American Whitewater

Virginia Navigability Report

Summary

Virginia law is unkind to recreational boating. The public has no rights in non-navigable streams. Virginia allows the public to navigate (i.e., boat) on navigable streams that are or were used in commercial trade, but seems to apply this test rather strictly. The federal navigation servitude, which allows boating, might allow boating on more rivers in Virginia. Virginia is also an exceptional state in that beds of navigable rivers, even those rivers subject to the federal navigation servitude, can be privately owned, and where privately owned, boaters have fewer rights. There is no evidence that boaters have the right to portage, although portaging is arguably an incident to navigation, and therefore allowed in navigable rivers. Virginia has designated some streams for use by the public. Simply put, Virginia defines navigability through commercial use and public recreational rights in Virginia generally extend to streams that have been used for commercial navigation purposes.

State Test of Navigability

Virginia courts have used, rather strictly, the “navigable in fact” test to determine whether a river is navigable. A river is navigable in fact if it is used or susceptible of being used in its natural condition as a highway for commerce on which trade or travel are or may be conducted in the ordinary modes of travel on water.1) This is very similar to the federal commerce test of navigability.2) It is the capability for use, not the actual extent and manner, that is determinative of the navigability of a watercourse.3) A river was found to be non-navigable, where attempts had been made in the past to float commercial logs down the river but abandoned because the method proved unsatisfactory.4) A federal court has applied the federal commerce test of navigability and found that a river was navigable-in-fact, which the Boerner court, using a test similar to the federal test, had deemed non-navigable.5) The inconsistent results may be explainable by the additional evidence considered by the federal court.6) Thus, the law in Virginia is in a state of uncertainty, and federal court seems to provide the more favorable results when applying tests of navigability. It should be emphasized that the Virginia courts have never specifically ruled that navigation does not include recreation. But to date, the decisions of the Virginia courts have not used the navigability issue in support of public access for recreation.

Extent of Public Rights in Navigable and Non-Navigable Rivers

The public has no rights in non-navigable streams.7) In navigable streams, the public has at least the right of navigation, which includes the right to use the surface.8) Where the beds of the streams are privately owned, the public does not have the right to touch the banks or the bottom, and may not even have the right to fish in such portions of a river.9) This is a problem, because the British Crown granted the beds of navigable rivers to private individuals on some occasions, and these grants have been upheld.10) The English common law, in large part, was adopted in Virginia upon independence and continues to apply.11) Under English common law, the Crown held title to the beds of all tidal waters while the beds of all non-tidal waters were owned by adjoining landowners.12) The ownership of the beds of navigable streams that are non-tidal is an important issue regarding public recreation rights in Virginia due to the substantial number of such streams in Virginia. Several Virginia court decisions indicate that the beds of non-tidal navigable waters are publicly owned, but the issue has not been definitively resolved.13)

However, in streams subject to the federal navigational servitude, fishing would seem to be permissible as an incident to the federal navigational servitude, even if the bottoms were privately owned. Federal law would defeat state law. The other rights incident to the federal navigation servitude would also apply. Therefore, the fact that Virginia limits rights in navigable streams where the bottoms are privately owned creates confusion, because Virginia's test of navigability seems more stringent, or at least no less stringent than the federal test, and the federal navigation servitude will probably exist in all navigable rivers in Virginia. While the scope of the federal navigation servitude is unclear at present, federal law may be friendlier in determining boaters' rights in Virginia.14)

While no mention of portaging is made in the cases, portaging is an incident to navigation. A stronger case for portaging probably exists where the federal navigational servitude exists.

Miscellaneous

The Virginia Scenic Rivers Act was enacted to “preserve and protect [the] natural beauty” of some of Virginia's waterways and to assure their use and enjoyment for scenic and recreational purposes.15) A list of streams recognized under this act is available from the Virginia Commission of Game and Inland Fisheries.

1) Boerner v. McCallister, 197 Va. 169, 89 S.E.2d 23, 27 (Vir. 1955). Ewell v. Lambert, 177 Va. 222, 13 S.E. 2d 333 (1941).
2) Boerner v. McCallister (citing United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940) in support of the navigable in fact test).
3) Loving v. Alexander, 745 F.2d 861, 865 (4th Cir. 1983).
4) Boerner v. McCallister
5) Loving v. Alexander, 745 F.2d 861, 867 (4th Cir. 1983).
6) Id. at 864.
7) , 9) Boerner, 89 S.E.2d 23, 27 (Vir. 1955).
8) Loving, 745 F.2d 861, 867 (4th Cir. 1983).
10) Kraft v. Burr, 476 S.E.2d 715, 719 (1996).
11) Va. Code Ann. sec. 1-10 (1973).
12) See Crenshaw v. Slate River Co., 6 Rand. (27 Va.) 245 (1828), p. 261.
13) See, e.g., Old Dominion Iron and Nail Co. v. C&O Ry. Co., 116 Va. 166, 81 S.E. 108 (1914).
14) Fishing is often thought to be incident to the federal navigation servitude, although federal courts have not definitively answered this question.
15) Va. Code Ann. § 10.1 et seq. (1996).
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