January 20, 1998
Richard B. Whisnant General Counsel
N. C. Department of Environment and Natural Resources 512 North Salisbury Street Raleigh, North Carolina 27604
RE: Advisory Opinion: Use of navigable-in-fact streams without consent of riparian owners.
Dear Mr. Whisnant:
On August 27, 1997 you requested a formal Attorney General’s Opinion on the following question:
Do all citizens have the right to travel by boat down the course of North Carolina streams that are navigable in fact by canoe or kayak, without the consent of riparian property owners?
We agreed that the answer to your question should be delayed, pending final resolution of litigation involving the Department of Environment and Natural Resources ("Department" or "DENR"), in which the issue was raised. As you are aware, those five consolidated cases (Wainwright, et al v. State of North Carolina, et al, New Hanover Co., 91 CVS 640, 816, 1117, 1790) involved whether certain inter-tidal salt marshes in New Hanover County were navigablein-fact, so as to be subject to public trust rights. Following the State prevailing in that matter, we discussed whether a formal opinion or an advisory opinion would be the more appropriate response. We advised you that the issuance of an advisory opinion would be preferred, as it was more consistent with the opinion policy of this Office. Having heard nothing further from you, and being aware that you will soon be leaving State service, we provide you with the following advisory opinion.
The answer to your question may be summarized as follows:
Yes. Citizens have the right to travel by "useful vessels" such as canoes and kayaks, "in the usual and ordinary mode" on waters which are in their natural condition capable of such use, without the consent of the owners of the shore.
Under the public trust doctrine, as applied in North Carolina, citizens have the right to use the state’s navigable waters for the exercise of public trust rights, without the consent of riparian owners, i.e., the owners of the land adjacent to those waters. Public trust rights are defined by common law, and "include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State’s ocean and estuarine beaches and public access to the beaches." N.C.G.S. § 1
45.1.
North Carolina follows the modern "pleasure craft test" in determining whether waters are navigable-in-fact, and therefore subject to public trust rights. In Gwathmey v. State of North Carolina, 342 N.C. 287, 464 S.E.2d 674, 679 (1995), the North Carolina Supreme Court set forth the law of this State governing application of the public trust doctrine to navigable waters. Chief Justice Mitchell, writing for the unanimous Court, explained:
The controlling law of navigability as it relates to the public trust doctrine in North Carolina is as follows: " ‘If water is navigable for pleasure boating it must be regarded as navigable water, though no craft has ever been put upon it for the purpose of trade or agriculture. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation.’ " Id. at 608-09, 48 S.E. at 588 (quoting Attorney General v. Woods, 108 Mass. 436, 440 (1871)). In other words, if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has not been used for such purpose. Lands lying beneath such waters that are navigable in law are the subject of the public trust doctrine. 342 N.C. at 301, 464 S.E.2d at 682.
The Court concluded that "navigability in fact by useful vessels, including small craft used for pleasure, constitutes navigability in law." (Emphasis supplied.) Gwathmey, 342 N.C. at 300, 464 S.E.2d at 681, citing State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411 (1888). "The capability of being used for purposes of trade and travel in the usual and ordinary modes is the test, and not the extent and manner of such use." Gwathmey, 342 N.C. at 300, 464 S.E.2d at 681, quoting State v. Twiford, 136 N.C. 603, 606, 48 S.E. 586, 587 (1904). Further, "the public have the right to the unobstructed navigation as a public highway for all purposes of pleasure or profit, of all watercourses, whether tidal or inland, that are in their natural condition capable of such use." Gwathmey, 342 N.C. at 300, 464 S.E.2d at 681, quoting State v. Baum, 128 N.C. 600, 604, 38 S.E. 900, 901 (1901).
Over a century ago, in State v. Narrows Island Club, a case cited with approval in Gwathmey, the Supreme Court found "battery boats, flat-boats and skiffs, drawing from eight to eighteen inches of water" to be "useful vessels." 100 N.C. at 479. Although the Gwathmey Court did not specify what types of vessels it meant by the phrase "useful vessels, including small craft used for pleasure," in our opinion canoes, kayaks, and similar small recreational craft are clearly included within the meaning of those terms. This is the modern trend followed in other jurisdictions which, like North Carolina, apply the "pleasure craft test" for determining navigability. In Swan Island Hunt Club v. White, 114 F. Supp. 95, 97 (E.D.N.C. 1953), aff’d sub nom., Swan Island Club v. Yarborough, 209 F.2d 698 (4th Cir. 1954), the federal District Court found waters "over shoal lands, even though not useable for navigation by sea vessels or any crafts other than those with flat bottoms, and even though at low tide some of the land thereunder may not be entirely covered by water. . .are navigable waters under the prevailing modern view."
A separate line of cases known as the "floatability" cases supports this conclusion. See Monica Kivel Kalo and Joseph J. Kalo, Battle to Preserve North Carolina’s Estuarine Marshes: The 1985 Legislation, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust, 64 N.C. L. Rev. 565, at 581, n. 108. (1986). Those cases were not disturbed by Gwathmey, and are consistent with its holding. That line of cases found that streams, which become navigable for the floating of logs only during the spring freshets or on a seasonal basis, are subject to an easement in the public for that purpose. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 733-34, 21 S.E. 941, 942 (1895); Gwaltney v. Scottish Carolina Timber & Land Co., 111 N.C. 547, 553-60, 16 S.E. 692, 693-94 (1892); McLaughlin v. Hope Mills Mfg. Co., 103 N.C. 100, 9 S.E. 307 (1889). The Supreme Court applied the same principle to the upper White Oak River, which was navigable for floating logs, except in the summer, when the waters fell. State v. White Oak River Corp., 111 N.C. 661, 16 S.E.2d 331 (1892).
Thus, citizens have the right to travel by "useful vessels" such as canoes and kayaks, "in the usual and ordinary mode" on waters which are in their natural condition capable of such use. The owner of land adjoining a watercourse has no right to control or interfere with public travel by boat down streams which are navigable in fact. State v. Twiford, 136 N.C. 603, 606-7, 48 S.E. 586-7 (1904). Even so, this does not afford the right to trespass on the shore. The Supreme Court has stated the rule as follows:
However, the right of navigation gives no license to go and come through and over the riparian owner’s land without "let or hindrance." Similarly, those navigating a river have no right, as incident to the right of navigation, to land upon and use the bank at a place other than a public landing without the consent of the owner, for the banks of a navigable stream are private property.
Gaither v. Albemarle Hospital, 235 N.C. 431, 444, 70 S.E.2d 680 (1952) (Citation omitted.)
It is not possible to say with confidence how far up a watercourse public rights may extend. At some point, navigability "in the usual and ordinary course" ceases, and public trust rights give way to those of private property. As the Supreme Court noted in State v. Baum, "[w]e are not prepared to say that a land owner would be liable to criminal prosecution because he happened to put a watergate across a creek up which otherwise an idle hunter might be able to pole a canoe. . ." 128 N.C. at 604. Finally, it should be noted that the State may properly exercise its police power to regulate the use of navigable-in-fact waters, to protect the public health, safety, or welfare.
Thank you for your inquiry. Please advise if we may be of further assistance.
signed by:
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General