Perhaps one of the most divergent areas of boundary law has to do with water boundaries and the riparian rights associated with the ownership of waterfront property. As we have discussed on several occasions, because of the heavy infusion of court decisions, boundary law is about as homogenized as any area of the law can get. However, that is not to say that it has uniform application across all jurisdictions. There are distinctions that have to be made from jurisdiction to jurisdiction. I’m saying this as a cautionary preface to the present discussion on non-navigable lakes. This area of the law seems to be very fractured if not down-right confusing. And relatively speaking, it is not heavily litigated. Nevertheless, I believe this to be an important area to look at as we continue to traverse the law, to aid in our understanding of a very limited and specialized subject.

The Common Law Doctrine

Many, if not the vast majority of the states in the United States adopted the English common law as it would be further modified by the U.S. Constitution, the treaties of the United States, the constitutions of the various states, statues and additional development of the common law through our own court decisions made in the various jurisdictions.1 The common law is simply a system of law that was developed based on court-made decisions and the principle of stare decisis, or precedence established under earlier decisions. The idea being that later decisions on similar matters should follow earlier decisions in order to create stability in the law.

In contrast, the civil law, sometimes referred to as Roman law, is a system of laws originating from the framework of the civil code of the late Roman Empire, as subsequently modified in Europe. At least this is how it has been traditionally described.2

With regard to riparian rights in non-navigable lakes, the discussion often leads to whether the court will apply common law doctrines (what I prefer to call the “common-law rule”), or civil law doctrines (what I prefer to call the “civil-law rule”), to those rights. There is at least one clear distinction between the two rules relative to riparian rights. Under the common-law rule, the owners of lands along a non-navigable lake, may only enjoy the surface waters to the extent of their submerged ownership limits. The civil-law rule works just the opposite. It allows for access to the entire water surface.

Navigability Generally

Just so we can understand what we are talking about relative to navigability, there are two basic types of navigability. There is jurisdictional navigability (vis-à-vis the commerce clause, the federal navigational servitude, admiralty jurisdiction, the clean water act, etc.) and navigability for title purposes. For jurisdictional purposes, almost all water in the United States is navigable, just ask the Federal Environmental Protection Agency (EPA) or the Army Corps of Engineers (ACOE). As far as the EPA is concerned, even dry land can be considered water. These waters are sometimes referred to as the “Waters of the United States.”

The other type of navigability is for title purposes. These are the waters that are “navigable in fact,” or susceptible to use as highways of commerce. A key element of this type of navigability is the natural condition of the waterway and its ability to support navigation at the time of statehood. Many current water bodies are no longer in their natural state having been modified over the years. A purely man-made lake would automatically be considered non-navigable for title purposes because in its natural state it was terra firma. Also, smaller lakes that are isolated from other navigable waters in their natural state will be considered non-navigable, especially when it can be shown that it was once entirely owned by one person or just a few.3

Most states, in particular those states formed out of the public domain, consider all water subject to the ebb and flow of the tide navigable for title purposes. When it comes to waters in rivers and streams above the ebb and flow, the test is generally considered to be navigable in fact at the time of statehood in its natural state. In both cases, the title to the submerged lands will belong to the state.

The Case of Orr v. Mortvedts

The Twedt family developed a rock quarry on land that they owned. When they ceased operation of the quarry the excavated area was approximately 30 acres. Over time, the abandoned quarry filled with water from a spring and local groundwater run-off forming a man-made, non-navigable lake. The Twedt family sold off their land surrounding the quarry, including what had become the lake bottom, in several transactions over a number of years. See Figure 1, captured from the Hamilton County GIS, for a depiction of the lake and the individual ownerships surrounding it.

A boundary dispute erupted between Mortvedt and Orr over the strip of land between the west bank of the lake and Mortvedt’s east boundary on that side of the lake. That dispute led to Orr and the Sevde objecting to Mortvedt’s use of the entire surface water of the lake, claiming Mortvedt only has the right to use that portion of the lake immediately over their submerged boundary line. Eventually Orr, Sevde and Camron all filed suit against Mortvedt to settle the boundary dispute and to adjudicate the legal rights of the owners to the use of the surface waters. Mortvedt filed a counterclaim for, among other things, use of the entire surface water area.4 The trial court ruled against the Mortvedts and they appealed.

On appeal, after discussing some general matters relative to navigability and riparian rights, similar to our discussion above, the Iowa Supreme Court weighed in on the common-law rule:

We have not previously been asked to decide the fighting issue presented by the parties now before the court: Whether the owner of part of the bed of a non-navigable lake has the legal right to use and enjoy the entire lake, or only that part covering the lake bed described in his deed? The authorities on this issue are divided. The majority rule, often referred to as the “common law rule,” dictates that one is entitled to exclusive use and enjoyment of that portion of the non-navigable lake covering the lake bed one owns.5

This was followed immediately by citations from Alabama, Connecticut, Florida, Georgia, Indiana, Mississippi, Pennsylvania, South Carolina, Virginia and West Virginia. So, the court did our work for us; the majority rule in the United States on this issue is the common-law rule. Contrasting the two rules, the court added:

A lesser number of jurisdictions have adopted what has been described as the “civil law rule.” This rule holds that owners of any part of a non-navigable lake are entitled to reasonable use and enjoyment of the entire surface of the lake, not merely that part covering the bed they own.6

The states cited for holding the civil-law rule were Florida, Illinois, Michigan and Washington. Yes, Florida goes both ways. Does this mean these are civil law states? No, it means that on this particular issue they have seen the benefits of the civil-law rule over the common-law rule, where you have neighbors cohabitating a small non-navigable lake. As mentioned above, this is not a heavily litigated issue and was the first time ever in Iowa. On the benefits of the civil law rule, the court commented:

Advocates of the civil law rule claim it is to be preferred because it avoids the difficulties presented by attempts to establish and obey definite property lines. … The civil law rule avoids this problem by granting the owner of part of a non-navigable lake bed access to the entire lake. The rule arguably promotes rather than hinders the recreational use and enjoyment of lakes. Perhaps more importantly, the civil law rule discourages the placement of fences or other barriers along boundary lines in the water that frustrate the cooperative and mutually beneficial use of water resources, and arguably promotes the aesthetic enjoyment of those who use them.7

So why did the court stick with the common-law rule? Stare decisis. Why is Florida on both sides of the issue? In the two cases cited, Florida made a distinction between man-made lakes and natural lakes. Applying the common-law rule to a man-made lake because the creator of the lake bore the entire cost of construction, and the civil-law rule to natural lakes for the same beneficial reasons discussed above.

As this area of the law finds more attention, which I suspect it will when people realize that they can erect the ultimate “spite-fence” along the boundary of land they own in a non-navigable lake, it will be interesting to see if the peace and tranquility of society will over-rule precedence and the negative aspects of the common-law rule, at least as far as this particular issue is concerned.


  1. I have not conducted a thorough study to determine how many states have adopted the common law, but my suspicion based on some research indicates that it would possibly include all of the original colonies that became states and all of the public domain states. I imagine that Louisiana and Texas could be suspects as exceptions. But this is beyond the scope of this discussion.
  2. Not everyone is on-board with this idea. As discussed in this case: “One scholar has noted that the rule commonly referred to as the ‘civil law rule’ was not derived from either the civil law tradition of post-Roman continental Europe or ancient Rome, but rather from decisions of Scottish courts in the nineteenth century, and that the ‘common law rule,’ which pre-dates the English common law, actually originated in Roman civil law. … While we have no quarrel with the author’s historical analysis, we choose to refer to the two rules by the names ascribed to them by other American courts.” I’m sticking with the traditional notion as well.
  3. See Kaiser Aetna v. United States, 444 U.S. 164; 62 L.Ed 332 (1979), United States Supreme Court case where a 523-acre lake contiguous to Maunalua Bay, a navigable bay of the Pacific Ocean, was opened up to the bay and channelized, yet still considered non-navigable for title purposes. The ACOE had navigational jurisdiction but could not open the lake to the general public effecting an unconstitutional “taking” due to the private property interests in the lake bottom.
  4. There were other issues in the case, but we are limiting our discussion to the surface rights.
  5. Orr v. Mortvedt, 735 N.W.2d 610, 616 (Iowa 2007).
  6. Id. at 616-617.
  7. Id. at 617-618. 

Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes 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.