River Laws: Understanding Your Rights And Responsibilities

Rivers are frequently used as boundaries between properties and states. The laws that apply on a river depend on the river's navigability, the state, and whether it is a boundary between two states. In the US, the federal government defines each state's boundary with another state on a case-by-case basis. For example, the Ohio River, which runs through Kentucky, Ohio, Indiana, and Illinois, is owned by Kentucky, with the boundary being the low point of the river's northernmost bank. When a river serves as a boundary between two states, individuals must abide by the laws of both states. However, certain activities on navigable rivers, such as employment law for ship crews and tort liability in collisions, are governed by federal admiralty law rather than state law.

The concept of riparian rights, which originated in English common law, allocates water among landowners along its path. It is recognised in many jurisdictions with a common law heritage, such as Canada, Australia, New Zealand, and eastern US states. Under riparian law, all landowners whose properties adjoin a body of water have the right to reasonable use of it. This includes activities like swimming, boating, and fishing. The specific criteria for determining navigability vary by state but generally consider factors such as the stream's natural conditions, the possibility of conducting commerce, and the customary modes of trade or travel on the water.

In Texas, a stream is considered public if it is navigable in fact or navigable by statute. A navigable stream may be dry for part of the year but does not lose its character as a public stream. The state owns the water of all natural streams and lakes, but this does not grant the public the right to fish or boat in private lakes or streams. Disputes often arise between private landowners and the public regarding access and use of bodies of water on private property.

Navigable vs. non-navigable rivers

A river is considered navigable if it is deep, wide, and calm enough for a water vessel, such as a boat, to pass safely. The specific criteria for determining navigability vary and can include the ability to float logs, the usefulness in commerce, and the capacity for commercial use. In the United States, numerous federal agencies define jurisdiction based on navigable waters, impacting areas such as admiralty jurisdiction, pollution control, and the licensing of dams.

In Texas, for example, a stream is considered navigable if it is "navigable in fact" or "navigable by statute." A navigable stream allows the public to boat, fish, swim, camp, and carry out any other legal activities. On the other hand, a non-navigable stream generally does not provide the public with any right of use, and a private landowner can restrict public entry. However, there are exceptions, such as when the land bordering the stream was granted before a specific date in history, making perennial streams open to public use.

The determination of navigability can have significant implications for public access, property rights, and the regulation of activities on the river. It is important to note that the laws and criteria for navigability may vary from state to state and even between countries. Therefore, it is essential to refer to the specific laws and regulations of the relevant jurisdiction to understand the precise definitions and rights associated with navigable and non-navigable rivers.

The concept of navigability also extends beyond rivers to include other bodies of water, such as lakes and oceans. In these cases, the determination of navigability can similarly impact public access, private property rights, and the jurisdiction of governing bodies.

Public vs. private rivers

Rivers can be classified into two categories: public and private. Public rivers are generally navigable rivers accessible to everyone, mainly for transportation, fishing, and recreational activities. Private rivers, on the other hand, are often non-navigable rivers located on private property, where the landowner may control access and usage.

Public Rivers

Public rivers are those that are navigable and accessible to the general population. A river is typically deemed navigable if it can serve as a highway for commerce. This definition can vary by jurisdiction, but generally, if a river supports or could support commercial operations, it is considered navigable and thus public. The public has the right to access and use navigable rivers for various purposes, including boating, fishing, and swimming. This right is protected by law and ensures that everyone can benefit from these natural resources.

Private Rivers

Private rivers are typically non-navigable rivers located on private property. These are usually smaller waterways that do not support commercial navigation. The landowner generally has the right to control access and use of these waters, subject to local regulations and environmental laws. Landowners with non-navigable rivers on their property often have exclusive rights to these waters, including the right to fish, swim, or divert water for personal use. They also have the right to monetise their water rights by either permanently transferring them or leasing them to another party.

Determining Navigability

The criteria for determining whether a river is navigable vary, but generally include the following:

• The river was or could be used as a highway for commerce.
• Such use was possible under the river's natural conditions.
• Commerce was or could have been conducted using customary modes of trade or travel on water.
• These conditions were met at the time of statehood.

State-Specific Laws

It is important to note that river access laws can vary from state to state within the same country. For example, in the United States, each state has its own unique legal framework and approach to water allocation. While some states, like New Mexico, allow public access to rivers through private property, others, like Colorado, leave river access laws to be decided by court cases.

Rights of passage

The rights of passage on a river depend on several factors, including the river's navigability, ownership, and location. Here is an overview of the rights of passage:

Navigability

A river's navigability plays a crucial role in determining rights of passage. In the context of rivers, navigability refers to a river's capability to facilitate transportation and commerce. This classification is important because it determines the extent of public access and usage rights.

In the United States, navigable waters are considered public highways, and the right of the public to navigate and use these waters for boating and other activities is protected. This includes both commercial and pleasure boating, with the latter being given equal importance in the eyes of the law.

Ownership

The ownership of a river can vary. In some cases, the state or federal government may own the water and the riverbed, especially in the case of navigable waters. In other instances, the river may be privately owned, often by landowners adjacent to the river or those with deeds that include the riverbed.

For example, in Texas, while the state owns the water of all natural streams and lakes, this does not automatically grant the public the right to fish or boat in private lakes or streams. Similarly, in Georgia, the boundary between properties along a non-navigable stream is assumed to be the center or "thread" of the stream, giving each adjacent landowner control over half of the stream.

Location

The location of the river is also a significant factor in determining rights of passage. Rivers that serve as boundaries between states or countries may have unique legal considerations. When rafting or boating on a river that marks a state boundary in the USA, individuals must abide by the laws of both states that the river runs through.

Internationally, rivers that serve as boundaries between countries are governed by international boundary treaties, which determine the specific rights and jurisdiction of each nation.

Other Considerations

Other factors that can impact rights of passage on a river include:

• Riparian Rights: These are the rights of landowners whose properties adjoin a body of water. Riparian rights can include access for swimming, boating, and fishing, as well as the right to reasonable use of the water.
• Local and State Laws: Rights of passage can vary based on local and state laws, which may impose additional regulations on activities such as boating, fishing, and hunting.
• Tidal Areas: Tidal zones and areas affected by tides, such as beaches and marshes, are generally owned by the public and accessible for recreational use.

Property ownership

Firstly, it is important to understand the concept of "riparian rights," which refer to the rights associated with the use of water by property owners whose land borders or contains a body of water. These rights include water consumption, irrigation, industrial uses, and recreational activities. Riparian rights typically apply to property owners with land that borders or contains a pond, lake, stream, or river, including artificial bodies of water such as reservoirs and drainage canals. The key distinction is whether the property "touches" the water, with property rights usually extending up to the boundary of the water and sometimes into the middle of the body of water, especially in the case of running water.

The determination of riparian rights can be complex and is often informed by common law and statutory provisions. In some states, such as Illinois, Indiana, and Wisconsin, riparian rights are recognized for owners of land abutting a river, stream, lake, or pond, with varying degrees of entitlement. For example, in Illinois, a grant of land bounded by a stream typically conveys ownership to the middle of the stream, while Indiana recognizes riparian rights for lakefront owners but limits their entitlement to the middle of the lake.

The navigability of a river also plays a crucial role in property ownership and public access rights. In the United States, natural bodies of water are classified as either navigable or non-navigable. Navigable waters are considered public, with proprietorship vested in the local or federal government, while non-navigable waters are often subject to private ownership and control. The right of the public to navigate and boat on navigable waters is generally protected, and this includes boating for pleasure, which is considered equal to boating for commercial purposes in the eyes of the law. However, it is important to note that the specific criteria for determining navigability may vary across states.

In the case of Texas, for example, a stream is considered public if it is "navigable in fact" or "navigable by statute." A navigable stream retains an average width of 30 feet from the mouth up, and this includes the entire stream bed, not just the area covered by water on a given day. Texas also has a unique history of Spanish and Mexican land grants, which did not distinguish public and private streams based on navigability, instead valuing streams as a source of water for household use and irrigation. As a result, there are some perennial streams in Texas that are public even though they may not be navigable.

In summary, property ownership along rivers involves a complex interplay between common law, statutory provisions, and local variations. Riparian rights play a crucial role in determining the entitlements of property owners whose land borders or contains a body of water, while the navigability of the river also significantly impacts public access rights and the extent of government control.

Fishing rights

In the UK, the Land Registration Act 2002 introduced the right to register fishing rights separately from riverbank ownership. This means that ownership of the riverbank does not automatically grant fishing rights, and these may be owned by another party. When purchasing land that includes a riverbank, it is important to establish whether fishing rights are included or owned separately.

In Scotland, trout fishing rights are generally tied to land ownership, while in England, ownership of fishing rights allows fishing for all species and can be leased or sold separately from the land.

It is important to note that fishing rights come with certain responsibilities, such as maintaining the riverbank and riverbed, controlling invasive vegetation, and ensuring the free flow of water without causing pollution or obstructions.

Frequently asked questions