Can North Carolinians legally canoe or kayak down a stream that runs across private property, or do they need permission from the landowners along the banks?

Plain-English summary

The General Counsel of NC's Department of Environment and Natural Resources asked the AG whether the public has the right to paddle North Carolina streams that are navigable in fact by canoe or kayak, even when the land along the banks is privately owned. The question had been hanging since 1997 while a related case (Wainwright v. State) over inter-tidal salt marshes in New Hanover County made its way through the courts.

Senior Deputy AG Daniel C. Oakley and Special Deputy AG J. Allen Jernigan said yes. Their answer turned on the NC Supreme Court's 1995 decision in Gwathmey v. State of North Carolina, 342 N.C. 287, which restated the controlling rule for public trust rights in NC waters. The "pleasure craft test" applies: if a stream is capable in its natural condition of being navigated by "useful vessels" (including small craft used for pleasure), it is navigable in fact and therefore navigable in law. Once a stream is navigable in law, the public has the right to use it for navigation and other public trust activities (swimming, fishing, hunting), regardless of who owns the land along the banks.

The AG took the further step of identifying canoes and kayaks as "useful vessels" under Gwathmey. The court hadn't enumerated the specific watercraft it had in mind, but the 1888 Narrows Island Club case (cited approvingly in Gwathmey) treated "battery boats, flat-boats and skiffs, drawing from eight to eighteen inches of water" as useful vessels. The AG also pointed at the "floatability" line of cases, which held that streams capable of floating logs during spring freshets were subject to a public easement, confirming that periodic or seasonal navigability still counted.

Two limits matter. First, the right is to travel, not to land. The Supreme Court was explicit in Gaither v. Albemarle Hospital, 235 N.C. 431 (1952): the banks of a navigable stream are private property; paddlers do not get an automatic right to step out onto them. Second, the right has an upper limit, somewhere above which the stream's capacity for "navigation in the usual and ordinary course" ceases and private property rights re-attach. The AG acknowledged in Baum's language that landowners might still close off small upstream creeks where only "an idle hunter might be able to pole a canoe." The State retains police-power authority to regulate use of navigable-in-fact waters for public health and safety.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Gwathmey doctrine remains the leading NC statement on navigability in fact, but specific applications to particular streams are highly fact-specific. Paddlers planning a controversial route should check current case law and any local regulations.

Background and statutory framework

NC's public trust doctrine traces to the common law of England and was carried into NC law through pre-Revolutionary statutes and confirmed by post-Revolution state constitutional provisions. The doctrine holds that the State holds title to the beds of navigable waters in trust for the public, subject to public trust rights of navigation, fishing, hunting, swimming, and recreation. The General Assembly partially codified those rights at N.C. Gen. Stat. § 1-45.1, including "the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State."

The hard question has always been which streams are subject to public trust rights and which are private. The old federal "commercial navigability" test, derived from The Daniel Ball (1870), asked whether the stream was navigable for commercial trade. NC followed that for a time but moved through cases like State v. Twiford, State v. Baum, and State v. Narrows Island Club toward a broader pleasure-craft test, recognizing that the purpose of navigation (commercial vs. recreational) was not the point; the capacity for navigation was.

Gwathmey in 1995 is the modern restatement. The State had argued that certain inter-tidal salt marshes had become privately conveyed under colonial-era grants and were no longer subject to public trust rights. The Supreme Court ruled for the State, restated the pleasure-craft test, and treated navigability in fact by useful vessels (including pleasure craft) as the controlling line.

The 1998 opinion applies that test specifically to canoes and kayaks. By the time of the opinion, NC had a substantial recreational paddling industry on rivers like the French Broad, the Nantahala, the Lumber, and the Roanoke. The AG's opinion gave DENR a legal foundation for treating those streams as open to the public regardless of riparian ownership patterns.

Common questions

What about portaging around a rapid or fallen tree?

The opinion doesn't directly address portage. Strict reading of Gaither would suggest a paddler cannot step onto private banks even briefly. As a practical matter, paddlers and landowners have generally tolerated short portages around obstacles. A landowner who genuinely wanted to enforce a no-trespass rule against momentary portage could probably do so under the bank-as-private-property principle, but the law has not really been tested on this specific scenario.

How small can the stream be before public navigation rights stop?

The opinion explicitly notes that the upper limit is unclear. Baum used the example of a creek where only "an idle hunter might be able to pole a canoe" as an example of a stream where public rights probably do not extend. Above that level (where a canoe could be paddled normally in the usual and ordinary course), the AG's reading is that public trust rights attach.

Does this apply to seasonal streams?

The floatability line of cases (Burke County Commissioners, Gwaltney, McLaughlin, White Oak River Corp.) supports the view that periodic or seasonal navigability counts. A stream navigable only in spring freshets was held to carry a public easement during those periods.

Can the State still regulate paddling?

Yes. The opinion preserves the State's police power to regulate use of navigable-in-fact waters for public health, safety, or welfare. Examples include boating safety laws, fishing regulations, and environmental restrictions.

Source

• Landing page: https://ncdoj.gov/opinions/use-of-navigable-in-fact-streams-without-consent-of-riparian-owners/

Citations

• N.C. Gen. Stat. § 1-45.1
• Gwathmey v. State of North Carolina, 342 N.C. 287, 464 S.E.2d 674 (1995)
• State v. Twiford, 136 N.C. 603, 48 S.E. 586 (1904)
• State v. Baum, 128 N.C. 600, 38 S.E. 900 (1901)
• State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411 (1888)
• Swan Island Hunt Club v. White, 114 F. Supp. 95 (E.D.N.C. 1953), aff'd sub nom., Swan Island Club v. Yarborough, 209 F.2d 698 (4th Cir. 1954)
• Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 21 S.E. 941 (1895)
• Gwaltney v. Scottish Carolina Timber & Land Co., 111 N.C. 547, 16 S.E. 692 (1892)
• McLaughlin v. Hope Mills Mfg. Co., 103 N.C. 100, 9 S.E. 307 (1889)
• State v. White Oak River Corp., 111 N.C. 661, 16 S.E.2d 331 (1892)
• Gaither v. Albemarle Hospital, 235 N.C. 431, 70 S.E.2d 680 (1952)

Original opinion text

January 20, 1998

Richard B. Whisnant
General Counsel
N. C. Department of Environment and Natural Resources
512 North Salisbury Street
Raleigh, North Carolina 27604

RE: Advisory Opinion: Use of navigable-in-fact streams without consent of riparian owners.

Dear Mr. Whisnant:

On August 27, 1997 you requested a formal Attorney General's Opinion on the following question:

Do all citizens have the right to travel by boat down the course of North Carolina streams that are navigable in fact by canoe or kayak, without the consent of riparian property owners?

We agreed that the answer to your question should be delayed, pending final resolution of litigation involving the Department of Environment and Natural Resources ("Department" or "DENR"), in which the issue was raised. As you are aware, those five consolidated cases (Wainwright, et al v. State of North Carolina, et al, New Hanover Co., 91 CVS 640, 816, 1117, 1790) involved whether certain inter-tidal salt marshes in New Hanover County were navigable-in-fact, so as to be subject to public trust rights. Following the State prevailing in that matter, we discussed whether a formal opinion or an advisory opinion would be the more appropriate response. We advised you that the issuance of an advisory opinion would be preferred, as it was more consistent with the opinion policy of this Office. Having heard nothing further from you, and being aware that you will soon be leaving State service, we provide you with the following advisory opinion.

The answer to your question may be summarized as follows:

Yes. Citizens have the right to travel by "useful vessels" such as canoes and kayaks, "in the usual and ordinary mode" on waters which are in their natural condition capable of such use, without the consent of the owners of the shore.

Under the public trust doctrine, as applied in North Carolina, citizens have the right to use the state's navigable waters for the exercise of public trust rights, without the consent of riparian owners, i.e., the owners of the land adjacent to those waters. Public trust rights are defined by common law, and "include, but are not limited to, the right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State and the right to freely use and enjoy the State's ocean and estuarine beaches and public access to the beaches." N.C.G.S. § 1-45.1.

North Carolina follows the modern "pleasure craft test" in determining whether waters are navigable-in-fact, and therefore subject to public trust rights. In Gwathmey v. State of North Carolina, 342 N.C. 287, 464 S.E.2d 674, 679 (1995), the North Carolina Supreme Court set forth the law of this State governing application of the public trust doctrine to navigable waters. Chief Justice Mitchell, writing for the unanimous Court, explained:

The controlling law of navigability as it relates to the public trust doctrine in North Carolina is as follows: " 'If water is navigable for pleasure boating it must be regarded as navigable water, though no craft has ever been put upon it for the purpose of trade or agriculture. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation.' " Id. at 608-09, 48 S.E. at 588 (quoting Attorney General v. Woods, 108 Mass. 436, 440 (1871)). In other words, if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has not been used for such purpose. Lands lying beneath such waters that are navigable in law are the subject of the public trust doctrine. 342 N.C. at 301, 464 S.E.2d at 682.

The Court concluded that "navigability in fact by useful vessels, including small craft used for pleasure, constitutes navigability in law." (Emphasis supplied.) Gwathmey, 342 N.C. at 300, 464 S.E.2d at 681, citing State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411 (1888). "The capability of being used for purposes of trade and travel in the usual and ordinary modes is the test, and not the extent and manner of such use." Gwathmey, 342 N.C. at 300, 464 S.E.2d at 681, quoting State v. Twiford, 136 N.C. 603, 606, 48 S.E. 586, 587 (1904). Further, "the public have the right to the unobstructed navigation as a public highway for all purposes of pleasure or profit, of all watercourses, whether tidal or inland, that are in their natural condition capable of such use." Gwathmey, 342 N.C. at 300, 464 S.E.2d at 681, quoting State v. Baum, 128 N.C. 600, 604, 38 S.E. 900, 901 (1901).

Over a century ago, in State v. Narrows Island Club, a case cited with approval in Gwathmey, the Supreme Court found "battery boats, flat-boats and skiffs, drawing from eight to eighteen inches of water" to be "useful vessels." 100 N.C. at 479. Although the Gwathmey Court did not specify what types of vessels it meant by the phrase "useful vessels, including small craft used for pleasure," in our opinion canoes, kayaks, and similar small recreational craft are clearly included within the meaning of those terms. This is the modern trend followed in other jurisdictions which, like North Carolina, apply the "pleasure craft test" for determining navigability. In Swan Island Hunt Club v. White, 114 F. Supp. 95, 97 (E.D.N.C. 1953), aff'd sub nom., Swan Island Club v. Yarborough, 209 F.2d 698 (4th Cir. 1954), the federal District Court found waters "over shoal lands, even though not useable for navigation by sea vessels or any crafts other than those with flat bottoms, and even though at low tide some of the land thereunder may not be entirely covered by water. . . are navigable waters under the prevailing modern view."

A separate line of cases known as the "floatability" cases supports this conclusion. See Monica Kivel Kalo and Joseph J. Kalo, Battle to Preserve North Carolina's Estuarine Marshes: The 1985 Legislation, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust, 64 N.C. L. Rev. 565, at 581, n. 108. (1986). Those cases were not disturbed by Gwathmey, and are consistent with its holding. That line of cases found that streams, which become navigable for the floating of logs only during the spring freshets or on a seasonal basis, are subject to an easement in the public for that purpose. Commissioners of Burke Co. v. Catawba Lumber Co., 116 N.C. 731, 733-34, 21 S.E. 941, 942 (1895); Gwaltney v. Scottish Carolina Timber & Land Co., 111 N.C. 547, 553-60, 16 S.E. 692, 693-94 (1892); McLaughlin v. Hope Mills Mfg. Co., 103 N.C. 100, 9 S.E. 307 (1889). The Supreme Court applied the same principle to the upper White Oak River, which was navigable for floating logs, except in the summer, when the waters fell. State v. White Oak River Corp., 111 N.C. 661, 16 S.E.2d 331 (1892).

Thus, citizens have the right to travel by "useful vessels" such as canoes and kayaks, "in the usual and ordinary mode" on waters which are in their natural condition capable of such use. The owner of land adjoining a watercourse has no right to control or interfere with public travel by boat down streams which are navigable in fact. State v. Twiford, 136 N.C. 603, 606-7, 48 S.E. 586-7 (1904). Even so, this does not afford the right to trespass on the shore. The Supreme Court has stated the rule as follows:

However, the right of navigation gives no license to go and come through and over the riparian owner's land without "let or hindrance." Similarly, those navigating a river have no right, as incident to the right of navigation, to land upon and use the bank at a place other than a public landing without the consent of the owner, for the banks of a navigable stream are private property.

Gaither v. Albemarle Hospital, 235 N.C. 431, 444, 70 S.E.2d 680 (1952) (Citation omitted.)

It is not possible to say with confidence how far up a watercourse public rights may extend. At some point, navigability "in the usual and ordinary course" ceases, and public trust rights give way to those of private property. As the Supreme Court noted in State v. Baum, "[w]e are not prepared to say that a land owner would be liable to criminal prosecution because he happened to put a watergate across a creek up which otherwise an idle hunter might be able to pole a canoe. . ." 128 N.C. at 604. Finally, it should be noted that the State may properly exercise its police power to regulate the use of navigable-in-fact waters, to protect the public health, safety, or welfare.

Thank you for your inquiry. Please advise if we may be of further assistance.

Daniel C. Oakley
Senior Deputy Attorney General

J. Allen Jernigan
Special Deputy Attorney General