TO: Mr. Blain
FR: Doug Manson
DATE: January 5, 1989 (rev)
RE: Navigability of Non-Tidal Water Bodies
For Land Title Purposes in Florida
Define navigability as used for determining whether submerged
beds of water bodies are subject to ownership by the State of
Florida as sovereignty submerged lands.
The test of navigability in Florida for land title purposes is
whether the water body, in its natural and ordinary condition,
was capable of being used as a highway of commerce, over which
trade and travel were, or could have been, conducted in the
customary modes of trade and travel on the water as of the date
of statehood, March 3, 1845.
In water bodies, the State of Florida can claim ownership of the
submerged bottom as sovereign lands only if the water body is
navigable. In Florida law and in federal law a water body is
navigable-in-law only if it is navigable-in-fact. The test of
what are navigable waters, for the purpose of the exercise of
rights of ownership or control by the state, are restricted to
waters that, by reason of their size, depth and other conditions,
are in fact capable of navigation for useful public purposes.
In Florida, the Supreme Court, in Odom v. Deltona Corporation,
341 So. 2d 977 (Fla. 1977), held that, "Florida's test for
navigability is similar, if not identical, to the federal title
The first United States Supreme Court decision to formulate a
definition of navigable waters was The Daniel Ball v. United
States, 77 U.S. (10 Wall.) 575 (1870), which stated:
Those rivers must be regarded as public navigable rivers in
law which are navigable in fact. And they are navigable in
fact when they are used or are susceptible of being used in
their ordinary condition, as highways for commerce, over
which trade and travel are or may be conducted in the
customary modes of trade and travel on water.
Id. at 563.
Many subsequent Supreme Court cases have adopted The Daniel Ball
definition as the basic federal test by which to locate those
submerged lands to which the state holds title in its sovereign
capacity. The test for navigability is applied to the water body
for the date that sovereign ownership is transferred from the
federal government to the state. Utah v. United States, 403 U.S.
Since Florida entered the Union on March 3, 1845, all
determinations of navigability for sovereignty ownership purposes
rests on the water body's condition as of this date.
The actual determination of navigability many times is difficult.
This is due to the fact that it is a historic determination. The
navigable-in-fact test seems self-explanatory; however, the case
law shows that many different interpretations can be given to
navigability. However, the general theme that the water body
must provide some common purpose of transportation of goods in
the area has been established in Florida.
In the Florida case of Broward v. Mabry, 58 Fla. 398, 50 So. 826
(1909), the court states that the navigability in fact test must
apply the principles of law to the particular facts of each
individual case. In Broward, the court determined that Lake
Jackson in Leon County was navigable, although portions of the
lake bed were so dry at certain times that crops could be planted
and grown. The courts stated the navigability test as:
Where a stream or body of water is permanent in character,
and in its ordinary natural state is in fact navigable for
useful purposes, and is of sufficient size and so situated
and conditioned that it may be used for purposes common to
the public in the locality where it is located, such water
may be regarded as being of public character, and the title
to the land thereunder, including the shore or space between
the ordinary high and low water marks, when not included in
the valid terms of a grant or conveyance to private
ownership, is held by the state in its sovereign capacity in
trust for the lawful uses of all the people of the state in
the water and the land, subject to lawful governmental
regulation of such uses. Capacity for navigation, not usage
for that purpose, determines the navigable character of
waters with reference to the ownership and uses of the land
covered by thd water.
These same principles were followed in a latter case, Clement v.
Watson, 63 Fla. 109, 58 So. 25 (1912). The court in Clement v.
Watson was determining whether a cove subject to the ebb and flow
of the tide was navigable. The court rejected the premise that
waters should be navigable merely because they are affected by
the tides. Id. at 26. Therefore, the court applied the
navigable in fact test stating:
While the navigable waters in the state and the lands under
such waters, including the shore, or space between high and
low water marks, are held by the state for the purpose of
navigation and other public uses, subject to lawful
governmental regulation, yet this rule is applicable only to
such waters as by reason of their size, depth, and other
conditions are in fact capable of navigation for useful
Id. at 26.
The court also found that even if part of the water body was made
navigable by artificial means after the underlying bed became
private property, the bed proprietor is not divested of his
ownership. Id. at 27.
The definition of navigability was amplified in the case of
Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927), which stated:
The navigable waters include lakes, rivers, bays, or
harbors, and all waters capable of practical navigation for
useful purposes, whether affected by tides or not, and
whether the water is navigable or not in all of its parts
toward the outside lines or elsewhere, or whether the waters
are navigable during the entire year or not.
The Supreme Court in the case of Baker v. State, 87 So. 2d 497
(Fla. 1956), clarified earlier holdings and referred to the
established federal navigability test in stating:
In the State of Oklahoma v. State of Texas, 258 U.S. 574, 42
S. Ct. 406, 411, 66 L. Ed. 771, 776, the Supreme Court held
the settled rule in this country to be, "that navigability
in fact is the test of navigability in law, and that whether
a river is navigable in fact is to be determined by
inquiring whether it is used or is susceptible of being used
in its natural and ordinary condition as a highway for
commerce, over which trade and travel are or may be
conducted in customary modes of trade and travel on water.'
Id. at 497-498
The Supreme Court in Baker also confirmed it had approved a
similar test of navigability in Clement v. Watson and Broward v.
The opinion in Baker v. State includes a discussion of the
characteristics of a water body they deemed to be non-navigable.
In determining that Cromartie Arm of Lake lamonia in Leon County
was non-navigable the court stated:
The evidence as a whole shows that Cromartie Arm in its
natural or ordinary state is grass or button wood prairie,
traversed by a shallow stream or strand and that normally,
its width is from four to ten feet, and that its depth is
shallow, not exceeding two feet at best. It is difficult to
push a flat bottomed row boat over; one witness testified
that it was so difficult to get a row boat over it that one
had to "push, cuss and holler" at the same time to make it
go. Cromartie Arm is about one and one half miles long and
the stream or strand connects some pot holes or gator
burrows ranging in size from that of Leon County Court Room
to an acre. Except during a flood stage, the stream or
strand could not be traversed with a "kicker" but could be
negotiated with a pole.
Id. at 498.
The court found this evidence refuted the idea that Cromartie Arm
was navigable for any useful purpose.
In Bucki v. Cone, 6 So. 160 (Fla. 1889), the court held that the
Suwannee River at and above White Sulphur Springs, in Hamilton
County, was a navigable stream. The court stated that:
[I]n this country, all rivers, without regard to the ebb and
flow of the tide, are generally regarded as navigable, as
far up as they may be conveniently used at all seasons of
the year, with vessels, boats, barges, or other water craft,
for the purposes of commerce, and others are regarded as
navigable when so declared by statute. Further than this,
what constitutes a navigable river, free to the public, is a
question of fact to be determined by the natural conditions
in each case.
Id. at 161.
The court continued its analysis stating that:
A stream of sufficient capacity and volume of water to float
to market the products of the country will answer the
conditions of navigability, and is a public highway, open to
all persons for the business of floatage to which it is
adapted, whatever the character of the product, or the kind
of floatage suited to their conditions. Though it may not
be adapted to the use of vessels, and only fit for floating
logs or rafts, yet if required for such use, and there is
sufficient business, present or prospective, to render the
easement a matter of public concern, it will be regarded as
a public stream for that purpose; and it is not essential to
the easement that the stream shall be continuously, at all
seasons of the year, in a state suited to such floatage. If
of capacity a sufficient portion of the year to make it
useful as a public highway, it would be subject to the
Id. at 161-162.
The court discussed the testimony of the case that the portion of
the Suwannee River at issue had been used for a long time for
floating logs for eight to nine months of the year. Further,
that abundant pine forests existed along both sides of the river
and that the value of the logs made them an important product of
commerce entitling the public to use the stream as a natural
highway. The court stated that the fact of the commercial
importance to the public of the lumber furnishes the grounds upon
which the private rights of the owners of the bed of the river
are made subject to the rights of the public. The court stressed
that the stream must be shown to be capable of transporting
valuable floatage and that this portion of the Suwannee River had
It is valuable to closely examine the facts of this case because
it has been misconstrued as meaning that any water body that can
float a log is navigable. It is clear that the court in Bucki v.
Cone premised the determination of navigability not on the
condition of the river to be able to float logs but on its
importance to the locality to transport valuable commercial
Another factor effecting the legal determination of navigability
addressed in Bucki v. Cone is whether or not the water body was
meandered. Meandering was performed by the original government
surveyors and is the traverse of the margin of a permanent
natural body of water. Meander lines are found on the original
Generally, meander lines are not boundaries defining the area of
ownership of lands adjacent to the water, although in some cases,
they have been accepted as the boundary. Usually, the
significance of a meander line in legal proceedings is that a
meandered water body is presumed to be navigable. Conversely, a
water body that was not meandered is presumed to be non-
navigable. Odom v. Deltona Corporation, 341 So. 2d 977 (Fla.
This presumption is not conclusive and can be overcome by
evidence to the contrary. However, it does place the burden of
proof on the party attempting to overcome the presumption.