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Hot topic: Is it a “taking” of private property for the public to use rivers?
Saying it is "taking" for the public to kayak, canoe, raft, fish, swim, or recreate on rivers that flow through private property is a popular comment and concern voiced by landowners, concerned parties, or the general public. And if someone thinks they are supposed to have their own private river, it’s understandable to feel this way. If the public is going to use “my river” then there should be just compensation for having my private property taken away. The problem stems from thinking property deeds are what determine public and private rivers. After all, aren't property deeds one of the first things the average person would think of? Well let’s take a step back and look at the history and laws that predate property deeds for a moment and see if that helps clear the water.
Extremely brief history from England
For the brevity of this blog, let’s start our historical examination with England (even though there’s much more history before this point that could also be discussed, which is in the book Public Rights on Rivers). Since many of our American roots come from England, what was the historical English law on rivers? First, a well-known treatise on English common law was prepared about the year 1250, by the legal scholar Henry de Bracton. It affirmed public rights on rivers, citing the Law of Nature (“natural law”) as the source of these public rights, saying, “By natural law these are common to all: running water, air, the sea, and the shores of the sea.” By the 1600s, the legal view in England was that the beds and banks of rivers could be privately owned by the adjacent landowner, yet still be subject to two servitudes, one belonging to the king, and the other belonging to the people in general, thereby allowing public boating and fishing. The law did not see these public rights on private land as being contradictory.
U.S. Law: Rivers navigable in canoes shall be "forever free"
In the very first Act of Congress, Congress addressed the status of rivers in U.S. territory west of the original thirteen colonies, saying, “the navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.” In 1796, in a law governing territory that would become future states, Congress again declared that “all the navigable rivers, creeks, and waters” within the territory “shall be deemed to be and remain public highways.”
It may be difficult to think of rivers as “public highways” in today’s world, with our fancy cars, pickup trucks, and other vehicles that are a more efficient means of transportation. But until a century ago, rivers were an excellent way to travel. You could carry lots of goods without animals to pull your wagon, and without crossing the mountains and other obstacles. Rivers were used back then the way country roads are used today. Though a property owner may “own” the land on both sides of the road, or even the land underneath the road, the public has the right to drive up and down the road, as well as stop for emergencies or to look at a map. As a side note, putting up a fence across a public road would be as illegal as putting a fence across a public river, since it would impede public travel.
Now let’s look at one U.S. Supreme Court case (of which there are many other cases, again for the brevity of the post we will look at one) that affirms using rivers for public good is not a “taking” of private property with Gibson v. United States, 1897. In this case, Mrs. Gibson owned land along the Ohio River, with a dock on the river that was useful at most river levels. As part of a project to make the river more navigable by larger boats and barges, the federal government built a dike that redirected the river, such that Mrs. Gibson’s dock was only usable at infrequent high water periods. This greatly reduced the value of her land. She claimed that this was a “taking” of her property, entitling her to “just compensation” from the government, per the Fifth Amendment of the Constitution. The U.S. Supreme Court replied, “All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various States and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution.” The Court denied compensation to Mrs. Gibson, saying, “The damage resulting from the prosecution of this improvement of a navigable highway, for the public good, was not the result of a taking of appellant’s property, and was merely incidental to the exercise of a servitude to which her property had always been subject.”
This authority of the federal government later became known as the navigational servitude (also called the navigation servitude.)
Private land along rivers is subject to the navigational servitude
An important takeaway from this case is the navigational servitude. There are thousands of places across the nation where rivers flow through private property or are used as property boundaries, so adjacent owners may own to the middle of a river, or all the way across a river. However, private land along rivers that are navigable for Commerce Clause purposes “is always subject to the servitude in respect of navigation.” As the U.S. Supreme Court has explained, “the navigational servitude, which exists by virtue of the commerce clause, expresses the notion that the right of the public to use a waterway supersedes any claim of private ownership.” Private ownership of the bed and banks of such rivers is “a bare technical title, always subject to public rights to use the stream.”
This public right to use private land is an easement, comparable to a utility easement or a rural road easement passing through private land. As the U.S. Supreme Court has confirmed, “The United States retains a navigational easement… regardless of who owns the riverbed,” and this easement includes public rights to engage in “sport fishing and duck hunting.” Other federal court decisions have further confirmed that the navigational servitude does apply on small, shallow rivers, and does include public rights to canoe, kayak, and fish on such rivers.
Consequently, the public right to use small, shallow rivers for such things as canoeing, fly fishing, and whitewater kayaking or rafting, is a permanent public easement confirmed by federal law. These public uses are not trespassing, and government confirmation of these public rights is not a “taking.”
The bottom line: Public use of rivers is not a "taking"
Some lawyers claim that if a court confirms public rights on a river flowing through private land, that would be a “taking” of private property for public use, requiring “just compensation” to the landowner (under the Fifth Amendment to the U.S. Constitution.) However, when a court confirms public rights, it is not saying that the river was previously private and is now public. Instead, it is saying that the river has been public all along, for the reasons discussed earlier, even if other courts or government entities have been denying public rights on that river for the past several decades. Therefore no “taking” of private property is involved, and no compensation is due. Over the years, many landowners and their lawyers have made this “takings” claim, and yet there is no known case in which a landowner received compensation when a court confirmed public rights on a natural river flowing through private land.
Some lawyers claim that confirming public rights on rivers in certain states would be a “change” that should be decided by the state legislature, not by a court. However, Native Americans have been paddling, fishing, and using rivers throughout the United States for thousands of years, and people of other races have been using them for hundreds of years, as discussed earlier. U.S. law has confirmed public rights to kayak, canoe, raft, fish, fowl, and recreate on small, rocky, shallow rivers since early American times. There is no “change” involved.
A barbed-wire fence, and PRIVATE painted on a rock, along the bank of river. Private land along rivers often extends to the middle of the river, but federal law confirms a public easement to navigate and walk along the banks. Public rights are not trespassing, not a taking, and not a change.
To wrap up this topic, think for a moment about Hermosa Beach in California. It is a beach that has beautiful and extremely expensive private property next to the beach and the ocean. There is a boardwalk that goes for many miles where the public can walk, rollerblade, or bicycle. There is a mutual understanding that the private property and non-destructive public recreation coexist together. This is how private property and public recreation on rivers should be viewed. Not as a contradiction, but rather as a parallel system that doesn't “take” away from either party, but simply allows the enjoyment of God’s beautiful nature. So even though some folks might think they have their own private river that no one else can use, historical use and law confirm the rights of the public to use the river, again, in non-destructive ways. “By natural law these are common to all: running water, air, the sea, and the shores of the sea.” –The Law of Nature
Not convinced? Want more information?
For more court decisions, sources, or other information on this topic, check out chapter one and chapter four of the book Public Rights on Rivers. Dozens of cases and facts are clearly outlined and explained.
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