Public Ownership of the Rivers in WV

by Abby Chapple

Much has been said and discussed about who owns the rivers – water, banks and bottom – in West Virginia. In fact, last year at our John Waits Lecture, Delegate, the Honorable Charles Trump, weighed in on the subject after having reviewed a law article by Larry George. He has since done further research to enlighten us with a legal article by Charles McElwee.

In addition, we have discovered an organization that is entirely devoted to the disseminating information about this subject. It is The National Organization for Rivers (NORS) River Law Project. This is a brief summary of what we have learned.

A Long History

Interestingly, the origins of public ownership and public rights date as far back as the Roman law and the 1215 Magna Charta. In the United States the Supreme Court has agreed and held that rivers have been public since ancient times. Fishermen will also be pleased to know that public fishing rights were codified shortly after the colonies were founded.

Most importantly, for our purposes, “The US supreme Court has held that the bed and banks under all rivers, lakes and streams that are navigable, for title purposes, are owned by the states, held in trust for the public. Title in this context means ownership. This public-trust ownership extends up to the ordinary high water line encompassing what is commonly referred to as the submerged and submersible land.” according to NORS.

West Virginia Law

In West Virginia this public trust owned by the state is held by its Public Land Corporation (PLC), notes West Virginia lawyer Charles McElwee who has dealt with this subject extensively. The Public Land Corporation is a unit of the Division of Natural Resources and is vested by statute. (W.Va. Code,SS20-1a-1). Today there are approximately 9,000 recognized rivers and streams in the state, totaling some 34,000 miles of riverbeds and streambeds. This adds up to more than 100,000 surface acres of rivers and streams in the state.

The next question would appear to be, 'What does navigable, mean?'. As with many legal terms navigable means something specific, not what one would think of in common, everyday terms. Without going into a long definition, the courts have determined that the use or potential for use by almost any type of watercraft is sufficient to determine this type of navigability, says NORS. And for the record the Cacapon River has been defined as navigable by the state legislature.

Another concern might be, How does one determine the ordinary high water mark? “The ordinary high water mark is the highest that the water gets in a average year—but not the highest it gets during extreme flooding,” says NORS. Wherever the land along the river is fairly flat, the ordinary high water mark can be quite some distance from the edge of the water, when the river is at medium levels. This means that there can be plenty of room for picnics, camping, walking and other activities. The Courts have ruled that any and all nondestructive activities on this land are legally protected.

Public use of the land is not part of an “easement,” rather it’s a case of actual public ownership of the land. Residents along the Cacapon River whose plats show that their property lines extend into or across rivers and streams have been asking what this means. The answer is, essentially nothing. Numerous law cases have upheld that streambed ownership by a private party is irrelevant. Under the Equal Footing Doctrine, the beds and banks of these rivers and streams are a strip of public land, to be conserved for public benefit. Boaters in all kinds of boats are free to use this water and the immediate adjacent land. The public can “cross private property in order to portage around barriers in the water but this must be done in the least intrusive manner possible.”

In particular, this means that no private party may bar the use of those waters or adjacent land by the people. Because of this, it is said to be advisable for landowner fences and “No Trespassing” signs to be located above the ordinary high water line. Nevertheless, the public does not have a general right to cross private land to get to and from rivers, but such a right exists at traditional access routes. This includes fords, public access locations, and a right of passage from a highway bridge to the river.

However, it is clear that the public can only use the banks as necessary to make use of the water. In addition, the PLC can, and must, prohibit activities that harm public resources, such as leaving trash or tearing up the beds or banks of a river with vehicles. They must limit mining and the taking of sand and gravel to certain areas.

The problems on the Cacapon involving intrusive use of motorized watercraft appears to be covered also. NORS states that “government agencies must only allow motorboats at times and places where they are not a major impact on other river users.”  The courts have held that state government agencies can allow motors in some areas and prohibit them in others.

One questions that is still not clear, Can an owner of riparian land be sued if a person is injured on “their property?” A helpful chart has been prepared by NORS and can be found on page 4. For more detailed information on this subject refer to the National Organization for Rivers web site www.nors.org or write The National Organization for Rivers (NORS) 212 West Cheyenne Mountain Colorado Springs CO 80906. Phone number is: 719-579-8759.

Two references, among others, for further reading: Forever Free: navigability, Inland Waterways, and the Expanding Public Interest by Richard M. Frank, 16 UC Davis Law Review 579 (1983); and Public Trust Rights, by Helen F. Althaus et al., U.S. Department of the Interior, Office of the Solicitor (1978).