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7 Tennessee Attorney General Reports and Opinions 1 (1977-1978)

handle is hein.sag/sagtn0169 and id is 1 raw text is: STATE OF TENNESSEE OFFICE OF TilE ATTORNEY GENERAL 450 JAMES ROBERTSON PARKWAY NASHVILLE. TENNESSEE 37219 BROOKS McLEMORE ATTORNEY GENERAL & REPORTER OPINION NO. 1 TO: Dirctor Real Property Management Division DATE: June 10, 1977 QUESTION 1) Who owns these navigable streams? 2) What is the definition of a navigable stream? 3) How does the previous findings affect oil and gas leases on the New River? OPINIONS AND ANALYSES Before attempting to respond to your questions, it should first be noted that New River is a fork of the Cumberland River. Together with Clear Fork, the New River forms the South Fork of the Cum- berland River, which flows northwardly into Kentucky. I Of primary importance is the question of what is a navigable stream or waterway. This has been the subject of many cases and the definition of same would appear to be assuming ever-broadening dimensions. This question is critical inasmuch as the answer determines ownership in the bed of the applicable waterway. Tennessee recognizes a difference between those streams which are navigable in the legal sense and those which are navigable as commonly accepted. Where navigable in the technical, or legal, sense, the State of Tennessee holds in public trust the soil covered by the stream as well as the body of water itself. Goodwin v. Thompson, 83 Tenn. 209. However, where a stream is navigable only in the ordinary sense, the riparian owner owns to the middle of the waterbed, unless of course he has title to both banks of the stream, in which case he would own all the soil beneath the waterway. Cunningham v. Prevow, 192 S.W. 2d 338. By the same token though, the public still has a right to the use and enjoyment of the waterway for the purposes to which it is navigationally susceptible. Webster v. Harris, 111 Tenn. 668. Therefore, it is necessary to draw the distinction between streams which are legally navigable and those which are navigable in the ordinary sense, as only in the former instance does Tennessee hold in public trust the bed of the waterway. U Among other cases, State v. West Tennessee Land Company, 127 Tenn. 575, provides much in- sight into the definition of a navigable waterway. The Tennessee Supreme Court held the distinguish- ing factor between the two classes of navigable streams was capacity. The depth, width and volume of the waterway must be sufficient to support useful commerce. It does not matter that the waterway is not currently being used as a public highway if it nonetheless has the capacity to support same. This case and others would also hold the waterway must be navigable both in an ascending and descending manner. Miller v. State, 124 Tenn. 293. The Supreme Court also noted that a waterway's connection with other streams that flow out of state have a bearing on whether the stream in question is a navigable waterway of the United States, pursuant to the Rivers and Harbors Act of 1899. The federal cases cited therein contain the same def- initions for navigability, the only distinction being the interstate, rather than the intrastate, nature of the waterways. The Daniel Ball, 77 U.S. (10 Wall.), 557; The Montello, 87 U.S. 430.

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