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Show 4 OVERVIEW Court adopted and followed the English, test of navigability until 1851. In that year the Court decided that the tidewater measure was unrealistic for this country, because here there were great rivers and lakes above tidewater but capable of supporting naviga- tion, and declared that all waters which were susceptible to naviga- tion in interstate or foreign commerce were within Federal admiralty jurisdiction, whether or not they were affected by the tides. Then, in 1871 the Court further defined navigability, explaining that all waters which were navigable in fact, or physically suscep- tible of being used in their ordinary condition as highways of com- merce for trade and travel on water, were navigable in law. The same year the Court held that those waters which formed a nav- igable link in interstate or foreign commerce were navigable waters of the United States, and were subject to regulation of navigation by Congress; whereas waters which were only navigable between different places within the same State were navigable waters of the States, to which the congressional power to regulate navigation did not apply. This expansion of the test of navigability, so as to include in- land waters, created some confusion among the States with respect to the measure of riparian rights. The Eastern States had followed the English test, as the U.S. 'Supreme Court earlier had done, and recognized riparian rights in all inland waters as if they were private waters, and recognized public rights only in tidewaters. As a result of the Supreme Court decisions, it was uncertain to what extent public rights extended to inland waters which were navi- gable under the Court's new measure of navigability, and to what extent riparian rights would thus be restricted. This question was answered in 1876, w7hen the Supreme Court noted that the English test of navigability had "laid the foundation in many States of doctrines with regard to the ownership of the soil in navigable waters above tidewater at variance with sound prin- ciples of public policy," and declared that: Whether, as rules of property, it would now be safe to change these doc- trines where they have been applied ... is for (the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. (Barney v. Keokuk, 94 U.S. 324,338 (1876)). As a matter of historical fact, all of the Eastern States adopted the new measure of navigability announced by the Supreme Court, and declared that all navigable inland waters within their respective borders were subject to public use for navigation and fishing. As a result, riparian rights on nonnavigable waters are more extensive than on navigable waters, because public rights of use extend to all natural waterways physically capable of supporting navigation, whether coastal or inland. The Western States also followed the ex- panded test of navigability for the purpose of recognizing public rights of use in all waters that were navigable in fact, but western water law doctrines, as will be seen in the next section, differed markedly from riparian concepts. |
