The right of the public to access Kentucky waterways is historically guaranteed and crucial to the continued use and enjoyment by future generations. From time-to-time, groups or private entities seek to restrict the availability of waters in contravention of public interests.

The “public trust doctrine” arose from the English common law concept that lands flowed by tidal waters were held by the King for the benefit of the nation. During the formation of the United States, title to soils under tide waters were reserved to the states where they were located. Courts called upon to interpret these common law notions have repeatedly held that the states, upon entry into the Union, received ownership of all land under waters subject to the ebb and flow of the tide.

As the United States developed, so to did the concept of the public trust doctrine develop. By the later mid-1800s, courts came to recognize as “the settled law of this country” that the lands under navigable freshwater lakes and rivers were within the public trust given to the states.

The concept underlying this doctrine is that the states bears the responsibility of preserving the historical right of the public to navigation upon the waterways within its own geographical borders.

In Kentucky, like most other states, courts have held that while landowners may own to the middle (“the thread”) of a particular stream or title to adjacent lake shores, those riparian rights are subordinate to the public’s right to the use of navigable waters.

A 1985 Kentucky case determined that the “public right of navigation” includes travel upon the waterways but also the “right to use the public waterways for recreational purposes such as boating, swimming and fishing.”

Other states courts have specifically held that the public may fish in public waters without committing a trespass upon adjoining land or the land underlying the waterway, though they my not be entitled to cross upon privately held lands to gain access to the public waters. Moreover, Kentucky courts have recognized that the right of navigation for commercial or recreational purposes may include the right to temporary anchorage and incidental uses of the riverbed.

While almost any lake of any size may be considered navigable, the issue of determining which streams are navigable is less easily ascertained. Courts generally look to the current or historical use of the waterway to determine if it serves some commonly useful purpose of trade or commerce. When approaching the issue of navigability from a historical perspective, it is ofttimes surprising the breadth of commerce which has been carried upon relatively minor flows. The Rockcastle River, for example, has been specifically declared to be navigable by one Kentucky court.

Kentucky has nearly 700 square miles of waters excluding ponds of less than 40 acres and streams less than one-eighth mile wide. According to Ed Councill of the Kentucky Outdoor Center, as measured by streambank miles, Kentucky is blessed with nearly 18,000 miles of waterways — second only to Alaska — which can be accessed by at least some sort of paddleable craft.

Given the interest of Kentuckians in recreational fishing and boating, and the commercial benefit that out-of-state visitors to our waters bring to Kentucky’s economy, courts will no doubt continue to confront challenges to the public’s historical right of access to navigable waters.

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