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  I wote my thesis on this subject ,,,
  Posted by: Glenn_MacGrady on Apr-19-13 8:51 PM (EST)
 

... as a graduate fellow at the Harvard Law School in 1975, subsequently published and still cited by courts and commentators.

The general rule has been stated: The public owns the bed of any "navigable" water. Tidal water is presumed to be navigable up to what is called the "mean high tide" line. What "navigable" means for fresh water bodies can, within limits, vary from state to state, and the only way to be positive one way or the other on specific body of fresh water is a definitive court decision.

A little more complexly: The English king is said (erroneously, per my historical research) to have held navigable waters in trust for the public. When America became sovereign, the king's ownership of the beds of navigable waters in America devolved on the federal government. The Supreme Court of the United States developed three "tests" of "navigability" in the 19th century: a test for bed ownership, a test for federal regulation (by the Army Corps of Engineers, for example), and a third test for the jurisdictional reach of federal admiralty courts. These three tests are similar but not identical. Hence a water body theoretically can be navigable for one federal purpose (such as regulation) but not for another (such as bed ownership).

When each state became sovereign, the beds of the federally navigable water bodies -- determined as of the date of statehood -- devolved on the state to be held in trust for public navigation. Therefore, theoretically, any water body navigable under the federal bed ownership test at the time a state entered the union should still be navigable in every state (unless substantially altered by erosion, reliction, avulsion or permanent drying up).

However, each state can have a navigability test that is more liberal or encompassing than the federal bed test. That is, the states are free to have rules that would render a water body navigable even if it would not be navigable under the federal bed test. Some states have, for example, adopted navigability tests such as log flotation or recreational boating. Again, for any given water body, a certain answer can only be obtained by court litigation.

Since there probably will not be a court decision for marginally navigable water bodies -- just using your common sense -- all the practical cautions noted above should be taken: be careful, polite, don't start fights about it with a land owner, don't camp or even walk on the bank unless necessary to portage around rapids or an obstruction.

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