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A private river: Fantasy or reality?

October 10, 2013
A private river: Fantasy or reality?

Is it legal for someone to have a private river? Can someone block or limit public navigation (including kayaking, canoeing, rafting) and fishing on the segment of river that runs through their property? Can a club or landowner charge the public to fish on a river or recreate? These are questions that have been disputed since the 1970s.

The good news: There is an answer supported by facts! Are you willing to take a second look at this issue?

Private land along rivers: The law

Private ownership of land along rivers is “governed by the laws of the several states, subject to the rights granted to the United States by the constitution.” (1) At the time of statehood, a state becomes the owner of the beds of the rivers within the state that are navigable for title purposes (discussed in Chapter Three in Public Rights on Rivers). After statehood, “state law governs subsequent dispositions.” (2) State property law determines whether riparian landowners own to the high water mark, low water mark, or the middle of the river. (3) A state can choose to “confer upon the riparian owners the title to the bed of any navigable stream within her borders.” (4) However, the Court has also held that giving ownership of riverbeds to riparian landowners is “at variance with sound principles of public policy,” and has said, “In our view of the subject, the correct principles were laid down in Martin v. Waddell,” and other decisions confirming that states should retain state ownership of riverbeds, in trust for the public. (5)

In any event, private ownership of the bed and banks of rivers that are physically navigable, for at least part of the year, is “a bare technical title, always subject to public rights to use the stream.” (6) “The right of the public to use a waterway supersedes any claim of private ownership.” (7) Public rights to use rivers are an easement, similar to a utility easement or a rural road easement, “regardless of who owns the riverbed.” (8) States cannot allow private ownership of land along rivers to “substantially impair” public navigation and fishing. (9)

A basic misunderstandingArkansas river

Often, people who move to a river-front property bring an urban mindset with them. In an urban setting, you look at your backyard and see your property extend all the way to your property line, often marked with a fence, and expect that anyone who walks on your property without permission is trespassing. This mentality is wrongfully applied to river-front property. Just because a landowner’s property extends part-way or fully across a river does NOT mean the river is shut off from public use and is only for use as the landowner wishes.

On the contrary, on rivers that are physically navigable, the public has an easement under federal law to kayak, canoe, fish, raft, recreate, and walk along the banks of the river. This includes small rivers with rapids, waterfalls, log-jams, and portages.

The bottom line

Having a private river is a fantasy that is unlawfully promoted by some people. Federal law confirms public rights to navigate on small, shallow, rocky rivers flowing through private land, as long as they are physically navigable for part of the year. The public has had the right to fish, kayak, canoe, raft, fowl, and recreate on rivers since the dawn of human existence. Shutting out the public from recreating and accessing rivers is illegal.

For more information about the history of river uses and river law, and additional cases that relate to this and other important river law questions, refer to the book, Public Rights on Rivers.

Why can you believe NOR literature? 

Footnotes:

Private ownership is “governed by the laws of the several states:” Shively v. Bowlby,152 U.S. 1 (1894).

“State law governs subsequent dispositions:” Oregon v. Corvallis Sand and Gravel Company, 429 U.S. 363 (1977).

High water mark, low water mark, or the middle of the river: Packer v. Bird, 137 U.S. 661 (1891).

“Confer upon the riparian owners:” Donnelly v. United States, 228 U.S. 243 (1913).

Correct principle is state ownership: Barney v. Keokuk, 94 U.S. 324 (1876).

“Bare technical title:” Scranton v. Wheeler, 179 U.S. 141 (1900).

Public right “supersedes any claim of private ownership:” United States v. Cress, 243 U.S. 316 (1917).

Public rights are an easement, “regardless of who owns the riverbed:” Montana v. United States, 450 U.S. 544 (1981).

Private ownership cannot “substantially impair” public navigation and fishing: Illinois Central v. Illinois, 146 U.S. 387 (1892).

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