Editor’s note: The following are excerpts from POB columnist Kristopher Kline’s new book, “Riparian Boundaries and Rights of Navigation” (56 pages, softcover). The text that appears in red are quotes from the particular case that Kline is referencing. It runs here as it appears in the book. This article includes some of the more enlightening and interesting cases that Kline has included in his new book. The format of this book includes cites within the relevant text.
“Many phases of … land and water law are apparently in not a very satisfactory, or settled condition. This condition has, we believe, been brought about by attempts to apply fully evolved modern law of real property to rights and interests which had become fully established long before the legal rules were perceived. It was an attempt to apply a new system of law to an old state of facts ‘upon the theory that the law had always existed in the improved form, which was merely fiction, and was impossible of application in the present instance’ ”
Excerpt from: Waters of the State – Property in Virginia.
Written by Alvin T. Embrey (Old Dominion Press, 1931)
To build a true understanding of the rights associated with watercourses, it is essential to dispel three erroneous concepts often associated with riparian boundary problems. The three statements below will be demonstrated convincingly in the pages that follow:
- There are more than two categories of waterways; some waters may be navigable to a limited degree.
- No single definition of “navigable” applies in all circumstances.
- Definitions created by the U.S. Army Corps of Engineers (U.S.A.C.E.) or other regulatory parameters have no applicability when determining property ownership.
- Effect of Subsequent Legislation
- Navigable at Time of Statehood
- Section Two –Public Right of Navigation
- Georgia – Case Study 1
The first major hurdle to understanding the many definitions associated with waterways is that the question of navigability may not have a simple “yes or no” answer. This tiered view has been well established throughout the development of the American legal system, but the distinction has been lost in some jurisdictions in recent years. An early article from the Virginia Law Review emphasizes that the early English system recognized three categories of watercourses, but also notes that more recent decisions have not always recognized this principle: The rules of the common law, however, came to be misapprehended. And the impression became general in certain jurisdictions that in England (where the test of navigability was whether or not a stream was tidal) there were only two classes of streams, in one of which, title to the bed of the stream was in the sovereign, and all of the owner’s rights subject to be defeated at the will of the sovereign: and in the other, title to the bed of the stream was in the riparian owner, and his rights superior and exclusive. The Rights of the Riparian Owner upon a Fresh-Water Stream Navigable in Fact Author(s): Andrew D. Christian Source: Virginia Law Review, Vol. 2, No. 6 (Mar., 1915), pp. 436-446
The second common blunder on the list is the presumption that the term “navigable” has only one definition. The U.S. Supreme Court recognizes that several definitions exist and that no single construction is applicable to all circumstances. In United States v. Appalachian Elec. Power Co. 311 U.S. 377; 61 S. Ct. 291; 85 L. Ed. 243 (1940), the court modified its definitions of navigability that previously had been established in The Daniel Ball and The Montello. This court also identified significant differences between definitions affecting title and those concerning regulatory authority: Although navigability to fix ownership of the river bed or riparian rights is determined as the cases just cited in the notes show, as of the formation of the Union in the original states or the admission to statehood of those formed later, navigability, for the purpose of the regulation of commerce, may later arise. An analogy is found in admiralty jurisdiction, which may be extended over places formerly non-navigable.
The legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances and at all times. Our past decisions have taken due account of the changes and complexities in the circumstances of a river. We do not purport now to lay down any single definitive test. This ruling makes clear that, in this instance, the conclusions drawn would apply specifically to the contested stretch of the New River and might not be blindly applied to all rivers in all disputes.
United States v. Appalachian clearly demonstrates that any attempt to apply a “one size fits all” approach (or worse, a simple “yes or no” mindset) to watercourses is oversimplifying, and such generalization is not countenanced by the court.
The third common problem frequently arises when a court or a governing body attempts to use a regulatory definition to determine property rights. To further complicate an already muddy situation, many states recognize several regulatory definitions, depending on the specific situation. The Indiana court notes: The interchangeable terms “navigable” and “navigability” do not have a fixed meaning, and it is important to ascertain the purpose for which the terms are being used. … For instance, the term “navigability” has been used to define four separate and distinct concepts: (1) the delineation of the boundaries of navigational servitudes; (2) the scope of Congress’ regulatory authority under the Commerce Clause; (3) the extent of the authority of the Army Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899; and (4) the limits of jurisdiction of the federal courts conferred by the United States Constitution. Soloman v. Blue Chip Casinos: 772 N.E.2d 515 (2002)
Pennsylvania often has exercised legislative authority to declare specific rivers navigable. One example of this process was an act passed March 14, 1761, to render the Schuylkill River navigable. Another significant Pennsylvania decision considered the effect of subsequent legislation on grants of vacant land bounded by streams considered non-navigable at the time of the grant. Edwards v. Woodruff: 25 Pa. Super. 575 (1904) follows the common law principle that interprets a call to a non-navigable watercourse as passing title to the center of the stream. The effect of subsequent legislation would permit the use of the stream as a public highway but would not affect the underlying fee: although the stream may subsequently to the grant be declared a public highway, that does not divest the property previously acquired by a grant from the commonwealth.
This case illustrates a critical procedural difference between determining ownership and recognizing the right of navigation. In most circumstances, private ownership based on legitimate grants by the state made under established statutory and common law cannot be divested later by an act of legislature that declares a certain river to be navigable.
In this instance, the original state patent was made Sept. 3, 1897, under the authority of the act of July 15, 1897. While this piece of legislation is described by the court as “a rather questionable act” that “died young,” it was in force at the time in Pennsylvania, and it authorized the grant of certain tracts on navigable rivers. Edwards v. Woodruff concludes that: If the title to the land between Stoneycreek street and Stoneycreek river passed from the commonwealth and vested under the warrant and survey of the Charles Campbell tract and the James McLenahan patent, then the act of March 29, 1787, declaring the Conemaugh a public highway, being subsequent to the Campbell warrant and survey, would not divest the right of the owners under said survey warrant and patent to hold the land to the center of the stream, subject of course to the right of navigation after the stream was declared a public highway.
Hood v. Murphy: 231 Ala. 408; 165 So. 219 (1936) reinforces the problems associated with subsequent legislative acts that purport to declare specific river and stream beds property of the state years after the original grants were made: Since all public land in Alabama was ceded to the government by the deed of April, 1802, supra, and non-navigable streams are treated as a part of the public domain, any state legislation which would affect the ownership of such land including the beds of those streams affects the title of the government. This cannot be done … Such legislation cannot therefore affect the title of patentees of the government.
Numerous courts — including the U.S. Supreme Court — have held that, in determining what rivers are navigable for title purposes, it is necessary to examine the condition of the river and the types of watercraft typically in use at the time of statehood. This principle is based in part on the equal footing doctrine, a principle allowing each state — in theory — to exercise the same rights over land within its borders.
An early Indiana decision describes the process by which the historical limits of navigability may be determined: It must follow from this act of congress, that so much of the Wabash river as was in fact navigable in 1804, must be held navigable now, and is to remain a “public highway.” In the Western Gazetteer for 1817, p. 39, the Wabash river was said to be navigable for keel boats for 400 miles from its mouth; and at page 73, it was said that it was navigable for 470 miles. In 1819 there was a reprint of the Gazetteer in Ireland, and at pages 40 and 75 the same statements are made. In the Indiana Gazetteer published in Indianapolis in 1850, at page 21, it was stated that the Wabash river was navigable for 450 miles. State v. Wabash Paper: 21 Ind. App. 172; 51 N.E. 949 (1898).
This concept was reinforced by the U.S. Supreme Court in PPL Montana LLC v. Montana: 132 S. Ct. 1215; 182 L. Ed. 2d 77 (2012): For state title under the equal-footing doctrine, navigability is determined at the time of statehood, see Utah, supra, at 75, 51 S. Ct. 438, 75 L. Ed. 844, and based on the “natural and ordinary condition” of the water…
A starting point for any discussion of the public right to navigate on any water must recognize that the bed of waterway in question will always belong to either the U.S. government, a state government, or some private entity. There is a fundamental similarity between the people’s right to travel over Delaware Bay and their right to travel over a small navigable river. In both of these scenarios, someone else owns the bed of the watercourse.
A useful analogy is to consider the difference — if any — between the public right to travel on a major highway or on a small secondary road. While ownership of the underlying fee for the two types of roads may be in different entities, the right to travel over the designated strip of land remains.
The Indiana court identified several types of navigable watercourses in its earliest decisions. Cox v. State: 3 Blackf. 193 (1833) is one of the first relevant rulings from that state. This decision clearly applies principles from De Jure Maris as basis for its categories: At common law there are two classes of navigable streams,— 1. navigable streams in which the tide ebbs and flows; on these, the rights of the bank owners extend only to high-water mark. The bank below high-water mark, and the whole bed of the stream, belong exclusively to the public. 2. navigable streams where the tide does not ebb and flow; on these, the bank proprietors have right and title to the centre of the stream, as they have in the soil on which a public highway on land runs, but the public have a right of way in the stream, as they have in a public highway on land, and the bank proprietors cannot interfere with that right of way, nor can they obstruct the stream, or divert it from its use as a public highway, nor can they make any use of it inconsistent with the public right of way. This decision also recognizes the analogous nature of the right of navigation and the public right to use roads and highways.
West Virginia was formed from lands that originally were part of Virginia; as a result, some early Virginia statutory and common law is applicable to ownership interests in West Virginia. Despite its origins in a state with no seacoast and a system of waterways composed primarily of smaller streams and rivers, Gaston v. Mace: 33 W. Va. 14; 10 S.E. 60 (1889) identifies several categories of navigable waterways: In the United States there are three classes of navigable streams: (1) Tidal streams, that are held navigable in law, whether navigable in fact or not; (2) those that, although non-tidal, are yet navigable in fact for “boats or lighters,” and susceptible of valuable use for commercial purposes; (3) those streams which, though not navigable for boats or lighters, are floatable, or capable of valuable use in bearing logs or the products of mines, forests and tillage of the country they traverse to mills or markets. By implication, this decision also recognizes the fourth category of streams — those that are too small to provide any reasonable method of transport.
Georgia case law supports the concepts described above and also highlights the tension that can arise between vested property rights and subsequent legislative acts. Young v. Harrison: 6 Ga. 130 (1849) is an early ruling describing a high-stakes dispute that sets private property rights against the power of the state legislature. Quoting the New York ruling People v. Platt, the Georgia court affirms the existence of three types of watercourses: Rivers are of three kinds: 1st. Such as are wholly and absolutely private property. 2d. Such as are private property, subject to the servitude of the public interest, by a passage upon them. The distinguishing test between these two is, whether they are susceptible or not of use for a common passage. Rivers where the tide ebbs and flows, which are called arms of the sea…
A few years later, Georgia adopted the Code of 1863. More than a century after its inception, the courts still were debating the effect of this legislation on private property rights along streams and rivers. This discussion was highlighted in Givens v. Ichauway, Inc.: 268 Ga. 710; 493 S.E.2d 148 (1997), when recreational boaters sought the right to portage around a dam.
Givens claimed that the watercourse — known by the unlikely name Ichauwaynochaway Creek — was navigable under Ga. Code Ann. § 44-8-5(a) (Code of 1863, § 2208). To be considered navigable by this standard, the stream must be “capable of transporting boats loaded with freight in the regular course of trade…” In an unconvincing effort to prove the navigability of the creek: Givens floated through Ichauway’s leasehold on a Styrofoam and wood raft that was four feet wide, sixteen feet long, and drew one foot of water. He loaded the raft with a goat, a bale of cotton, and two passengers, disassembling the raft and portaging around the dam. He argues the goat, cotton, and passengers were freight and his trip showed the creek was capable of use for transporting freight under O.C.G.A. § 44-8-5(a).
Givens argued that his raft was representative of typical commercial craft used in 19th century shipping. As Styrofoam had yet to be invented at that time, it is unsurprising that the court rejected this assertion. He also claimed that historical records and testimony of longtime residents proved that the creek had been used for commercial shipping, but he failed to produce evidence acceptable to the court.