American Whitewater

Rhode Island Navigability Report

Summary

In Rhode Island, the rights of fishery, commerce, and navigation exist in the public waters.1).

Public waters consist of waters below the high-water mark.2) Rhode Island abides by the public trust doctrine wherein the state holds title to the land below the high-water mark in trust for the benefit of the public.3)

In addition, should questions exist that are unanswered by Rhode Island case law, it is likely permissible to follow the analogous federal law or Massachusetts or Maine laws. Rhode Island case law has consistently and approvingly cited to the federal laws regarding the public trust doctrine4) and has cited both Massachusetts and Maine case law.5)

State Test of Navigability

According to Rhode Island case law, the rights of the public in the waterways of the state extend to lands below the high-water mark.6) Rhode Island does not appear to condition navigability upon recreational or commercial use. Instead, Rhode Island grants use of its waters using this boundary classification and the public trust doctrine.

For the purposes of determining public privileges, case law has interpreted the landward boundary of the shore to be the mean-high water mark, or mean high-tide, as the arithmetic average of the high water heights observed over an 18.6-year Metonic cycle, not simply the high-water mark at any moment.7)

Rhode Island's use of public trust concepts in determining the rights of the public in the waterways of the state stems from Rhode Island common law.8)

Case law has consistently affirmed that ownership of the streambeds of Rhode Island are judged by the public trust doctrine, wherein the state holds title to the land below the high-water mark in trust, for the benefit of the public.9) Public waters consist of waters below the high-water mark,10) wherein the high-water mark is the arithmetic average of the high water heights observed over an 18.6-year Metonic cycle, and is not simply the high-water mark at any moment.11)

Case law has further established that the riparian owners of the streamside lands have certain exclusive rights to the shore between the high and low water mark and may modify the streambeds so long as navigation is not impeded or a nuisance created thereby.12)

Extent of Public Rights in Navigable and Non-Navigable Rivers

The public, through the state, owns the land below the high water mark. The public's rights in these public waters include the rights of “fishery, commerce, and navigation.”13) Additionally, courts have held that ”[i]n absence of any express restriction, any inhabitant may take shellfish anywhere in the waters of the state, and on the shores below high-water mark as it exists from time to time.”14)

It is unclear what rights the public has in purely private waterways.

One court has stated that the public rights of passage, navigation, and fishery exist in the public waterways unless the waterways have been “built upon, or occupied as to prevent the passage of boats and the natural ebb and flow of the tide.”15)

Although the public retains the rights for passage in the space between the high and low water marks, case law indicates that “the riparian owner has a right of access to the great highway of nations, of which he cannot be deprived.”16) However, it is unclear what would constitute a deprivation of this right.

Additionally, criminal trespass law “prohibits person from knowingly entering upon land of another without having been requested or invited to do so by owner or occupant of land.”17) According to case law, municipalities attempting to impose criminal penalties for trespass on waterfront properties “must prove beyond a reasonable doubt that the defendant knew the location of the boundary line and intentionally trespassed across it.”18)

Miscellaneous

Streamside landowners have the “right to build wharves and to fill up the upland . . . provided navigation is not impeded.”19)

Moreover, unless authorized by the general assembly or the department of environmental management, ”[e]very erection made into or encroachment upon the public tidewaters of the state . . . shall be deemed to be a public nuisance and shall be prosecuted by the attorney general.”20) Failure to remove the obstruction after receiving notice shall result in a fine of $100 per day until the obstruction is removed.21)

The Rhode Island Rivers Council website provides useful information regarding rivers and waterways of the state, including bacterial levels in the water or any toxic pollutant threats from nearby land uses.22) The Council provides an extensive list of rivers and lakes, discussing the suitability for recreational uses.23) The Rhode Island Rivers Council was created pursuant to the General Laws of Rhode Island to “improve and preserve the quality of rivers and to develop plans to increase the utilization of river areas throughout the state.”24)

1) Champlain’s Realty Assoc. v. Tillson, 823 A.2d 1162, 1165 (R.I. 2003) (citing Greater Providence Chamber of Commerce v. State of Rhode Island, 657 A.2d 1038, 1041 (R.I. 1995
2) See Champlain, 823 A.2d at 1165.
3) , 18) Id.
4) Greater Providence Chamber of Commerce, 657 A.2d at 1042.
5) See Allen v. Allen, 32 A. 166, 166 (R.I. 1895).
6) , 13) Champlain, 823 A.2d at 1165.
7) State v. Ibbison, 448 A.2d 728, 730 (R.I. 1982).
8) See Allen, 32 A. at 166 (1895).
9) Id.; see Champlain, 823 A.2d at 1165.
10) See id.
11) Ibbison, 448 A.2d at 730.
12) , 19) Allen, 32 A. at 166.
14) Allen, 32 A. at 167.
15) Rhode Island Motor Co. v. City of Providence, 55 A. 696, 697 (R.I. 1903).
16) Id.
17) See State v. Ibbison, 448 A.2d 728, 733 (R.I. 1982).
20) R.I. Gen. Laws § 46-6-3 (2006); see Rhode Island Motor Co., 55 A. at 697.
21) R.I. Gen. Laws § 46-6-9 (2006).
22) See http://www.ririvers.org/index.htm.
23) See “Rivers Classifications,” Part 162-03 at http://www.planning.state.ri.us/rivers/162-03.pdf.
24) R.I. Gen. Laws § 46-28-4 (2006).
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