BLAIN & CONE, P. A.
L. M. BUDDY BLAIN 202 MADISON STREET
THOMAS E. CONE. JR. TAMPA,FLORIDA 33002
HALLIE S. EVANS (813) 223-3888
DOUGLAS P. MANSON FAX (813) 228-6422
FREDERICK T. REEVES
SUSAN K. SCARCELLI January 6, 1989 OF COUNSEL
JOHN P. CORCORAN,JR.
RE: Navigable Waters
A simple definition to determine when waters are navigable
quickly becomes very complicated.
Waters are navigable by reason of their size, depth and other
conditions if they are in fact capable of navigation for useful
public purposes. They are navigable in fact when they are used,
or are susceptible to 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. This was first stated by the United States Supreme Court
in 1870. Many subsequent Supreme Court cases have adopted this
definition as the basic federal test in connection with the title
to sovereignty submerged lands.
From a land title standpoint, navigability is important.
Submerged beds of water bodies are subject to ownership by the
State of Florida as sovereignty submerged lands, only if those
water bodies are navigable. The test for navigability is applied
to the water body for the date upon which sovereign ownership was
transferred from the federal government to the state. Therefore,
the controlling date is March 3, 1845.
Since this is an historic determination the actual determination
of navigability can be quite difficult.
In reviewing case law there are many different interpretations
given to navigability. However, the general theme that runs
through all these cases relating to Florida is that the water
body must provide some common purpose of transportation of goods.
In 1906 the Florida Supreme Court determined that the bed of 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. In that case the court held that 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. The title to the land under such water was held by
the state, in its sovereign capacity, in trust for the lawful
uses by all of the people of the water and the land, subject to
lawful governmental regulation of such uses.
The court went on to state that 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 the water.
These same principles were followed three years later when the
Supreme Court considered navigability of a cove subject to ebb
and flow of the tide. The court stated that the 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 public purposes. However, 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.
In 1927 the Florida Supreme Court stated that navigable waters
include 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 whether the waters are
navigable during the entire year or not.
In 1956 the Florida Supreme Court, in attempting to clarify
earlier holdings, quoted a case between Oklahoma and Texas where
the United States Supreme Court held that it was a settled rule
in this country 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 travel and travel on
The Florida Supreme Court then discussed the characteristics of a
water body that was not navigable and held that Cromartie Arm of
Lake lamonia in Leon County was not navigable. The court
explained that Cromartie Arm in its natural or ordinary state is
grass or buttonwood prairie, traversed by a shallow stream or
strand. Normally, its width is from four to ten feet, and its
depth is shallow, not exceeding two feet at best. It is
difficult to push a flat bottomed row boat over it. The court
stated that one witness had 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 approximately one
and one-half miles long and the stream or strand connects some
pot holes or gator burrows ranging in size from that of the Leon
County courtroom to an acre. Except during flood stage, the
stream or strand could not be traversed with a "kicker" but it
could be negotiated with a pole.
In one of the earliest Florida cases (1889) the Florida Supreme
Court held that the Suwannee River at and above White Sulphur
Springs, in Hamilton County, was a navigable stream, stating that
all rivers 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
The court in this earlier case stated that a stream with
sufficient capacity and volume of water to float to market the
products of the country answers 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.
The court explained that even though the stream may not be
adapted to the use of vessels, and is only fit for floating logs
or rafts, yet if it is 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 it has such
capacity for a sufficient portion of the year to make it useful
as a public highway, it would be subject to the easement, and
thus would be considered to be navigable.
This does not mean that any water body is navigable merely
because it is large enough to float a single log during some part
of the year. In order to be considered navigable there must be a
use for the floatagee" as well as a capacity to so use it.
It is unfortunate that this explanation cannot be more explicit.
The attached memo contains more details and citations, as well as
exact quotes from some of the leading cases.
Personally I like my Random House College Dictionary definition
better. It defines navigable as: "1. deep and wide enough to
afford passage to ships. 2. capable of being steered or guided,
as a vessel, aircraft, or missile."
L. M. Buddy Blain