Trespassing on Navigable Waterways

Discussion in 'Community Forum' started by ptbrauch, Sep 4, 2019.

  1. ptbrauch

    ptbrauch 12 pointer

    10,381
    779
    Nov 10, 2004
    The OC
    I know this topic comes up periodically on here and I've seen it discussed in some paddling groups I'm involved with. After having just researched it, I figured I'd post up some sources on the subject that I found.
     
  2. ptbrauch

    ptbrauch 12 pointer

    10,381
    779
    Nov 10, 2004
    The OC
    Here's one that discusses it nationally, gives some history on the topic, and I think most importantly, cites the actual court cases:

    https://www.americanwhitewater.org/..._MngB3RaQGhm5yRBZf7MdFUxPEMKJoYA6vdwJCJG5f8vY

    One thing to take away from this article is this: The Submerged Lands Act holds that each State owned the land beneath the navigable waters of that State. (43 U.S.C. §§ 1301-15 (2002)).

    I've seen people try to make the argument that the federal definition of navigable water supersedes the state definition and therefore, you can camp and walk on all navigable water stream beds.
     
  3. ptbrauch

    ptbrauch 12 pointer

    10,381
    779
    Nov 10, 2004
    The OC
    And this one is specifically for Kentucky:

    https://www.americanwhitewater.org/content/Wiki/access:ky?

    The main takeaway from this is:

    A non-navigable stream is the private property of the owners of the adjoining lands and cannot be taken for public use without just compensation.11) The riparian owners of land on a stream that is navigable are owners to the center of the stream or river up to the high-water mark.12) However, the public can use navigable streams for recreational purposes, including the stream bottoms,13) despite the fact that streambeds of navigable rivers are owned by the adjacent riparian landowner.14) Ownership rights of riparian landowners is subordinate to the public's right to use navigable waters.15) The public right of navigation also includes the right of temporary anchorage.16)

    There are no specific cases that address the existence of a right to portage in Kentucky. However, the courts do provide for the right of “incidental use of the riverbed.”17) One could argue that the right to portage is akin to the right of incidental use of the riverbed, but the facts of the cases in Kentucky that address incidental use suggest otherwise. The courts addressing incidental use focus on the use of the riverbeds to help with the floating of logs down a stream that may get caught up or run up onto a riverbed.18) These courts have held that a person can go up on the banks of a stream when it is necessary in driving logs down a stream.19) Therefore, while incidental use is allowed, the courts only apply it to the facts of driving a log down a stream. Under these facts, one would conclude that Kentucky law does not provide for the right to portage.
     
    JR in KY likes this.
  4. ptbrauch

    ptbrauch 12 pointer

    10,381
    779
    Nov 10, 2004
    The OC
    And here's one judge's opinion on the topic:

    Public dominion of Kentucky waterways
    • Circuit Judge David Tapp
    • Mar 6, 2006

    The right of the public to access Kentucky waterways is historically guaranteed and crucial to the continued use and enjoyment by future generations. From time-to-time, groups or private entities seek to restrict the availability of waters in contravention of public interests.

    The “public trust doctrine” arose from the English common law concept that lands flowed by tidal waters were held by the King for the benefit of the nation. During the formation of the United States, title to soils under tide waters were reserved to the states where they were located. Courts called upon to interpret these common law notions have repeatedly held that the states, upon entry into the Union, received ownership of all land under waters subject to the ebb and flow of the tide.

    As the United States developed, so to did the concept of the public trust doctrine develop. By the later mid-1800s, courts came to recognize as “the settled law of this country” that the lands under navigable freshwater lakes and rivers were within the public trust given to the states.

    The concept underlying this doctrine is that the states bears the responsibility of preserving the historical right of the public to navigation upon the waterways within its own geographical borders.

    In Kentucky, like most other states, courts have held that while landowners may own to the middle (“the thread”) of a particular stream or title to adjacent lake shores, those riparian rights are subordinate to the public’s right to the use of navigable waters.

    A 1985 Kentucky case determined that the “public right of navigation” includes travel upon the waterways but also the “right to use the public waterways for recreational purposes such as boating, swimming and fishing.”

    Other states courts have specifically held that the public may fish in public waters without committing a trespass upon adjoining land or the land underlying the waterway, though they my not be entitled to cross upon privately held lands to gain access to the public waters. Moreover, Kentucky courts have recognized that the right of navigation for commercial or recreational purposes may include the right to temporary anchorage and incidental uses of the riverbed.

    While almost any lake of any size may be considered navigable, the issue of determining which streams are navigable is less easily ascertained. Courts generally look to the current or historical use of the waterway to determine if it serves some commonly useful purpose of trade or commerce. When approaching the issue of navigability from a historical perspective, it is ofttimes surprising the breadth of commerce which has been carried upon relatively minor flows. The Rockcastle River, for example, has been specifically declared to be navigable by one Kentucky court.

    Kentucky has nearly 700 square miles of waters excluding ponds of less than 40 acres and streams less than one-eighth mile wide. According to Ed Councill of the Kentucky Outdoor Center, as measured by streambank miles, Kentucky is blessed with nearly 18,000 miles of waterways — second only to Alaska — which can be accessed by at least some sort of paddleable craft.

    Given the interest of Kentuckians in recreational fishing and boating, and the commercial benefit that out-of-state visitors to our waters bring to Kentucky’s economy, courts will no doubt continue to confront challenges to the public’s historical right of access to navigable waters.

    https://www.somerset-kentucky.com/o...cle_2c4502cd-1a5b-5402-93a1-0e1b16918b0b.html
     
    Genesis 27:3 likes this.
  5. Marsh CallUser

    Marsh CallUser 12 pointer

    3,593
    2,155
    May 20, 2011
    Bowling Green, KY
    This was heavily discussed in the waterfowl forum. Look it up.
     
  6. EdLongshanks

    EdLongshanks 12 pointer

    10,499
    5,760
    Nov 16, 2013
    Northern Kentucky
    15) The public right of navigation also includes the right of temporary anchorage.16)


    Listening to the ky afield podcast, they disagree. They made it seem like if your boat, person, or anchor touches the bottom....you are trespassing
     
  7. KYBOY

    KYBOY 12 pointer

    7,809
    1,160
    Apr 21, 2005
    Floyd,co..Kentucky
    I listened to that podcast. They kinda contradicted themselves a few times..
    They did mention that a flooded property is considered navigable water too
     
  8. ojibwa62

    ojibwa62 12 pointer

    9,346
    5,209
    Jul 1, 2018
    NOTW
    When I was selling real estate in GA we had to deal with Raperian rights often. Down there it was easy, if you could wade across property line was center of the Creek or river, if you could not property line was the bank. On a lake property stopped at the water , if the lake went down you gained land if it rose you lost land. They tossed a few other variables in but overall it wasn't complicated.
     
  9. EdLongshanks

    EdLongshanks 12 pointer

    10,499
    5,760
    Nov 16, 2013
    Northern Kentucky
    ....but if you touch the bottom with an anchor, foot, or decoy tether you are trespassing
     
    ojibwa62 likes this.
  10. Brit's and Birds

    Brit's and Birds 8 pointer

    936
    249
    Nov 24, 2008
    Oldham County
    .12) However, the public can use navigable streams for recreational purposes, including the stream bottoms,

    A 1985 Kentucky case determined that the “public right of navigation” includes travel upon the waterways but also the “right to use the public waterways for recreational purposes such as boating, swimming and fishing.”

    I think those are pretty clear. So long as you enter the water from public ground or from ground you have permission to be on, you can go wherever in the stream you want, including touching the bottom. You just cannot exit the water onto private property without trespassing. But I'm sure many will continue to argue.
     
  11. EdLongshanks

    EdLongshanks 12 pointer

    10,499
    5,760
    Nov 16, 2013
    Northern Kentucky
    I’m just telling you what the kdfw spokespeople were saying. Not arguing.
     

Share This Page

  1. This site uses cookies to help personalise content, tailor your experience and to keep you logged in if you register.
    By continuing to use this site, you are consenting to our use of cookies.
    Dismiss Notice