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Hot topic: Is it a “taking” of private property for the public to use rivers?

September 03, 2013
Hot topic: Is it a “taking” of private property for the public to use rivers?

The debate

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.

river with fence and private rock
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.

Comments (8)

  1. John S.:
    Oct 10, 2013 at 03:13 AM

    Thank you for explaining this difficult issue by using court decisions! It's a refreshing point of view!

  2. LC:
    Oct 14, 2013 at 04:50 AM

    While the right of public use of a public waterway is quite clear, I'm not so sure this extends to the banks. I don't think the public has the clear right to land a craft on the bank and occupy it in any way. Do you have some supporting evidence to the contrary?

  3. adminNOR:
    Oct 15, 2013 at 10:13 PM

    Hi LC, thanks for your comment. This is a common question. Rivers that were usable in the past for fur trade canoes or log drives, and are usable today for commercial raft trips or kayak or canoe classes, are navigable for Commerce Clause purposes under federal law. No official designation is needed. On such rivers, private ownership of the beds and banks is “a bare technical title, always subject to public rights to use the stream.”1 Also, rivers are held “as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery.”2 There is a federal public easement for the public to use a river, the bed, and the banks. The easement includes public rights to portage around obstacles, rapids, or waterfalls, to engage in “sport fishing and duck hunting,”3 to walk on the gravel bars and beaches, and to walk above the high water line as needed when walking along the banks of rivers.4
    In a number of states, various segments of the beds and banks of rivers are owned by state or private landowners, but “whether the title to the submerged lands of navigable waters is in the state or in the riparian owners, it was acquired subject to the rights which the public have in the navigation of such waters.”5 State authority on rivers is subject to the “paramount power” of the United States to ensure that rivers remain free to public use.6 Some state legislatures have designated a few rivers as navigable, and the rest as not navigable. These designations determine state or private land ownership along rivers, but they do not affect the federal navigational easement through private land on rivers in that state.
    The basics of the answer to your question are explained in our free handout, which you can see and download at http://www.nationalrivers.org/PDF/RiverLawHandout.pdf
    For a more thorough answer, check out the book, "Public Rights on Rivers." Here is a link to learn more about the book: http://www.nationalrivers.org/why-you-should-get-public-rights-on-rivers.html

    Thanks again for your question!

    1 Bare technical title: Scranton v. Wheeler, 179 U.S. 141 (1900).
    2 To be freely used by all: Martin v. Waddell, 41 U.S. 367 (1842).
    3 Sport fishing and duck hunting: Montana v. United States, 450 U.S. 544 (1981).
    4 Walking along the banks: The Montello, 87 U.S. 430 (1874).
    5 Public rights: Scranton v. Wheeler, 179 U.S. 141 (1900).
    6 Paramount power: Montana v. United States, 450 U.S. 544 (1981).

  4. LC:
    Oct 15, 2013 at 11:33 PM

    "There is a federal public easement for the public to use a river, the bed, and the banks. The easement includes public rights to portage around obstacles, rapids, or waterfalls, to engage in “sport fishing and duck hunting,” to walk on the gravel bars and beaches, and to walk above the high water line as needed when walking along the banks of rivers."

    That's interesting, I'll most certainly look into that one. I'm pretty sure some of the rather gnarly landowners on some our remote rivers wouldn't be too interested, but it's certainly good to know. Thank you for your time.

  5. LC:
    Oct 16, 2013 at 05:19 AM

    While one cannot construct a strong argument against floating down a river, I'm not at all convinced that bank access and possibly contact with the river bed is not trespassing. I notice there are several states cases that remain unresolved in this matter. Re your footnotes:

    Footnote #4 The Montello: I'm seeing "navigable" numerous times, and it appears that the word may be used in the context of commercially navigable. There are also statements of past usage before alteration. It almost sounds like a prescriptive easement rather than a right to use.

    Footnote #3 Montana: This case appears to be specific to tribal rights, and by extension a sovereign nation. I don't see the extension to other rights.

  6. adminVAN:
    Oct 17, 2013 at 07:57 PM

    Dear LC,

    In The Montello and subsequent U.S. Supreme Court decisions, up to modern times, "commerce" includes river uses in the 1800s such as fur trade canoes and transporting logs or sections of logs, and modern uses such as commercial raft and canoe trips. "Commerce" on rivers does not mean just larger boats and barges. This is fully explained in Chapter Three of Public Rights on Rivers.

    Prescriptive easement is one way to confirm public rights under state law, on rivers that have been used by the public for the required number of years. However, Supreme Court decisions have confirmed public rights under federal law, even on rivers with no such record of continuous public use. This is fully explained in Chapter Four.

    Regarding the Supreme Court decision in Montana v. United States, we are aware that various commentators on the Internet tend to see it as an affront to tribal rights. However, if you read the cases that it cites, you realize that it is not saying that state governments and federal agencies can close rivers, but tribal nations cannot. On the contrary, it is saying that public rights on rivers are so basic that EVEN semi-sovereign nations within the United States can't close rivers flowing through their lands. It is consistent with numerous earlier Supreme Court decisions saying that federal agencies, state governments, and private landowners can't close rivers either.

    You are correct that several state court decisions don't approve of public contact with the beds and banks of rivers flowing through private lands. However, on rivers that were usable in the past, and are usable today, as described above, the public easement to use the beds and banks is confirmed by the Supreme Court decisions mentioned above. Under the Supremacy Clause of the Constitution, state court decisions no longer apply, to the extent that they conflict with U.S. Supreme Court decisions, even though they are "still on the books." Under the Constitution, U.S. Supreme Court decisions do not await state by state approval. They already apply, in all fifty states.

    All this becomes much clearer if you read Public Rights on Rivers. Best wishes.

    --Team NOR

  7. Hacklebarney Jimmy:
    Nov 06, 2013 at 10:27 PM

    I am curious to your take on the recent decision in Virginia regarding Kings Grants and these grants abillity to supercede the public's right to recreate on specific rivers. A blurb is below.

    "Virginia law states that navigable streambeds are public and open to Virginia citizens to enjoy, and that land not otherwise conveyed is the property of the state and held in trust for the public’s use and enjoyment. Nevertheless, usage issues are nothing new to the Jackson River. A 1996 case before the Virginia Supreme Court concerned two 18th-century grants from the Crown of England to private citizens; the grants had expressly conveyed the property on both sides of what was to become the Jackson River as well as its streambed and all the privileges therein to these individuals. In its Kraft v. Burr decision, the Virginia Supreme Court held that the British Crown had had the authority to convey such exclusivity to individuals and that those claims now rested with the current riparian owners of the crown grant properties. The section of the river off limits to anglers since the Kraft v Burr decision is highlighted in yellow on state maps posted at public access points along the Jackson River"
    Reprinted from MidCurrent.

  8. adminVAN:
    Nov 23, 2013 at 05:27 PM

    Thanks for your question Hacklebarney Jimmy, our apologies for a delayed response. It is important to keep in mind that courts respond to the arguments presented to them. They don’t independently research and synthesize all law relevant to a case. Consequently, in Kraft v. Burr, the Virginia Supreme Court only responded to the particular arguments made by Kraft’s lawyers. (Kraft was the fisherman and Burr was the riverfront landowner.) Kraft’s lawyers claimed that the King of England did not have the authority, during the mid-1700s, to grant exclusive fishing rights to riverfront landowners. The Virginia Supreme Court disagreed, saying, “We hold that the Crown had the right to grant the bottoms of the river and, therefore, exclusive fishing rights” to riverfront landowners. This is not surprising—kings had a lot of power in the mid-1700s.

    However, public rights on rivers in the United States are determined by the U.S. Supreme Court, not by the kings of England. The U.S. Supreme Court specifically rejected the “crown grants” theory back in 1842, in Martin v. Waddell, saying that rivers are “held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery,” and that granting exclusive fishing rights to riverfront landowners “would be a grievance which never could be long borne by a free people.” The Court again confirmed public fishing rights in 1892, in Illinois Central v. Illinois, saying that the public’s “liberty of fishing” must be maintained “freed from the obstruction or interference of private parties.”

    A number of riverfront landowners in Virginia and neighboring states can trace their ownership back to the British Crown. Likewise, a number of landowners in Louisiana and neighboring states can trace their ownership back to the king of France, and a number of landowners in California and neighboring states can trace their ownership back to the king of Spain. There are thousands of miles of rivers, in locations across the United States, where riverfront landowners can trace their title back to European monarchs, and on which state law still allows private ownership of the river beds and banks, to this day. However, the U.S. Supreme Court specifically reconfirmed the public easement to fish along rivers “regardless of who owns the riverbed” under state law, in Montana v. United States in 1981, which is the most recent U.S. Supreme Court decision on the subject.

    Under the Supremacy Clause of the U.S. Constitution, the U.S. Supreme Court is the supreme court of the land. State court decisions such as Kraft v. Burr cannot deny public rights on rivers that are confirmed by federal law, nor does the Kraft v. Burr decision claim to do so. It confirms that “the Crown had the right to grant the bottoms of the river and, therefore, exclusive fishing rights” back in the mid-1700s, which is historically interesting, but those days are long gone. The “free people” of the United States no longer bow to the despotic powers of European kings.

    Even so, riverfront landowners can still cause expensive legal problems for fishermen and other river users. Therefore we urge river users, in Virginia and elsewhere, to avoid going to court. Further court reconfirmation of public rights is neither necessary nor desirable, since the U.S. Supreme Court is the supreme court of the land, and it has already confirmed public rights repeatedly, in the decisions cited above and others. Instead of going to court, we urge river users to print out the handouts and posters titled “Public Rights on Rivers in the United States” from nationalrivers.org, and post them in supermarkets, community centers, river-related businesses, government offices, and other public places. We also urge river users to read the book Public Rights on Rivers, and follow its suggestions about how to settle river access disputes, whether they are with government agencies, law enforcement officials, or riverfront landowners. Those suggestions are found at the ends of chapters three, four, and five in the book.
    –Team NOR

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