Who owns the bed of a Tennessee river, and how is that decided when the U.S. Army Corps of Engineers calls a river navigable?

Subject

Opinion No. 11-75, Determination of Navigability and Ownership of Land Beneath a River, October 21, 2011

Plain-English summary

Representative Lundberg asked when a Tennessee river is legally navigable, and what role the U.S. Army Corps of Engineers plays in that determination. The AG explained Tennessee's two-tier framework.

Tier one: ownership of the bed. The Tennessee Supreme Court has held since the early twentieth century that the bed of a navigable stream, up to the low-water mark, belongs to the State and is not capable of private ownership. State v. Muncie Pulp Co. (1907) and State ex rel. Cates v. West Tennessee Land Co. (1913) are the governing decisions. The bed of a non-navigable river, by contrast, can be privately owned, and typically belongs to the adjoining riparian landowners.

Tier two: what counts as "navigable." For ownership purposes, Tennessee uses a fact-specific test: the river must, "in its ordinary state, be capable of and suited to navigation by vessels employed in the ordinary purposes of commerce." This is not a federal standard. It is a Tennessee standard, and it is a jury question. City of Murfreesboro v. Pierce Hardy Real Estate (Tenn. Ct. App. 2001) and earlier cases (Southern Ry. Co. v. Ferguson; Miller v. State) all make clear that "whether a freshwater stream is navigable is always a question of fact."

That ordering matters when the federal government weighs in. The Corps of Engineers issues navigability determinations under 33 U.S.C. Part 329 and 33 C.F.R. § 329 to support its regulatory mission (permitting, dredging, structures). The Corps's own regulations admit those determinations "cannot be made conclusively by administrative agencies" because "precise definitions of 'navigable waters of the United States' or 'navigability' are ultimately dependent on judicial interpretation." 33 C.F.R. § 329.3. Even federal courts treat Corps determinations as non-binding (Miami Valley Conservancy Dist. v. Alexander; U.S. v. Harrell).

The Tennessee Court of Appeals in Pierce Hardy applied that same logic to state court ownership disputes. A Corps determination may be accorded "substantial weight," but the landowner is entitled to introduce contrary proof and challenge the Corps's methodology. The jury, not the Corps, ultimately decides whether a river is navigable for Tennessee ownership purposes.

A separate point worth flagging: even if a river is non-navigable for ownership, the public retains a right of "free and uninterrupted use and enjoyment of such stream for all the purposes of transportation and navigation to which it is naturally adapted." A landowner who owns the bed cannot keep the public off the water. (One exception, Austa La Vista, involved private contractual restrictions on a private timeshare lake.)

The Cates case carries a wrinkle on Reelfoot Lake: even though the lake was deemed legally navigable, land underneath that had been granted by North Carolina before Tennessee statehood remained privately owned. That historical-grant exception is rare but real.

Currency note

This opinion was issued in 2011. 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 Muncie Pulp / Cates / Pierce Hardy framework remains foundational to Tennessee water law. Practitioners should consult any post-2011 Tennessee Supreme Court or Court of Appeals decisions before relying on the precise contours stated here.

Background and statutory framework

The Tennessee rule on ownership. "Under Tennessee law title to the bed of a navigable stream, to the low-water mark, is publicly held and belongs to the State." Uhlhorn v. Keltner, 637 S.W.2d 844, 846 (Tenn. 1982) (citing Muncie Pulp). Land beneath a non-navigable waterway can be privately owned.

The legal definition of "navigable." A waterway is navigable for Tennessee ownership purposes if, "in its ordinary state, [it is] capable of and suited to navigation by vessels employed in the ordinary purposes of commerce." Pierce Hardy at *6 (citing Cates, 127 Tenn. at 584-85).

Navigability as a fact question. "The determination of whether a waterway meets the definition, and is, therefore, navigable is one of fact to be determined by the jury." Pierce Hardy at *6. See also Southern Ry. Co. v. Ferguson, 105 Tenn. 552, 562-63 (1900); Miller v. State, 124 Tenn. 293, 300 (1911) ("Whether a freshwater stream is navigable is always a question of fact.").

Public right on non-navigable waterways. The public maintains "a right to the free and uninterrupted use and enjoyment of such stream for all the purposes of transportation and navigation to which it is naturally adapted." The Pointe Ass'n, LLC v. Lake Management Inc., 50 S.W.3d 471, 476 (Tenn. Ct. App. 2000). See also Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 448-449, 681 S.E.2d 819, 824-825 (2009).

The Corps of Engineers determinations. 33 U.S.C. Part 329 grants the Corps authority to declare waterways navigable for its mission. 33 C.F.R. § 329.3 acknowledges these determinations cannot conclusively define navigability and are dependent on judicial interpretation. 33 C.F.R. § 329.14 sets procedures for Corps determinations; 33 C.F.R. § 329.14(a) provides that "navigability determinations should be accorded substantial weight by the courts."

Federal precedent on Corps non-binding effect. Miami Valley Conservancy Dist. v. Alexander, 692 F.2d 447, 449, 451 (6th Cir. 1982), cert. denied, 462 U.S. 1123 (1983); U.S. v. Harrell, 926 F.2d 1036, 1043-44 (11th Cir. 1991) (rejecting Corps letter that "falls far short of a determination of navigability required by 33 C.F.R. § 329.14").

Pierce Hardy on state court treatment. The Tennessee Court of Appeals held that because a Corps determination is not binding on federal courts, "such agency determination cannot be binding on Tennessee courts on the question of whether a waterway is navigable in the legal sense, under state law, so as to affect ownership rights." 2001 WL 1216992 at *8.

The Reelfoot exception. Cates, 127 Tenn. at 598, 158 S.W. at 752, recognized that even on a legally navigable body of water (Reelfoot Lake), land underneath that had been granted by North Carolina before Tennessee statehood could remain privately owned, as long as the granted lands could be reasonably identified.

Common questions

What does "navigable in fact" mean for an ordinary stream?

The test is whether the river, in its natural state, is suited to carrying commercial vessels. Seasonal canoes and recreational small craft do not establish navigability under the ownership test. A river that was historically used for log floating, ferries, or commercial barge traffic typically meets it.

If the Corps says a river is navigable, why is that not the end of the question?

The Corps's determination supports federal regulatory permitting (e.g., Section 10 of the Rivers and Harbors Act) and is binding for its own purposes. But navigability for ownership in Tennessee is a separate question governed by Tennessee law, and the Corps's regulations themselves disclaim conclusive authority on the legal question.

Can a landowner block kayakers from a river that flows across the landowner's property?

Probably not, even if the river is legally non-navigable and the landowner owns the bed. Tennessee law preserves a public right of passage for "all the purposes of transportation and navigation to which [the stream] is naturally adapted." Landowners cannot fence off a waterway the public can use, although they can prohibit trespass on adjacent land.

How does the historical-grant exception work?

Cates concerned land that North Carolina granted before 1796, the date Tennessee became a state. Land beneath what later became Reelfoot Lake had been validly granted to private parties before the water body even formed. The Tennessee Supreme Court treated those grants as preserved. The exception is rare; it depends on tracing title to a pre-statehood grant from North Carolina.

What about the meandered/non-meandered distinction sometimes used in other states?

Tennessee does not use that label as the primary test. The Muncie Pulp / Cates "ordinary purposes of commerce" test is the controlling state-law standard. Federal navigability tests (for admiralty jurisdiction or federal regulatory reach) use different formulations.

Citations

• 33 U.S.C. Part 329
• 33 C.F.R. § 329.3
• 33 C.F.R. § 329.14
• 33 C.F.R. § 329.14(a)
• Uhlhorn v. Keltner, 637 S.W.2d 844 (Tenn. 1982)
• State v. Muncie Pulp Co., 119 Tenn. 47, 104 S.W. 437 (1907)
• State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746 (1913)
• The Pointe Ass'n, LLC v. Lake Management Inc., 50 S.W.3d 471 (Tenn. Ct. App. 2000)
• Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 681 S.E.2d 819 (2009)
• Austa La Vista, LLC v. Mariner's Pointe Interval Owners Ass'n, Inc., 173 S.W.3d 786 (Tenn. Ct. App. 2005)
• City of Murfreesboro v. Pierce Hardy Real Estate, Inc., No. M2000-00562-COA-R9-CV, 2001 WL 1216992 (Tenn. Ct. App. 2001)
• Southern Ry. Co. v. Ferguson, 105 Tenn. 552, 59 S.W. 343 (1900)
• Miller v. State, 124 Tenn. 293, 137 S.W. 760 (1911)
• Miami Valley Conservancy Dist. v. Alexander, 692 F.2d 447 (6th Cir. 1982)
• U.S. v. Harrell, 926 F.2d 1036 (11th Cir. 1991)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-075.pdf

Original opinion text

October 21, 2011
Opinion No. 11-75
Determination of Navigability and Ownership of Land Beneath a River

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?

OPINIONS

1. Whether a particular waterway is navigable in the legal sense is a question of fact to be determined by a jury. The legal navigability of a waterway determines whether the land beneath those waters may be privately owned. If navigable, the title to the bed of waterway, to the low-water mark, is publicly owned by the State. Conversely, if non-navigable, then the land beneath the waterway can be privately owned. If a waterway has not been deemed legally navigable by a jury, then as regards ownership rights to the land beneath the waterway that waterway is not presumed to be either navigable or non-navigable. Nonetheless, even if a waterway is deemed non-navigable, the public maintains a right to free and uninterrupted use of the waterway for all the purposes of transportation and navigation to which it is naturally adopted.

2. A determination by the U.S. Army Corps of Engineers that a river is navigable may be considered by a jury and even given substantial weight in determining ownership rights to the land beneath the river. However this determination is not binding on the question of whether the waterway is navigable in the legal sense, under Tennessee law, so as to affect ownership rights. A private landowner would be entitled to introduce contrary proof and to question the Corps' determination and the procedures used to reach it. Thus, the question whether a river is legally navigable is for a jury to determine based on a factual record developed in a lawsuit.

ANALYSIS

1. "Under Tennessee law title to the bed of a navigable stream, to the low-water mark, is publicly held and belongs to the State." Uhlhorn v. Keltner, 637 S.W.2d 844, 846 (Tenn. 1982) (citing State v. Muncie Pulp Co., 119 Tenn. 47, 99, 104 S.W. 437, 450 (1907)). Thus, the general rule is that land beneath a waterway that is navigable in the "technical legal sense of that term" is not "capable of private ownership." State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 580, 158 S.W. 746, 747 (1913).[1] In contrast, if the waterway is found to be non-navigable, then the land beneath the waterway can be privately owned.

However, even if the waterway is deemed non-navigable and the land beneath the waterway may be privately owned, Tennessee law generally recognizes that the public maintains "a right to the free and uninterrupted use and enjoyment of such stream for all the purposes of transportation and navigation to which it is naturally adapted." The Pointe Ass'n, LLC v. Lake Management Inc., 50 S.W.3d 471, 476 (Tenn. Ct. App. 2000) (quoting State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 749 (1913)). See also Bauman v. Woodlake Partners, LLC, 199 N.C. App. 441, 448-449, 681 S.E.2d 819, 824-825 (2009). But see Austa La Vista, LLC v. Mariner's Pointe Interval Owners Ass'n, Inc. 173 S.W.3d 786, 791 (Tenn. Ct. App. 2005) (master deed and other documents appropriately restricted timeshare owners use of lake next to condominium timeshare by requiring payment of applicable fees to use the lake and other amenities).

"To be 'navigable' such that it invokes the prohibition on private ownership, a waterway must, in its ordinary state, be capable of and suited to navigation by vessels employed in the ordinary purposes of commerce." City of Murfreesboro v. Pierce Hardy Real Estate, Inc., No. M2000-00562-COA-R9-CV, 2001 WL 1216992 at 6 (Tenn. Ct. App. 2001), appeal denied, (Tenn. Feb. 19, 2002) (citing Cates, 127 Tenn. at 584-85, 158 S.W. at 747). "The determination of whether a waterway meets the definition, and is, therefore, navigable is one of fact to be determined by the jury." Id. at 6 (citing Southern Ry. Co. v. Ferguson, 105 Tenn. 552, 562-63, 59 S.W. 343, 346 (1900)). See also Miller v. State, 124 Tenn. 293, 300, 137 S.W. 760 (1911) ("Whether a freshwater stream is navigable is always a question of fact."). If the legal navigability of a particular waterway has not yet been determined by a jury, there is nothing in Tennessee jurisprudence suggesting that the waterway should be presumed to be either navigable or non-navigable for purposes of determining rights of ownership of the land beneath those waters.

2. "Federal law gives the Corps of Engineers the power to declare waterways navigable for the purpose of furthering its mission." Pierce Hardy, 2001 WL 1216992 at *7. See 33 U.S.C. Part 329 (2011). Although these determinations are "considered binding in regard to the activities of the Corps of Engineers," the Corps' regulations acknowledge that "precise definitions of 'navigable waters of the United States' or 'navigability' are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies." 33 C.F.R. § 329.3 (2011). Thus, the Corps' navigability determinations are not binding on a federal court. See, e.g., Miami Valley Conservancy Dist. v. Alexander, 692 F.2d 447, 449, 451 (6th Cir. 1982), cert. denied, 462 U.S. 1123 (1983) (Although "the Corps determined that the River was navigable ... [t]he District Court did not err in its factual or legal conclusions that the upper portion of the River and the tributaries were not navigable.").

In considering this question in Pierce Hardy, the Tennessee Court of Appeals held that if a navigability determination by the Corps is not binding on federal courts, "such agency determination cannot be binding on Tennessee courts on the question of whether a waterway is navigable in the legal sense, under state law, so as to affect ownership rights." 2001 WL 1216992 at 8. The appellate court did note that the Corps' regulations provide that its navigability determinations should be "accorded substantial weight by the courts." Id. (quoting 33 C.F.R. § 329.14(a) (2011)).[2] The Court of Appeals concluded in Pierce Hardy that even if a navigability "determination by the Corps may be accorded substantial weight, Landowner is entitled to introduce contrary proof and to question the Corps' determination and the procedures used to reach it." Id. at 8.

Thus, the question of whether a river is navigable is "an issue for the trier of fact based upon evidence relevant to that determination." Id. at *9. While a determination by the Corps that a river is navigable may be considered by a jury, and may even be given substantial weight, it is not binding on the question of whether the waterway is legally navigable, under Tennessee law, so as to affect ownership rights in land beneath the river.

[1] Cates involved Reelfoot Lake and an exception to the general rule. Although the lake was deemed legally navigable in that lawsuit, the Tennessee Supreme Court held that land underneath the lake that had been granted by the State of North Carolina prior to the creation of the State of Tennessee could be privately owned. State ex. Rel Cates v. West Tennessee Land Co., 127 Tenn. at 598, 158 S.W. at 752 ("As these lands were grantable by North Carolina, and were subject to private ownership before the formation of the lake, we are of opinion that the mere fact that they have since become submerged by a body of navigable water does not deprive the owners of their title to the land as long as they can be reasonably identified.").

[2] To be entitled to substantial weight, the Corps' determination must follow the requirements in 33 C.F.R. § 329.14 (2011). See U.S. v. Harrell, 926 F.2d 1036, 1043-44 (11th Cir. 1991) ("[A]s the district court noted, [the Corps'] letter 'falls far short of a determination of navigability required by 33 C.F.R. § 329.14.' We agree and, on this basis, reject any suggestion that this letter is entitled to substantial weight.") (footnote omitted).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

BARRY TURNER
Deputy Attorney General

Requested by:
The Honorable Jon Lundberg
State Representative
20 Legislative Plaza
Nashville, Tennessee 37243