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Use of Stream Bank to Scout and Portage Hazards

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Historically, the law of Texas, both in statute and in common law, has protected public rights relating to navigable streams. Although until recently there appeared to be no Texas statute or case specifically dealing with scouting or portaging, several aspects of Texas law seem to support the proposition that a portage right is a necessary corollary to the fundamental right of navigation. The authorities set out below support the principle that when a person floating a navigable stream encounters an obstruction like a log jam or a dam, or some other potential safety hazard, the navigator has a limited privilege to go onto adjoining private land to scout and if necessary make a safe, reasonable portage. The intrusion on private land should be minimized.

Other states that have addressed the issue concur in recognizing a portage right. Of course, as is sometimes the case, particular or peculiar fact situations may alter the application of general concepts in specific instances. A recent Texas statute acknowledges that stream users do portage over or around barriers and scout obstructions, and it precludes such use from creating a prescriptive easement over the private property.

There is a fundamental distinction between using private land to portage around an obstacle and using private land as a short cut to get to or from a river. In Texas one has no right in general to cut through private land simply for convenient access to or from a stream.

Portaging Obstructions as a Traditional Part of Navigation

Obstructions have always been a natural part of streams. As the waters flow through the land, streams become obstructed by fallen trees, log jams, rapids, sand bars, shoals, etc. Historical accounts of navigating streams often mention the hazards and portages encountered. See, for example, Kenneth G. Roberts and Philip Shackleton, The Canoe, a History of the Craft from Panama to the Arctic (1983). Thus, portaging has always been a part of navigation.

The U.S. Supreme Court has explained that under the federal test of navigability (involving capacity for use in interstate commerce) the presence of a portage does not defeat navigability:

Navigability, in the sense of the law, is not destroyed because the water course is interrupted by occasional natural obstructions or portages; nor need the navigation be open at all seasons of the year, or at all stages of the water.
Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 41 S.Ct. 409, 412 (1921).

As discussed elsewhere, Texas law has long recognized the public’s navigation right, a right of free passage along navigable streams. Texas law disfavors obstructions to navigation. The right to navigate would be meaningless if the presence of a single hazard—a fallen tree, for example—could legally “cut off” navigability.

Advice to Scout and Portage...

In National Publications

In Local Publications

Texas Rivers and Rapids, a commercial guide describing commonly used waterways, has been through several editions over the past three decades. It advises a number of portages on various streams. Volume II, published in 1973, includes this advice in a discussion of river currents: “Never run a dam or drop unless absolutely necessary.” The book cautions, for example, of a portage along the Clear Fork of the Trinity River near Fort Worth:

Roll’s Dam is approximately ten feet high and should not be run. It is an easy portage on the right bank adjacent to the dam at low water levels.

At high levels, the portage is longer and must be started on the left bank quite a way upstream from the dam. Use the left bank portage only when necessary because you will have to travel on private property behind a house.

Volume VI of Texas Rivers and Rapids, published in 1983, warns of particular hazards potentially requiring portage on a number of rivers, including the Brazos, the Colorado, the Frio, the Guadalupe, the Leon, the Neches, the Pecos, the Rio Grande, the San Marcos, and the Trinity. It also cautions of log jams on several streams.

The Big Bend Natural History Association in cooperation with the National Park Service publishes guides to floating the Rio Grande, not only within Big Bend National Park but also downstream along the “Lower Canyons.” The Lower Canyons guide advises boaters of several locations where challenging rapids should be scouted or portaged, including using private land along the Texas side of the river.

The Lower Colorado River Authority has published a guide to the Lower Colorado, from Austin to the Gulf of Mexico. In its discussion of public and private river rights, the guide contains the following passage (p. 13):

Along the Colorado River, almost all the land outside of the riverbed is privately owned. However, if a boater encounters a hazard like a log jam, low-water dam or some other obstruction, the boater may get out and scout to see whether there is a safe route through and portage if boating would be dangerous. The intrusion on private land should at all times be minimized.

The Greater New Braunfels Chamber of Commerce distributes the “Guadalupe River Scenic Area Information Map and Pamphlet.” It highlights the time-honored advice, “WHEN IN DOUBT STOP AND SCOUT.” The map of the Lower Guadalupe marks the locations of dangerous falls, rapids, and dams, as well as the low bridge at Gruene. It also states, “DO NOT RUN HORSE SHOE FALLS.”

The City of New Braunfels has posted maps of the popular Comal River at several public access points. Those maps note two spots where “Safe By-Pass Steps” are available to allow passage around rapids. One spot is just above the tube chute, and the other is just above the old Camp Warnecke dam (now adjacent to the Schlitterbahn water park).


Citations

Use of Stream Banks Under Civil Law

The civil law (the law of Spain and Mexico, and the early days of the Republic of Texas) recognized the right of a navigator to use the banks, even though privately owned, for various purposes associated with navigation. The civil law still applies to particular land grants. The permitted activities set out in law 6 of title 28 of the third Partida (quoted below) amount to what might be considered today as fairly substantial uses. It is difficult to imagine that a generally less intrusive use involved in a portage would be forbidden.

Law 6. That Every One may Make Use of Ports, Rivers, and Public Roads. Rivers, ports, and public roads belong to all men in common; so that strangers coming from foreign countries may make use of them, in the same manner as the inhabitants of the place where they are. And though the dominion or property (senorio) of the banks of rivers belongs to the owner of the adjoining estate, nevertheless, every man may make use of them to fasten his vessel to the trees that grow there, or to refit his vessel, or to put his sails or merchandise there. So fishermen may put and expose their fish for sale there, and dry their nets, or make use of the banks for all like purposes, which appertain to the art or trade by which they live.

Statutory Acknowledgement of Portaging and Scouting

Parks & Wildlife Code § 90.007. Landowner Rights.

(a) A prescriptive easement over private property cannot be created by recreational use of a protected freshwater area, including by portage over or around barriers, scouting of obstructions, or crossing of private property to or from a protected freshwater area.
(b) Nothing in this section shall limit the right of a person to navigate in, on, or around a protected freshwater area.

The Common Law

Since January 20, 1840, the common law has been included as part of the rule of decision for Texas courts. The pertinent statute now reads:

“The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state.”
Texas Civil Practice and Remedies Code § 5.001.

As explained by the Texas Supreme Court, this statute is not an adoption of the common law as it was in force in England in 1840, but rather of the common law as declared by the courts of the different states of the United States. See Grigsby v. Reib, 153 S.W. 1124, 1125 (Tex. 1913).

Recognition by Other States

A right to portage has been explicitly recognized in a number of states in a variety of contexts. For example:

Montana. The Supreme Court of Montana in construing Montana law has stated:

Therefore, we hold that the public has a right to use state owned waters to the point of the high water mark except to the extent of barriers in the waters. In the case of barriers, the public is allowed to portage around such barriers in the least intrusive way possible, avoiding damage to the private property holder’s rights. ... [T]he right to portage must be accomplished in the least intrusive manner possible.
Montana Coalition for Stream Access v. Curran, 682 P.2d 163, 172 (Mont. 1984).

Ohio. The Ohio Attorney General has concluded:

The reasonably necessary entry of a boater upon land adjacent to a dam obstructing a navigable watercourse in order to portage his boat around the dam by the nearest practical route and in a reasonable manner constitutes a privileged intrusion on the property of the landowner.
Op. Ohio Att’y Gen. No. 80 094 (1980).

Nebraska. A Nebraska statute allows an affirmative defense to a criminal trespass charge if:

The actor was in the process of navigating or attempting to navigate with a nonpowered vessel any stream or river in this state and found it necessary to portage or otherwise transport the vessel around any fence or obstructions in such stream or river.
Neb. Rev. Stat. § 28-522.

New York. Under New York law, the beds of most navigable streams are privately held, subject to the public’s rights. A recent court opinion rejected a plaintiff landowner’s attempt to obtain a summary judgment for trespass against boaters who had scouted and portaged in the bed of a stream considered navigable by the court:

Pursuant to the public trust doctrine, the public right of navigation in navigable waters supersedes plaintiff’s private right in the land under the water. ... Plaintiff contends that the public right of navigation is limited to riding in boats and does not include the right to get out of a canoe and walk in the bed of the river to guide the canoe through shallow water, avoid rocks or portage around rapids. According to plaintiff, the absence of any case law specifically including such activities in the public right of navigation establishes that no such right exists. Defendants contend that the public right of navigation includes the right to engage in reasonable activities that are incidental to and necessary for navigating the river. The absence of case law, according to defendants, is the result of no one ever having previously claimed that the public right of navigation did not include the use of the river bed to portage or engage in other activities incidental to and necessary for navigation. We agree with defendants.
Adirondack League Club Inc. v. Sierra Club, 615 N.Y.S.2d 788, 792 (A.D. 3 Dept. 1994).

On appeal to New York’s highest court, the Court of Appeals stated:

[T]he existence of occasional natural obstructions do not destroy the navigability of a river ... . Following naturally from this proposition is that in order to circumvent these occasional obstacles, the right to navigate carries with it the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands ... .
Adirondack League Club Inc. v. Sierra Club, 684 N.Y.S.2d 168, 173 (Ct.App. 1998).

Texts Summarizing the Common Law

Legal texts summarizing the common law typically contain statements of legal principles supporting portaging. For example, the American Law Institute has recognized a limited privilege by a navigator to enter the otherwise private land next to a river:

“... The privilege of navigation carries with it the ancillary privilege to enter on riparian land to the extent that this is necessary for the accomplishment of the purpose of the principal privilege.”
Restatement (Second) of Torts § 193, Comment d (1965).

The portage right is a specific application of this privilege. Of course, a navigator’s right does not extend to a general sort of wandering or sightseeing upon a pasture near the river, because such wandering or sightseeing on private land is not necessary to carry out the navigation right.

A Riparian or Dam Builder's Permit Does Not Preclude Navigation

A Texas case has explained that the state’s grant of permission to dam a navigable stream does not include permission to preclude navigation:

It gave no title to the water, but only the right to divert and use so much of the water appropriated as might be necessarily required when beneficially used for the purpose for which it was appropriated. ... It gave no title to the fish in the water of the lake, no exclusive right to take the fish from the lake, and no right to interfere with the public in their use of the river and its water for navigation, fishing, and other lawful purposes further than interference necessarily result[ing] from the construction and maintenance of the dams and lakes in such manner as reasonably to accomplish the purpose of the appropriation.
Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441, 446 (1935).

As to private impairment of navigation, a recent Texas case stated:

The title of owners of beds of streams by the State or landowners does not determine property rights in the water. Assuming that the property owners here involved owned the stream beds, this does not deprive the State from reasonable regulations and control of navigable streams. A property owner, including holders of riparian rights, cannot unreasonably impair the public’s rights of navigation and access to and enjoyment of a navigable water course.
Adjudication of Upper Guadalupe Segment of Guadalupe River Basin, 625 S.W.2d 353, 362 (Tex.Civ.App. San Antonio 1981), aff’d, 642 S.W.2d 438 (1982).

The Criminal Law

There seems to be no reported case in Texas involving a prosecution for trespass for a navigator’s portage. The “necessity defense” could be asserted by a navigator charged with criminal trespass during a portage. Texas Penal Code § 9.22 (see below) allows conduct which would otherwise be a crime to be considered justified if three conditions are met. Note that this defense requires a weighing of harms. Assuming there is no special harm to the private property, going onto private land for a reasonable portage would fall within this defense.

Penal Code § 9.22. Necessity.

Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prescribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Penal Code § 1.07(a)(25):

“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

Consideration of the Navigation Right as an Easement

In various jurisdictions the navigation right has sometimes been compared to or referred to as an easement. A Texas legal text has stated the following about easements in general:

Every easement carries with it the right to do such things as are reasonably necessary for the full enjoyment of the easement, and the extent to which incidental rights may be exercised depends on the object and purpose of the grant and whether such rights are limited by the terms of the grant. However, the exercise of the right must be such as will not injuriously increase the burden on the servient owner, and there may be no use that will interfere with the servient owner’s free enjoyment of that part of the property not affected by the easement. The owner of an easement and the possessor of the servient estate are to exercise their respective rights and privileges in a spirit of mutual accommodation.
31A Tex.Jur.3d Easements & Licenses in Real Property § 64 (1994).

Common Law as the Perfection of Reason

It has been asserted that the common law is “the perfection of reason.” See Welder v. State, 196 S.W. 868, 870 (Tex.Civ.App. Austin 1917, writ ref’d). In light of the fundamental right of public navigation, it is not reasonable to expect a navigator to risk life, limb, or property by attempting to navigate through a hazard. Past and present Texans have used their common sense to scout and if necessary portage obstructions along Texas rivers.


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