Saturday, March 12, 2011

Navigable creeks, streams, rivers, waterways and the law

In regards to legal navigability of a waterway, for the public :
- they merely have to be used; to be considered navigable.
By court definition: ""a capacity for meeting the needs and necessities of the people""
Historical commercial uses like floating logs downstream during the lumbering era helps of course

The public has rights in navigable water.
Any water which in its natural state, is capable of, and has been used, for the purposes:
a.) commerce
b.) travel
c.) trade
is considered a navigable waterway by the court systems in a large number of cases.
The floating of logs during the lumbering days was held to be an act of commerce.
It also applies to the movement of animal hides for the fur trade via canoe or kayak.
Travel of people, food, supplies, etc. both upstream or downstream counts as well.

While the log floatation test was the old yardstick
by which many "navigability" claims were measured;
-it is "how" modern waterways best serve the public (as historical intent of law)
that allows recreational usage to be considered in the determination of navigability.

The capacity for beneficial public service is paramount towards being deemed navigable.
Courts adopted a rule of "capacity for use to meet public necessity" as the true test.

Entitlement to paddle upon any given waterway involves the "capability of sustaining travel".
Waterways are public paths, expected to be open to travel and other uses.
This public expectation is still valid today in a modern society.

My advice is to avoid confrontation with homeowners by merely saying
"sorry, we'll be gone momentarily - we meant no harm or disrespect -have a nice day"
Yelling at each other over rights, entitlement, etc. is simply non-productive and stressful.
Do not engage, simply keep moving and minimize the time spent at that location.

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