# Navigable Waters



## jbaugher (Aug 3, 2000)

I need to understand what is meant by "Navigable Waters." Webster defines it as "wide or deep enough for the passage of ships. " So now, I am curious what is a ship. Is a canoe a ship? Is a rubber raft a ship?
The reason for my questions are I have found a land locked piece of state property but there is a river that flows up to it. I am not sure how big the river is. I am planning on putting on a pair of waders and walking to state property. Is there any problem that you see with me doing that? I do not want to trespass.


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## boehr (Jan 31, 2000)

Navigable rivers are utimately detirmined by the court, not the DNR or not a property owner.

this is the best I can do for you;

http://www.michigan.gov/documents/publicrights_22525_7.htm

The bottom line is if the river is not navigable you can not even wade the water without permission. If the river is navagable then you can wade it or float it as a means of transportation or recreation. That's the trick though, detirmining navigability.


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## Huntmaster143 (Aug 28, 2003)

Boehr,

Thanks for that link. I own some property that has a private nonnavigable lake on it and this answered all the questions I have asked many people at the MDEQ (I work closely with them doing environmental remediation) and they could never answer the questions. I had questions regarding another property that touches the waters edge and a public road that passes by the end of the lake and this link solved both.

Thanks again.

HM


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## hypox (Jan 23, 2000)

According to that link there are only 3 rivers and 3 lakes that have been declared Non-Navigable. What about the streams that are not on any of the Navigable or non-navigable rivers? How do you determine if you can fish it then?


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## Huntmaster143 (Aug 28, 2003)

Hypox,

The rivers that are called out in the link are the court cases and a few others. As you know there is no way that you could make a list of all the navigable rivers, streams or lakes.

Following is my understanding of the laws:

1. Access. This seems to be the key point. How did you get to the stream? Your own property, State access or a friends property. If you have accessed the waterway legally then you can fish it.

2. Navigable or not. Once you have access, then the issue of navigability is not that important, because then you have riparian rights and can fish the surface of the stream even if its not navigable. You may fish from within the banks of the stream but you can't hunt the shore without the landowners permission. That's the difference between fish and fowl.

It seems that they are letting the property owners decide whether the water is navigable or not. If access becomes an issue then the land owners will have to go to court to resolve the issue.


I think in todays society, if you can get a canoe or small boat up the stream and have accessed the stream legally, then I would say that you would be OK.

My .02


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## hypox (Jan 23, 2000)

I see where you are comming from, but from what I understand a bridge is a legal access. If that is true then any river, stream, ect. is a navigable waterway, assuming that it goes under a road. And most streams do. I'm just wondering because I fish a stream in NW michigan that was not listed in either catagory. Most of the land there is private but I access it from a bridge and the river follows along the road for about an 80 yard strech. there are 2 houses by the road and I always see a guy at the one place. He is real nice and always talks to me and lets me know if he has seen any "big ones" lurking around. Anyways I have gone quite a distance up stream and fished and always figured I was alright. This makes me wonder now. I'd just like to know for sure. Don't want to break any laws!


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## Huntmaster143 (Aug 28, 2003)

Hypox,

I pulled this off the link and if I'm reading this right you can use the bridge for your access point if the water is navigable. If the stream is non-navigable then I would say you can't use that area as an access site without the landowners permission. 

This does have the little section about prescriptive easements, but I don't think I would want to be arguing with an upset landowner and a CO about prescriptive easements out in the middle of the stream.




L. Highway Access to Public Waters

Some waters are touched or bordered by public roadways, most of which have been established by public use or by easement. Ownership of the land beneath such roadways remains with the private landowner. The public has merely acquired the right to use the land for roadway purposes, but not the right to pick the fruits, nuts, or crops alongside the roadway. These remain the property of the landowner. The courts have held the public has no right to enter a non-navigable lake or stream from a public roadway any more than to enter the orchards or uplands along such roadway.

However, the Michigan Supreme Court in Cass County Park Trustees v Wendt, 361 Mich. 247; 105 NW2d 138 (1960), ruled that whenever a highway actually and in the natural state of things contiguously borders or ends in navigable public waters, the public has a right of access from the highway by land to the highway by water. The court in so ruling did not differentiate between right-of-way owned in fee, granted by easement, or established by user. In fact, the Cass County Park case, where right-of-way was granted by easement, was not quite as simple as in most cases in that the evidence clearly illustrated that there was also a strip of land between the highway and the water's edge. It was established the strip had been used for public purposes, including the launching of boats, swimming, fishing and parking of automobiles, and that such use had been a constant one. Notwithstanding, the court additionally held that the right of public access to bodies of water bordered or skirted by public roads may be lawfully created by long continued use (prescriptive easement) even across such strip of intervening private property.

Hope this Helps.

HM


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## hypox (Jan 23, 2000)

OK.From what I can tell hereYou cannot enter a non-navigable stream from the roadway without the owners permission (obvious). You can enter a navigable stream from a road way. That is fairly obvious also. BUT, what about a stream that has not been declared navigable or non-navigalbe?


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## Huntmaster143 (Aug 28, 2003)

Ok...The best I can do is give you the following which is the definition "Navigable" as outlined in the link.

"B. Navigable Inland Stream:

A navigable inland stream is (1) any stream declared navigable by the Michigan Supreme Court; (2) any stream included within the navigable waters of the United States by the U.S. Army Engineers for administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States; (3) any stream which floated logs during the lumbering days, or a stream of sufficient capacity for the floating of logs in the condition which it generally appears by nature, notwithstanding there may be times when it becomes too dry or shallow for that purpose; (4) any stream having an average flow of approximately 41 cubic feet per second, an average width of some 30 feet, an average depth of about one foot, capacity of floatage during spring seasonal periods of high water limited to loose logs, ties and similar products, used for fishing by the public for an extended period of time, and stocked with fish by the state; (5) any stream which has been or is susceptible to navigation by boats for purposes of commerce or travel; (6) all streams meandered by the General Land Office Survey in the mid 1800's. Moore v Sanborne, 2 Mich. 520 (1853); Thunder Bay River Booming Co. v Speechly, 31 Mich. 335 (1875); Stofflet v Estes, 104 Mich. 208; 62 NW 347 (1895); Cole v Dooley, 137 Mich. 419;100 NW 561 (1904); Sterling v Jackson, 69 Mich. 488; 37 NW 845 (1888); Collins v Gerhardt, 237 Mich. 38; 211 NW 115 (1926); Rushton ex rel Hoffmaster v Taggart, 306 Mich. 432; 11 NW2d 193 (1943); Diana Shooting Club v Husting, 156 Wis. 261; 145 NW 816 (1914); Muench v Public Service Comm., 261 Wis. 492; 55 NW2d 514 (1952); Nekoosa-Edwards Paper Co. v Railroad Comm., 201 Wis. 40; 228 NW 631 (1930); Lamprey v Metcalf, 52 Minn. 181; 53 NW 1139 (1893); Kelley v Hallden, 51 Mich. App. 176; 214 NW2d 856 (1974)."


As it looks now, this is the only definition of what a navigable stream is. I guess you would have to apply this definition to the stream you are referring to and make your decision from that. 

But if you said the landowner seems to be nice, it might not hurt to ask for permission from him to confirm that its OK to be there.

HM


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## bogwalker (Aug 5, 2002)

Hey...I just got rid of a bunch of files on this and I can tell you that in some cases its wierd,like some of the lakes in our area the landownerowns land under the water as in acres and if its navigable,or able to float a log or canoe you CAN fish over it but you CANNOT hunt or trap over it! Kind of crazy huh?


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