Request By:
Gardner D. Wagers
Clark County Judge/Executive
Clark County Courthouse
P.O. Box 5
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your letter of September 5, 1979 in which you ask what constitutes a navigable stream in Kentucky. Your question specifically relates to Lulbegrud Creek, which divides Clark and Powell counties.
There are two tests of navigability which are used for different purposes, ownership of submerged lands and public rights of navigation.
The "ebb and flow" test of navigability is applied to determine ownership of submerged lands. Kentucky has adopted the English Common Law which is that owners of lands bounded by waterways not subject to the ebb and flow of tides take title to submerged lands to the thread of the stream. This ownership test applies regardless of the status of the stream for purposes of public rights of navigation.
City of Covington v. State Tax Commission, 21 S.W.2d 1010, 231 Ky. 606 (1929);
Wilson v. Watson, 132 S.W. 563, 141 Ky. 324 (1910), rev. 138 S.W. 233, 144 Ky. 352 (1911), citing
Berry v. Snyder, 3 Bush 266;
Robinson v. Wells, 135 S.W. 317, 142 Ky. 800 (1911).
The "navigability in fact" test is used to determine the public right of navigation. The test is stated in
Goodin's Ex'r v. Kentucky Lumber Co., 14 S.W. 775 (Ky. 1890): "[I]f the stream, in its natural condition, is capable of being used for floating vessels, rafts, logs, etc., and has in the past been used for that purpose, the public has an easement in it." See also
Floyd County County v. Allen, 227 S.W. 994, 190 Ky. 532 (1921).
In order to be considered navigable, the stream does not have to be navigable for all purposes. Rather, to the extent a stream can be put to some kind of valuable, navigable use, it is to be considered navigable for that purpose. The stream does not need to be navigable at all times of the year or at all stages.
It is not essential that the capacity of the stream should be continuous, to constitute it a public highway. It is sufficient if it is ordinarily subject to periodical fluctuations, attributable to natural causes, and recurring regularly, like the seasons, and if its periods of high water and navigable capacity usually continue a sufficient length of time to make it useful as a highway.
Murray v. Preston, 50 S.W. 1095, 106 Ky. 561 (1899). See 78 Am.Jur.2d, Waters § 60-66.
The navigability of a stream involves its usefulness as a public highway for trade or commerce of some type. Just being capable of recreational boat traffic is not enough. "[T]he fact of its sufficiency for pleasure boating or for hunters or fishemen to float their skiffs or canoes does not make [a stream] navigable in law. . ."
Natcher v. City of Bowling Green, 95 S.W.2d 255 at 359, 264 Ky. 584 (1936).
The highest court in Kentucky has stated that a stream usable for floating logs only with the help of splash dams and/or assistance of people along the banks pushing logs downstream is not considered navigable.
Banks v. Frazier, 64 S.W. 983, 111 Ky. 909 (1901);
Asher v. McKnight, 112 S.W. 647, 129 Ky. 623 (1908).
The relationship of riparian rights to navigation rights needs to be considered. For navigable waters, riparian rights are subject to the public right of navigation.
Commonwealth, Department of Highways v. Thomas, 427 S.W.2d 213 (Ky. 1967) at 215-216; 78 Am.Jur.2d, Waters § 90. The rights of persons to use navigable waters extends beyond navigation, to "all useful and lawful purposes". 78 Am.Jur.2d, Waters § 86.
However, the rights of persons using navigable streams for that purpose do not extend to the use of privately owned banks. "[T]he absolute rights of persons in the use of a navigable stream for the purpose of navigation extend alone to the bed of the stream, and not to the appropriation of the soil, trees, and vegetation on its banks, either permanently or temporarily, to their own use; . . ."
Smith v. Atkins, 60 S.W. 930 at 930-931, 110 Ky. 119 (1901).
Furthermore, those persons using a navigable stream must do so with due care. "The public [has] the right to use it, but not in such a manner as to destroy, by neglect or wantonly, the property of those who live on its banks." Goodin's Ex'r, supra, at 775.
The question whether a stream is navigable for purposes of public right of navigation is one of fact. The Attorney General's office is not in the position to make that determination with respect to Lulbegrud Creek. That must be done by a finder of fact empowered to make such determinations.
Hopefully this opinion has provided you with some of the factors which need to be considered when determining the navigability of a stream and the rights of those using navigable streams. If you have further questions, feel free to contact this office. We are returning to you the photos you enclosed in your letter.