Determination of Navigability and Ownership of Land Beneath a River (TN Attorney General Opinions, November 17, 2011)
In this opinion, the Attorney General discussed the following questions:
1. When is a river legally deemed navigable, and how does such a determination affect ownership of the land beneath the river?
2. Assuming a river is deemed navigable by the U.S. Army Corps of Engineers, then is the river navigable in a legal sense?
Question 1
After discussing the applicable case law, the Attorney General concluded that whether a waterway is legally navigable is a question of fact to be determined by a jury. The AG states that the legal navigability of a waterway determines whether the land beneath the water may be privately owned--if the waterway is not legally navigable, the land beneath it may be privately owned, but if it is navigable, the bed of the waterway, to the low-water mark, is publicly owned by the State. However, the public maintains a right to "free and uninterrupted use" of the waterway for purposes of transportation and navigation even if a waterway is deemed non-navigable.
Question 2
With regards to the second question, the Attorney General refers to the Code of Federal Regulations, which states that determinations of navigability by the U.S. Army Corps of Engineers is binding on the Corps, but not on federal courts. He then refers to the Tennessee Court of Appeals' City of Murfreesboro v. Pierce Hardy Real Estate, Inc. case, which concludes that if the U.S. Army Corps of Engineers' decision cannot bind federal courts, it also cannot bind state courts. Thus, although the U.S. Army Corps of Engineers' determination of navigability can be considered by a jury, the jury is not bound by that determination and may find contrary to the Corps' determination.
The AG's opinion can be read in its entirety at:
http://www.tba2.org/tba_files/AG/2011/ag_11_75.pdf
