United States where access to water is scarce, litigation regarding access to smaller waterways is becoming a common occurrence in other parts of the nation, whether for purposes of access, recreation or municipal water supply.

Water boundaries are common in many regions, and the surveyor may be required to show the extent of ownership when the only available description reads “… to the river, thence with the river …” Determining navigability of a waterway is an essential step in determining boundary location in such cases, but at least two additional proximate questions are also essential: “What definition shall we use?” and “Who actually holds title to the bed of the waterway?”

Title to the beds of navigable rivers was originally vested in the individual states upon the admission of each state into the Union, but with the caveat that an “inalienable public trust” (also referred to as the public trust doctrine) existed on these rivers in the form of an easement for commerce, navigation and other approved public uses. While each state has its own unique variations in case law and statute, we can gain some perspective on these issues by considering the evolution of the relevant case law in North Carolina.

Navigable waterways have been and remain important for travel, shipping and communications in North Carolina, where they are described as “natural highways, so recognized by government and the people, and hence, it seems to be accepted as part of the common law of this country, arising out of public necessity, convenience, and common consent.”1 Early uses included not only sea-going craft but also canoes, flatboats and rafts. In addition, although North Carolina waterways are no longer regularly used to float timber from logging sites to lumber mills (as was often the case in colonial times), their significance to the early timber industry is readily apparent in the recently developed industry of “mining” ancient timber from the sediment of various estuaries along the eastern seaboard.

One of the original definitions of “navigable” discussed by the North Carolina courts is the lunar tide test, also called the ebb and flow test. This test was used in English courts and was applied (at times) in the colonies. It was also apparently applied incorrectly (according to later North Carolina cases) in the 1828 case of Wilson v. Forbes.2 However, in the recent landmark case of Gwathmey v. State of North Carolina, the court makes clear that this test “has never been part of the English common law applied in this state before or after the Revolution. Therefore, it is not a part of the common law to be applied in North Carolina.”3 Nevertheless, this test is still considered a legitimate element for consideration by USACE.4

In State v. Tyre Glen, the court actually defined three categories of waterways. The first group (then classified as “navigable”) were described as follows.

All the bays and inlets on the North Carolina coast, where the tide from the sea ebbs and flows, and all other waters, whether sounds, rivers or creeks, which can be navigated by sea vessels, are called navigable…Where the tide ebbs and flows the shore, between the high and low water, is also within the prohibition of private appropriation, under the general entry law, but may be the subject of a direct, special legislative grant.5

The waterways encompassed by this category that fall seaward of the “low water mark” would, in all probability, fall within the U.S. Supreme Court definition of the word "navigable" (see page 48). In this situation, ownership by private individuals along a non-tidal waterway will generally end at the ordinary high water mark. (It should be noted that Gwathmey raises the possibility that the public trust doctrine does not preclude the conveyance of fee simple title under navigable waterways by legislative act, referring to it as a “rule of construction” and a “common law doctrine” without constitutional basis.)

North Carolina did not ignore the very real need for the public to be allowed a limited use of other waterways in the state which might fall outside the strict definition of the time. The second category defined in State v. Tyre Glen is described as being “all the rivers, creeks, and other water courses but which are, in fact, sufficiently wide and deep to be navigable by boats, flats and rafts, are technically styled unnavigable, and are open to be appropriated by individuals, by grants from the state, under the entry laws.” In these situations, the limit of ownership by upland riparian owners varies, depending on the wording of the original grant from the state, as well as on the wording of subsequent mense conveyances of the property in question. Often in cases of this type, the original grant included fee simple title to the bed of the stream, but the riparian owners along the waterway in question are entitled to an “incidental easement” for the use of the waterway.

The third category of waterways described in the Tyre Glen case is composed of “rivulets, brooks and other streams, which, from any cause, cannot be used for intermunication by inland navigation.” These waterways are considered to be generally included along with the land grants over which they run, and they can be made use of by the owner for any lawful purpose.

A consideration that has gained more significance in recent years is the issue of navigability by pleasure craft. As early as 1904, in the case of State v. Twiford, North Carolina recognized the importance of small watercraft for pleasure boating.

If water is navigable for pleasure-boating, it must be regarded as navigable water, though no craft has ever been put upon it for the purpose of trade or agriculture. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation. It would be a serious detriment to the public if water, capable of such usefulness as here, can be made private property by buying up the adjacent land. The control of such water belongs to the public and is not appurtenant to the ownership of the shore.1

This point was reinforced by the 1995 landmark ruling in Gwathmey.

The definition developed by the United States Supreme Court appears to be divided into two subcategories--navigable waters of “the states” versus those “of the United States.” These categories are similar in many ways, but the second adds a caveat requiring that the waterway in question must form part of a conduit for navigation to other states or nations. In the case of The Daniel Ball, the U.S. Supreme Court stated:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.6

It is interesting to note that the passenger ship Daniel Ball was specifically designed for the 40-mile river route it traveled (with a draft of only 2 feet) and was not considered capable of navigating beyond the mouth of the Grand River on to Lake Michigan. Nevertheless, the U.S. Supreme Court concluded that the Grand River formed a link in a chain which could be used for interstate commerce since it does form a “link” with Lake Michigan.

A few years later, the Supreme Court refined its definition.

The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.7

This case hinged on the capacity of the river in question to allow passage of canoes bearing loads of furs.

Within the documentation available from the USACE, we find yet again two different categories of waterways defined for different purposes: 1) “Waters of the United States” can include wetlands, ponds, and intermittent streams. While the Corps does have jurisdiction over these waters, they are not necessarily considered part of 2) “Navigable Waters of the United States,” defined as “all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide. … This definition includes ‘traditional navigable waters’ plus all other waters that are navigable-in-fact (e.g., the Great Salt Lake, UT and Lake Minnetonka, MN).”4 It is important to note that although the surveyor may be required to work with USACE standards, these are not applicable to the determination of the extent of property ownership but only to the extent of the regulatory authority of the Corps. USACE regional offices can frequently provide lists of those waterways within their jurisdictions considered navigable, but they emphasize that the absence of a waterway from the list should not be considered proof that the waterway is non-navigable.

In his book on water boundaries, Bruce S. Flushman describes the litigation regarding such boundaries as “prosecuted and defended at a level of intensity and with a tenacity rivaled in nature by the to-the-death conflict between a mongoose and a cobra.”8 (I couldn’t help but think in response that there things even a cobra wouldn’t do!) He goes on to describe in great detail seemingly contradictory decisions reached on cases with virtually identical scenarios. His lively choices of conflicting case law from various state and federal courts admirably illustrate the uncertainty that a surveyor can face when challenged to represent the status of a given waterway on a plat. Certainly, the surveyor who would perform a boundary retracement along a waterway had best check to see how deep the water is before diving in.


Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.

References

1. State v. Twiford, 136 N.C. 603; 48 S.E. 586; 1904.

2. Wilson v. Forbes, 13 N.C. 30, 34; 1828.

3. Gwathmey v. State of North Carolina, 342 N.C. 287; 464 S.E.2d 674; 1995.

4. Definition of Navigable Waters, USACE 33 CFR 329, and Appendix D.

5. State v. Tyre Glen, 52 N.C. 321; 1859 N.C.

6. The Daniel Ball, 77 U.S. 557; 1870.

7. The Montello, 87 U.S. 430; 1874.

8. Flushman, Bruce S., Water Boundaries: Demystifying Land Boundaries Adjacent to Tidal or Navigable Rivers, Wiley, 2002.

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