Natural bodies of water are classified as either navigable or non-navigable[i]. Navigable waters embrace all bodies of water public in their nature. According to common law, all waters are divided into either public waters or private waters[ii]. In the former, the proprietorship is in the sovereign and in the latter the proprietorship is in the individual proprietor. The title of the sovereign is in trust for the benefit of the public.
The right of the public to navigate the water is supreme and it includes the right of boating[iii]. Boating for pleasure is considered navigation as well as boating for profit. Also, navigability for pleasure is as sacred in the eye of the law as navigability for other purposes[iv]. The term navigable applies to all the streams that are in fact navigable[v]. In such case, the title of a riparian owner is limited to the bank of the stream.
The specific criteria to be used in determining whether particular bodies of water are deemed navigable for purposes of vesting the state with title to the beds are that bodies of water are navigable and title to the beds under the water are vested in the state if[vi]:
- the bodies of water were used, or were susceptible of being used, as a matter of fact, as highways for commerce;
- such use for commerce was possible under the natural conditions of the body of water;
- commerce was or could have been conducted in the customary modes of trade or travel on water; and
- all of these conditions were satisfied at the time of statehood.
One who operates a boat in waters frequented by other boats is obligated to maintain such a lookout as a reasonably prudent person would exercise to discover and avoid injury to others lawfully using the waters[vii]. The operator is charged with having the knowledge such a lookout would disclose. However, the duty of those in charge of a boat to maintain a lookout is limited to objects on or above the surface of navigable waters.
A state may not restrict or charge for the use of the waters of navigable streams or lakes and an attempt on its part to do so is a deprivation of the citizen of his property[viii]. All persons have a right to use the navigable waters of a state so long as they do not interfere with other citizens’ use. However, the right to use navigable waters is subject to regulation by a state under its police power[ix].
The general public has no rights to the recreational use of a private lake, such rights being exclusive in the owner of the bed[x]. A natural, nonnavigable inland lake is the subject of private ownership and since the bed of such lake is private property, the public has no right to boat upon its waters[xi]. An injunction may be allowed to restrain the unlawful use of such a lake. Similarly, the rule which is applicable to lakes is likewise applicable to ponds artificially created by the damming of a stream.
In the case of a non-navigable lake or pond where the land under the water is owned by others, no riparian rights attach to the property bordering on the water and an attempt to exercise any such rights by invading the water is as much a trespass as an unauthorized entry made upon the dry land of another[xii].
In cases where various parts of the soil under a private lake are owned by different persons and where it does not appear that ownership was based on riparian rights, each owner has exclusive rights to the use of the surface of the water over his land or at least the owner of a larger portion can exclude from it the owner of a small portion[xiii].
The general public cannot acquire boating rights in a private lake by prescription[xiv]. The only way upon which the public may be said to have rights in a lake is by dedication[xv]. Further, the casual use of a lake during a few months each year for boating can not develop into a title to such privileges by prescription[xvi].
[i] State v. Korrer, 127 Minn. 60 (Minn. 1914)
[ii] Baker v. Normanoch Asso., 25 N.J. 407 (N.J. 1957)
[iii] Witke v. State Conservation Com., 244 Iowa 261 (Iowa 1953)
[iv] State v. Korrer, 127 Minn. 60 (Minn. 1914)
[v] State ex rel. Meek v. Hays, 246 Kan. 99 (Kan. 1990)
[vii] Williams v. McSwain, 248 N.C. 13 (N.C. 1958)
[viii] Witke v. State Conservation Com., 244 Iowa 261 (Iowa 1953)
[x] Baker v. Normanoch Asso., 25 N.J. 407 (N.J. 1957)
[xi] Akron Canal & Hydraulic Co. v. Fontaine, 72 Ohio App. 93 (Ohio Ct. App., Summit County 1943)
[xii] Loughran v. Matylewicz, 367 Pa. 593 (Pa. 1951)
[xiii] Wickouski v. Swift, 203 Va. 467 (Va. 1962)
[xiv] Camp Clearwater, Inc. v. Plock, 52 N.J. Super. 583 (Ch.Div. 1958)
[xv] Baker v. Normanoch Asso., 25 N.J. 407 (N.J. 1957)
[xvi] Loughran v. Matylewicz, 367 Pa. 593 (Pa. 1951)