American Whitewater

Connecticut Navigability Report

Summary

In Connecticut, the public has the right to boat, hunt, and fish in navigable waters.1) Even in non-navigable waters, the public still retains the right to pass or repass upon the waters with any watercraft.2) Navigable waters are those waters which are subject to the ebb and flow of the tide;3) however, more recent case law has also imposed the additional requirement that the waterway is used for some useful or valuable purpose such as commerce.4)

State Test of Navigability

Early case law established that the navigable waters include waters “where the sea ebbs and flows.”5) Thus, navigable waters consist of those waters between the mean-high and mean-low water marks where the tide ebbs and flows.6) Additionally, the General Statutes of Connecticut define “navigable waters” as “waters which are subject to the ebb and flow of the tide shoreward to their mean high-water mark.”7) Also included in public waters are “navigable waterways,” which are defined as “waters which are physically capable of supporting waterborne traffic, and subject to the ebb and flow of the tide.”8)

More recent case law, however, has imposed additional requirements upon the test for navigability. In one case, the court required that the “water [be] navigable for some useful or valuable purpose,”9) stating that ”[t]here must be some commerce or navigation which is essentially valuable.”10) The court emphasized that ”[a] hunter or fisherman, by drawing his boat through the waters of a brook or shallow creek, does not create navigation.”11)

On a separate occasion, in a suit against a public utility company, the court followed the federal test for navigability requiring that navigability of a river entail it “being used 'or is susceptible of being used, in its natural and ordinary condition as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.'”12).

The test for navigability is applied on a case-by-case basis: ”[W]hat waters are navigable is a question of fact.”13) The courts do not appear to have imposed actual use requirements. On the contrary, the language of the valuable purpose and commercial use test supports the notion that capability of use for commerce is sufficient. This test states that a river is navigable if it is “being used 'or is susceptible of being used . . . as a highway for commerce . . .'”14)

Relevant considerations taken by courts have included any acts of authority by the federal government, which would tend to support the waterway's navigability because “acts of authority of the national government over [a] river, [can] only be exercised lawfully over a navigable river.”15) Historical usage of the waterway is relevant as well.16) Additionally, the fact that the waterway “has not been recently used for the passage of boats” or that the waterway requires “some dredging to make it generally available for use for boats of a light draught, does not, . . . make the river lose its character as a navigable stream.”17)

Connecticut's tidal ebb and flow test for navigability stems from English common law,18) which has been codified into the statutory definitions of “navigable waters” and “navigable waterways.”19)

Connecticut's valuable purpose and commercial use test is based on case law.20)

Case law has established that the public, through the state, owns the soil between the low and high water marks.21) In an older case, however, the court held that the streambeds of navigable waters are owned by state.22)

Case law has further established that the riparian owners of the streamside lands have certain exclusive rights in the streambeds and may modify the streambeds so long as navigation is not interfered with or obstructed.23)

The trial court held that the Blackhall River and Back River are navigable tidal streams in Delinks v. McGowan.24)

The appellate court conceded that the Saugatuck River is a navigable waterway where the tide ebbs and flows in State v. Brennan.25)

The trial court held that the Park River is a navigable river in Edward Balf Co. v. Hartford Electric Light Co.26)

Extent of Public Rights in Navigable and Non-Navigable Rivers

The public, through the state, owns the land between the high and low water marks. The public's rights in navigable waters include the rights of “fishing, boating, hunting, bathing, taking shellfish, gathering seaweed, cutting sedge, and of passing and repassing . . . .”27)

In non-navigable waters, the public retains the right to freely navigate the waters with any watercraft.28) Specifically, the public has a “right or easement in such rivers, as common highways, for passing and repassing with vessels, boats, or any watercraft.”29)

However, even though the public owns the land between the high and low water marks, streamside owners still retain certain exclusive rights. Owners of adjoining upland have privileges such as digging out channels, building wharves, and erecting piers so that they may exercise their right to access the adjoining upland.30) The only right that is paramount to these exclusive rights of the streamside owners is the public's right to navigation. Thus, the streamside owners may exercise their rights to access the navigable and non-navigable waters so long as public navigation is not interfered with or obstructed.31)

Case law makes no mention of the right to portage. However, the Connecticut Attorney General has opined that in addition to the public's right to pass upon non-navigable waters (private property), a member of the public who “uses the tidal waters for hunting, fishing or other recreational uses [is not] trespassing upon private property so long as there is no physical touching of that privately-owned underlying soil.”32) Moreover, since the ownership of the soil landward of the high water mark is generally not owned by the state,33) portage overland would likely constitute trespass.

Despite the existence of a public easement for navigation in non-navigable waters, streamside landowners have the exclusive right of fishery in the adjacent non-navigable waters which comprise waters where the tide does not ebb and flow.34)

Additionally, a person commits a misdemeanor and is guilty of criminal trespass in the third degree when he knowingly enters on private land that is fenced or posted against trespass, or where he knowingly enters and remains for the purpose of hunting, trapping, or fishing.35)

Miscellaneous

There is a general prohibition against the obstruction of free navigation in both navigable and non-navigable waters.36) Placing or causing “any marker, raft, dockslip, ski jump or similar structure upon the state's waters so as to create an obstruction or menace to navigation or a hindrance to the public use of such waters,” is prohibited.37) The owner may be ordered to dismantle or remove the structure or take other measures to eliminate the danger.38)

Additionally, unless there is a legal right or permission of the person having title to the land on which the obstruction has been erected, obstructions upon lands bordering navigable waters are prohibited.39)

1) State v. Brennan, 216 A.2d 294, 296 (Conn. Cir. Ct. 1965).
2) Adams v. Pease, 2 Conn. 481, 1818 WL 20, at *2 (Conn. 1818).
3) Conn. Gen. Stat. § 15-3a(b); Id. § 15-3a© (2005).
4) Towns of Wethersfield and Glastenbury v. Humphrey, 20 Conn. 218, 1850 WL 664, at *6 (Conn. 1850); see Edward Balf Co. v. Hartford Elec. Light Co., 138 A. 122, 125 (Conn. 1927).
5) Adams, 2 Conn. 481, 1818 WL 20, at *2; see Shorehaven Golf Club, Inc. v. Water Res. Comm’n, 153 A.2d 444, 446-47 (Conn. 1959).
6) See Rochester v. Barney, 169 A. 45, 47 (Conn. 1933).
7) Conn. Gen. Stat. § 15-3a(b).
8) Id. § 15-3a©.
9) Towns of Wethersfield and Glastenbury, 20 Conn. 218, 1850 WL 664, at *6.
10) Id. at *7.
11) , 29) , 31) , 33) , 38) Id.
12) Edward Balf Co., 138 A. at 125-26 (quoting Oklahoma v. Texas, 258 U.S. 574, 586 (1922); Nies v. Conn. River Bridge & Highway District, 132 A. 873 (Conn. 1926
13) Town of Orange v. Resnick, 109 A. 864, 866 (Conn. 1920).
14) Edward Balf Co., 138 A. at, 125-26 (quoting Oklahoma v. Texas, 258 U.S. 574, 586 (1922); Nies, 132 A. 873)(emphasis added).
15) Id. at 125.
16) , 17) Id. at 126.
18) See Adams, 2 Conn. 481, 1818 WL 20, at *2; Chapman v. Kimball, 9 Conn. 38, 1818 WL 20, at *2 (Conn. 1831); Enfield Toll Bridge Co. v. Harford and New-Haven R.R. Co., 17 Conn. 40, 1845 WL 431, at *15 (Conn. 1845).
19) See Conn. Gen. Stat. § 15-3a(b); Id. § 15-3a©.
20) See Towns of Wethersfield and Glastenbury, 20 Conn. 218, 1850 WL 664, at *6; Edward Balf Co., 138 A. at 125-26.
21) Rochester v. Barney, 169 A. 45, 47 (Conn. 1933).
22) Chapman, 9 Conn. 38, 1818 WL 20, at *2 (Conn. 1831) (stating that all soil below the high water mark belongs to the state).
23) Id.; see Lovejoy v. Van Emmenes, 416 A.2d 1192, 1194 (Conn. 1979).
24) 173 A.2d 488, 489 (Conn. 1961).
25) State v. Brennan, 216 A.2d at 296.
26) 138 A. at 124.
27) Town of Orange v. Resnick, 109 A. at 866; see State v. Brennan, 216 A.2d at 296.
28) Adams, 2 Conn. 481, 1818 WL 20, at *2.
30) Lovejoy, 416 A.2d at 1194.
32) 11 Op. Conn. Att’y Gen. (1983).
34) Adams, 2 Conn. 481, 1818 WL 20, at *2.
35) Conn. Gen. Stat. § 53a-109 (2005).
36) See Adams, 2 Conn. 481, 1818 WL 20, at *2.
37) Conn. Gen. Stat. § 15-140d (2005).
39) Id. § 15-12.
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