Certain areas of water are owned by the public as a matter of law, such as tidal zones and navigable areas of oceans, bays and rivers. That law is as old as the Republic and, of course, had its basis in the interest of the commonwealth in protecting common access to the ocean and rivers for use and transport.
A typical area of dispute is whether one’s private right to control certain bodies of water…such as streams or lakes on your private property…is superseded by the right of the public. That, in turn, often leads to legal battles over attempts by private parties to limit access or use and conflicts between the Federal government and local government as to regulation of the waters.
This article shall outline the law that pertains to these bodies of water, including rights to exploit and access and the rules of the road that apply to vessels on the waters. The reader should first review our article “Boating Accidents-The Basic Law.”
Laws applicable to water depend on the character of the body of water. Some bodies of water may be subject only to the local state law or even sole private control. Each state has variations on the law and if Federal law does not preempt, be sure to check the local law.
Natural bodies of water are classified as either navigable or non-navigable. State v. Korrer, 127 Minn. 60 (Minn. 1914). Navigable waters embrace all bodies of water public in their nature. According to common law, all waters are divided into either public waters or private waters. Baker v. Normanoch Asso., 25 N.J. 407 (N.J. 1957). In the former, the proprietorship is in the local or federal government and in the latter the proprietorship is in the individual proprietor.
The title of the sovereign is in trust for the benefit of the public. This means that the state must not utilize the water rights for purposes other than the benefit of the public as a whole.
The right of the public to navigate the water is supreme and it includes the right of boating. Witke v. State Conservation Com., 244 Iowa 261 (Iowa 1953). Boating for pleasure is considered navigation with full rights to use equal to boating for profit. That must be emphasized: navigability for pleasure is as sacred in the eye of the law as navigability for other purposes. State v. Korrer, 127 Minn. 60 (Minn. 1914). This is one of the few areas of law in the United States in which use for enjoyment is put on an equal plain as use for profit.
The term navigable applies to all the streams that are in fact navigable. In such case, the title of a riparian owner is limited to the bank of the stream. State ex rel. Meek v. Hays, 246 Kan. 99 (Kan. 1990).
What is Navigable?
The specific criteria to be used in determining whether particular bodies of water are deemed navigable for purposes of vesting the state with title to the beds are that bodies of water are navigable and title to the beds under the water are vested in the state if[vi]:
- the bodies of water were used, or were susceptible of being used, as a matter of fact, as highways for commerce;
- such use for commerce was possible under the natural conditions of the body of water;
- commerce was or could have been conducted in the customary modes of trade or travel on water; and
- all of these conditions were satisfied at the time of statehood.
State ex rel. Meek v. Hays, 246 Kan. 99 (Kan. 1990).
Rights to Use the Water.
It is perhaps ironic that the law that determines the public right to the water depends on commercial possibilities but that pleasure use is then treated as equivalent in rights to use.
A state may not restrict or charge for the use of the waters of navigable streams or lakes and an attempt on its part to do so is a deprivation of the citizen of his property. Williams v. McSwain, 248 N.C. 13 (N.C. 1958)
All persons have a right to use the navigable waters of a state so long as they do not interfere with other citizens’ use. However, the right to use navigable waters is subject to regulation by a state under its police power. Witke v. State Conservation Com., 244 Iowa 261 (Iowa 1953).
But note that the general public has no rights to the recreational use of a private lake, such rights being exclusive in the owner of the bed. Baker v. Normanoch Asso., 25 N.J. 407 (N.J. 1957)
A natural, nonnavigable inland lake is the subject of private ownership and since the bed of such lake is private property, the public has no right to boat upon its waters. An injunction may be allowed to restrain the unlawful use of such a lake. Similarly, the rule which is applicable to lakes is likewise applicable to ponds artificially created by the damming of a stream.
In the case of a non-navigable lake or pond where the land under the water is owned by others, no riparian rights attach to the property bordering on the water and an attempt to exercise any such rights by invading the water is as much a trespass as an unauthorized entry made upon the dry land of another. Loughran v. Matylewicz, 367 Pa. 593 (Pa. 1951).
In cases where various parts of the soil under a private lake are owned by different persons and where it does not appear that ownership was based on riparian rights, each owner has exclusive rights to the use of the surface of the water over his or her land or at least the owner of a larger portion can exclude from it the owner of a small portion. Wickouski v. Swift, 203 Va. 467 (Va. 1962).
The general public cannot acquire boating rights in a private lake by prescription. Camp Clearwater, Inc. v. Plock, 52 N.J. Super. 583 (Ch.Div. 1958). The only way upon which the public may be said to have rights in a lake is by dedication. Baker v. Normanoch Asso., 25 N.J. 407 (N.J. 1957). Further, the casual use of a lake during a few months each year for boating cannot develop into a title to such privileges by prescription. Loughran v. Matylewicz, 367 Pa. 593 (Pa. 1951).
Note however that adverse possession and prescription may create private rights to the body of water depending on state law. The general law applicable to land adverse possession and prescription would apply since this right to the body of water is treated as the right to the land under the water.
Further, recent law in the California courts would seem to be extending the right of the public to gain access to ocean front over the strident protest of a high tech billionaire who sought to close off a path that went from his ocean front property to the admittedly public beach below. The case was going up on appeal when the owner settled with the state, granting rights of access to the beach. It should be noted that California has especially stringent public rights to access to tidal areas and that the beach access had been utilized for many decades.
A client once put it well. As he watched pleasure boats drift down a river that crossed his land, he commented that when one buys a navigable river front, one buys a front on a public highway and that was all. And note that the navigation issue derives from commercial history but now applies equally to pleasure craft.
If you want to “own” the water, then make sure it is not navigable and the bottom is fully on your land. Then make sure no rights have been granted by prescription, adverse possession or the prior owner. Then…you own the lake.