There seems to be a common perception in our area of the country that any body of water, no matter how small, that can accommodate any device capable of transporting a human being - whether it be an inner tube, kayak or bass boat - is a “navigable waterway” and available for anyone to use. This belief usually manifests itself in disputes between those who own land bordering a lake, river or stream and those who wish to use the waterway for their own recreational or commercial purposes.
Resolution of these disputes between riparian landowners (i.e., owners of land bordering a lake, river or stream) and those who want to use those waters for recreational or business purposes turn on whether the waterway under consideration is “navigable.”
Under Tennessee law, if the waterway is “navigable” in the technical legal sense of the word, the waters and the land underlying the waters are deemed to be held by the State in trust for the citizens of the state. As a result, neither the waters nor the lands underlying them are capable of private ownership. Title to the land underneath a navigable waterway belongs to the State and extends from the bed of the navigable waterway to its low-water mark.
If a waterway is not navigable in the true legal sense, then both the waterway and the land underlying the waterway are capable of private ownership. As private land, the banks and the bed of the waterway can be used by the landowner for any purpose for which they are suited. However, that use is not exclusive to the landowner, because the public has an “easement of highway” on the waterway that allows the public to use the waterway for transportation in its natural state.
In order for a waterway to be “navigable” so as to prohibit private ownership of the waterway and the land underlying it, the waterway in its ordinary state must be capable of being both ascended and descended by vessels that are used in the ordinary course of commerce. If the waterway is capable of being navigated by vessels for commercial purposes, then it is a navigable waterway under the law, which means it belongs to the public and cannot be privately owned. On the other hand, if the waterway is navigable only by a kayak, for example, and not capable of being navigated for commercial purposes, it can be privately owned and controlled subject to the public’s easement of highway to use the waterway for transportation.
Tennessee courts have applied these principles in multiple cases over the past 100 years or so. One such case involved the Wolf River in Picket County, Tennessee where a Mr. Miller was indicted, tried and convicted of unlawfully obstructing a navigable stream by maintaining a dam across it. For all but a few months out of the year, Wolf River was only about eight inches deep. However, for a few days each year after heavy rains, the river flooded to such an extent that it could be used to float logs on large rafts at various points some 40 miles above its mouth.
Mr. Miller owned land on both sides of the river and maintained a dam across it to provide water for the operation of his mill. However, he also maintained a “slope” that allowed rafts containing logs to be floated over his dam in a safe way so they could continue their way downstream. Mr. Miller’s conviction for unlawfully obstructing a navigable steam was reversed on appeal after the Court held that Wolf River was not navigable under Tennessee law. The river could not be navigated profitably for commercial purposes due to the fact that it could only be descended (and not ascended) and then only for a few days each year. The land underlying the river therefore belonged to Mr. Elder and he was free to build a dam on it so long as he did not interfere unreasonably with the public’s “easement of highway” over the river.
It is important to point out that the public’s easement of highway over non-navigable waterways is merely a right of “floatage.” The public has a right of passage that can be exercised only so long as it does not unreasonably impair the riparian owner’s use of the waterway. The riparian owner has the right to abridge the public’s right of passage so long as he does not unreasonably interfere with it.
Philp B. Whitaker, Jr. is a shareholder in the Chattanooga office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.