Opinion
October 17, 2001
72-NAVIGABLE WATERS 90-B-3 PUBLIC LANDS-Public Private Domains, Distinctions 172-WATERS WATER COURSES 172-B-WATERS-Natural Resources
Riparian owner owns the bank of navigable rivers as defined in Article 456 of the Civil Code, to ordinary low water, and may exercise the rights of ownership subject to the servitude of public use for purposes incidental to the navigable character of the river and its enjoyment as an avenue of commerce. Use of the bank must be for purposes incidental to navigation and the navigable character of the stream, and does not include sliding down the bank, digging chutes or other recreational activities unrelated to the navigation servitude.
Ms. Patricia C. Cole Assistant District Attorney Thirty-Third Judicial District P.O. Box 839 Oberlin, LA 70655
10 In Pizanie v Gauthreaux, 138 So. 650 (La. 1931), the Supreme Court held that the riparian owner was entitled to the use of the narrow strip of land between the bank of the navigable stream and land appropriated by the public for road purposes, at 652. In Ballard v. Mook, 550 So.2d 1208 (4th Cir. 1989), the Court of Appeals, citing Pizanie, held that where waterfront property was subject to a highway servitude which ended approximately twenty (20') feet short of the bayou's edge, the riparian owner is entitled to use of the narrow strip between the road and the bank of the stream left unappropriated for use as the highway servitude, at 1210. The Court also cited Ward v. Board of Levee Com'rs of Orleans Dist., 92 So. 769 (La. 1922), holding that "The space between the public road and the levee is private property, to the exclusive use of which the owner is entitled", at 775.
OPINION NUMBER 90-663
January 24, 1991
Honorable James David Cain State Representative District 32 P.O. Box 427 Dry Creek, LA 70367
Dear Ms. Cole:
This is in response to your request for an opinion concerning public use of river banks.
You ask whether or not the public has the right of use of the bank of a navigable river for purposes such as diving into the river for swimming or digging chutes into the bank to slide into the river for swimming. Additionally, you ask, what, if any, liability might attach to the riparian land owner for injuries sustained by canoers who are diving or sliding into the river from the bank to swim. Finally, you ask whether the bank includes the bluff above the area contained between ordinary high and low water on a navigable river.
It would appear that the problem faced by riparian owners arises out of a public perception that river banks may be used for all purposes, and not just those incidental to navigation. This area has been the subject of numerous prior opinions of this office, and they have reached the same general conclusions.
Article 456 of the Civil Code provides that river banks are private, but subject to public use, as follows:
The banks of navigable rivers or streams are private things that are subject to public use.
The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. Nevertheless, when there is a levee in proximity to the waters, established according to law, the levee shall form the bank.
Therefore, while the bank is privately owned, it is subject to a servitude of public use for purposes incidental to navigable character of the river and its enjoyment as an avenue of commerce. See State v. Richardson, 140 La. 329, 72 So. 984 (La. 1916). For a more expansive treatment of this subject, see also Atty. Gen. Op. 96-257, copy attached.
The jurisprudence of our state has clearly restricted the use of river banks to purposes incidental to navigation and not other unrelated uses. For instance, see the following: Pittsburgh Southern Coal Co. v. Otis Mfg. Co., 249 F. 667 (US 5th Cir. 1918), holding that the rights which the public in Louisiana has to use the banks of navigable rivers does not entitle one other than a riparian proprietor to appropriate part of the bank to his private use; Chinn v. Petty, 163 So. 735 (2d Cir. 1935) holding that while the public has the right to the use of the banks of a navigable stream for purposes incidental to navigation, it has no right to appropriate such land to private use for the erection of permanent dwellings; Delta Securities Company v. Dufresne, 181 La. 891, 160 So. 620 (La. 1935) holding that the use of the bank must be incidental to the use of the river, and the public does not have unrestricted access to the bank for all purposes, such as camping or hunting; Tenneco Inc. vs. Oil, Chemical Atomic Workers Union, 234 So.2d 246 (4th Cir. 1970), holding that picketing on the levee was a private use by one not a riparian owner of the property and was not incidental to commerce or navigation on the river and therefore not protected by statutes affording the public use of banks of navigable rivers or streams; and Parish of Jefferson v. Universal Fleeting Company, 234 So.2d 88 (4th Cir. 1970), holding that the servitude of public use placed upon the riparian owners of batture land is limited to uses incidental to the nature and navigable character of the waterway washing such land.
Consequently, diving from the bank, sliding down the bank, digging chutes in the bank to slide into the river and other such recreational activities are not truly incident to navigation and to the navigable character of the stream and its enjoyment as an avenue of commerce. Such uses are therefore not sanctioned by the Civil Code as against the riparian owner of the bank. Said another way, the use of the bank pursuant to the servitude of public use provided by the Civil Code is not "for the use of the public at large for all purposes, but merely for purposes that are "incidental" to the navigable character of the stream and its enjoyment as an avenue of commerce." See State v. Richardson, and Chinn v. Petty, supra.
This opinion is consistent with prior opinions of this office, including Atty. Gen. Op. June 11, 1938 to Honorable Newt V. Mills, member of Congress; Atty. Gen. Op. Nos. 82-102, 87-526, 88-531, 90-663 and 96-257.
In consequence of finding that the proposed uses of the bank are not within the servitude afforded the public, it is not necessary to discuss the liability of the riparian land owner under the question as posed. However, you are referred to the Louisiana Recreational Use statutes, found in the Louisiana Revised Statutes as La.R.S. 9:2791 and 9:2795 as regards liability of the landowner.
Your final question asks whether the bank includes the bluff above the area outside of the bank above ordinary high water, which, as phrased, we answer in the negative. See Civil Code Article 456, supra.
We hope this opinion is of assistance to you and if we may be of further help, please advise.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: __________________________ GARY L. KEYSER Assistant Attorney General
RPI/GLK/tp
Enc.
OPINION NUMBER 96-257
September 5, 1996
Honorable Herman Ray Hill State Representative District 32 529 Tramel Road Dry Creek, Louisiana 70637
Dear Representative Hill:
This is in response to your request for an opinion of this office concerning public use of navigable rivers and their banks.
Your questions are stated as follows:
1. Can the public fish from the banks of a navigable river or while wading in such river without the necessity of first obtaining permission from the property owner of the river banks?
2. Would such fishing be considered trespassing under current state law?
3. Under the same and other applicable provisions of present law, can the public be denied access to a navigable river by the property owner of the river banks?
4. If there is a public road on the property, to what extent, if any, can the property owner post the land and prevent access to the river?
5. Does existing law applicable to questions 1, 2 and 3 above contain language conflicts or ambiguities as interpreted by the courts that could be addressed through proposed legislation?
While your questions are specifically stated, a succinct response and explanation of the several different legal issues is made difficult because of the rules of law provided by the Civil Code and jurisprudence of our state. A discussion is also complicated by recent legislative revisions which conflict with commonly perceived notions of the public based upon historic practices which do not have universal application to all water bodies and which, in some measure, no longer have support in the law.
One of the these misplaced perceptions is that the banks of all naturally navigable water bodies which are currently navigable in fact are free and open to public usage for purposes such as fishing, hunting, camping, wading and other recreational activities. As in the case where the public is allowed to hunt in privately owned woods and timberland, there is a perception that the public has the free use of the banks of a body of water based upon rights created over time or by operation of law. That is, there is a public expectation by those who have hunted in a particular area or fished from the banks of a particular body of water that there is a continuing right to do so, even without permission of the riparian owner.
An effort will be made to briefly explain the legal underpinnings of Louisiana law and the rights, duties and obligations which flow from the law and jurisprudence.
Consideration will first be given to the issue of the right of the public at large to have access to rivers and streams. In this regard, Article 455 of the Louisiana Civil Code presently provides that "private things may be subject to public use in accordance with law or by dedication."
Thereafter, Article 456 of the Civil Code provides that river banks are private, but subject to public use, as follows:
The banks of navigable rivers or streams are private things that are subject to public use.
The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee shall form the bank.
Prior to the amendment of Article 455 by the Legislature in 1978, the Civil Code contained emphatic language declaring the use of banks of navigable rivers and streams to be "public" in nature, along with illustrations of the uses to which the public might make of the bank, including the "right fully to bring his vessels to land there, to make fast the same to the trees which are here planted, to unload his vessels, to deposit his goods, to dry his nets, and the like. Such uses of the bank have been recognized since pre-statehood times as incident to the navigable character of rivers and streams, and imbedded in the Louisiana Civil Code by its redactors from the inception.
These provisions derive from the restatement of Article 455, which provided as follows prior to its 1978 amendment:
455 Navigable rivers and streams — Banks — The use of the banks of navigable rivers or streams is public; accordingly every one has a right freely to bring his vessels to land there, to make fast the same to the trees which are there planted, to unload his vessels, to deposit his goods, to dry nets, and the like.
Nevertheless the ownership of the river banks belongs to those who possess the adjacent lands. (Emphasis ours)
In its amendment of the article, the Legislature appears to have greatly reduced the rights of the public to the use of the bank, and the illustrative uses for the public at large were eliminated. The revision comments to the article now state that the use is not "for the public at large for all purposes, but merely for purposes that are "incidental" to the navigable character of the stream and its enjoyment as an avenue of commerce'. See Art. 456, Comment (b). This would seemingly include the previously prescribed uses, though they are no longer so stated in this article, thereby bringing some uncertainty to this area of law as far as particular activities are concerned, such as docking a vessel at the bank for purposes of loading or unloading, for the drying of nets, the making of repairs and similar activities related to the navigable character of the stream. There is no known post-1978 jurisprudence which interprets the re-stated articles of the Civil Code insofar as these particular uses are concerned.
The uncertainty surrounding public use of the river bank may be illustrated by reference to comments made on the subject by doctrinal authorities and from the 1978 revision comments, to wit.
"The Louisiana Civil Code may be taken to mean that the general public has a right of free passage over the banks of navigable rivers in their natural state."
Yiannopoulos, 2 La. Civ. Law Treatise § 85, 178 (3d Ed. 1991); and
"The right to dry nets is practically meaningless today in most of Louisiana's navigable rivers. Vessels may be temporarily moored to the banks of navigable rivers, but there is strong doubt that this may be done "freely" as Article 455 (1870) declares. The rights of the general public to unload vessels and to deposit goods may be clearly exercised in public landings or other facilities, but it is questionable whether these rights may be exercised in all banks."
Revision Comment (b), Art. 456
Thus, the public may be legally entitled to free passage over the banks of a navigable river, and to use the banks for traditional purposes related to the navigable character of the stream, as provided by law, but may be prohibited as a practical matter from doing so by riparian landowners exercising control of the banks for their own purposes.
As stated in the text above, the illustrative uses of the bank included within Article 455 of the Civil Code as it existed prior to 1978 were eliminated, along with the language making the use of the bank public in nature. However, other articles were also substantially revised. The language of Articles 452 and 453 received revision, and the language pertaining to the use of the seashore (Art. 452) and the definition of public things (Art. 453) were combined so as to provide that the public has the "right to fish in the rivers, ports, roadsteads and harbors, and the right to land on the seashore to fish, to shelter himself, to moor ships, to dry nets and the like, provided that he does not cause injury to the property of adjoining owners". As in the case of Article 455 prior to the 1978 revision, public rights were greatly reduced in the revised Article 452, since prior to revision, public use of the seashore included the right of the public to "build cabins thereon for shelter, and likewise to land there, either to fish or shelter himself * * * from the storm, to moor ships, to dry nets and the like * * *". Following the revision, the right of the public to "build cabins, thereon for shelter" was eliminated, a result which probably aids the public more by preventing usurpation of the seashore by a few, as balanced against a true need for occasional shelter from the elements through such means by the unlucky mariner.
With respect to the question of fishing from the banks or wading in the river without obtaining permission from the riparian owner, the courts have found that under present law, hunting and fishing from the bank are not uses which are incident to the navigable character of the stream and, therefore, not rights pertaining to the bank servitude. As a consequence, the public at large is not free to utilize the banks of a navigable river or stream for hunting, fishing or recreational purposes without permission of the owner.
The Courts have not squarely addressed the basic issue of the extent of the bank servitude as relates to navigational purposes and commerce, and the most recent cases deal with hunting, fishing and crawfishing on batture, overflowed, and swamplands. See Warner v. Clark, 232 So.2d 99 (2nd Cir. 1970) writ denied 233 So.2d 565; Edmiston v. Wood, 566 So.2d 673 (2nd Cir. 1990); State v. Baras, 615 So.2d 285 (La. 1993). See also, C.C. Art. 456 (1978 revision). Yiannopoulos, La. Civil Law Treatise, Vol. II, Property, Sections 56-61, 85 (3rd Ed., 1991). In the Warner case, the legal issue concerned lands adjacent to and between the Mississippi River levee and the river itself, including various small lakes and ponds, used by the public for hunting and fishing. The Court held that the right to hunt and fish on these lands was unrelated to the navigable character of the Mississippi River and, thus, impermissible without consent of the owner. In Edmiston, a similar dispute concerned private lands overflowed at high water adjacent to Yucatan Lake, a cut-off loop of the Mississippi, utilized by the public for duck hunting when the back waters of the Mississippi flooded fields used for hay and agricultural crops. Again, the Court held that such privately owned land did not become subject to public use merely by reason of overflow at times of high water. Baras concerned a criminal prosecution of crawfisherman trespassing on privately owned swamplands overflowed annually by high water within the Atchafalya Basin, with the Court reaching the same conclusion as in the other cases: private lands subject to overflow are private things.
As to the second part of question No. 1, can the public wade in the river without the necessity of obtaining permission from the property owner of the riverbanks, the Civil Code provides that the ownership of public things include the "running waters, the waters and bottoms of natural and navigable water bodies, the territorial sea, and the seashore".
Art. 450. Public things.
Public things are owned by the state or its political subdivisions in their capacity as public persons.
Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.
Public things that may belong to political subdivisions of the state are such as streets and public squares.
In the case of naturally navigable water bodies, the public has a perfect right to use the water and water bottoms for all traditional purposes related to navigation and to include both recreational and commercial activities, such as fishing, swimming, wading, tubing, crabbing and similar pursuits.
As to non-navigable waters, the public has a right of access and use to "running waters" pursuant to the cited provisions of law, Civil Code Article 450. The Louisiana Supreme Court has held that while "public things that belong to the state are such as running waters, * * *", they may its use by the general public. In Chaney v. State Mineral Board, the Supreme Court analyzed the juxtaposition of private things, such as the river bank, which is subject to the public servitude of use, as discussed above, and public things. The Court concluded that while a non-navigable river or stream is a private thing, belonging either to the riparian owner or the state, the water which traverses the private bed is a public thing and subject to public use which may not be interfered with or prevented by the riparian owner. The language of the Supreme Court in Chaney was fairly explicit; nonetheless, in later decisions other courts have avoided discussion or application of the stated principle of law recited by our state's highest Court. Even in State v. Baras, footnote #4, there is no reference to the prior decision. Also, Blanchard v. Williams, Inc., U.S. District Court, W.D. of La., Civil Action No. 92-0941, while citing Baras, avoids Chaney. Also, Dardar v. Lafourche Realty, 985 F.2d 824 (5th Cir. 1993), makes no mention of Chaney, although provided with an excellent opportunity to do so. Of course, in these cases, the relevant issues dealt with navigational rights as opposed to the more limited issue of the use of running waters.
In Chaney, the Louisiana Supreme Court held:
On the one hand, the bed and bottom of a non-navigable river or stream is a private thing belonging either to the riparian owners or the state (depending upon whether it was originally non-navigable or navigable — see Wemple v. Eastham, 150 La. 247, 90 So. 637 (1922). On the other hand, the water which traverses that private bed is a public thing. ("Public things that belong to the state are such as running waters, . . ." La.C.C. art. 450). As such, the riparian owner may use the running water for his purposes, but he may not interfere with, nor prevent, its use by the general public. La. C.C Arts. 657 and 658. Yiannopoulos, 2 La.Civ. Law Treatise § 36, 99 et seq. (2d ed. 1980). Therefore the possessor of the bed, or owner for that matter, may not fence or enclose the "land" so as to impede the use of the flowing water. Chaney v. State Mineral Board, 444 So.2d 105, 109 (La. 1983).
The United States Code, 28 U.S.C. 1652, provides that the laws of the states shall be regarded as the "rules of decision in civil actions in the courts of the United States, in cases where they apply", except where the constitution or treaties of the United States or Acts of Congress require otherwise. This means that the federal courts are required to follow the rules of law of the states within which they sit as the rules of decision in cases which come before them.
In Chaney, a possessory action by private parties against the State Mineral Board and State of Louisiana, the Supreme Court addressed the issue of whether the public could undertake activities such as fishing, swimming, wading, tubing, stone skimming, digging for clams and even baptizing church members in the bed of a formerly navigable but currently non-navigable river, the Amite. Finding that the Amite in this segment was non-navigable, the Court concluded that it had entered the private ownership of the State, as distinguished from the public domain, but nonetheless that "the water which traverses that private bed is a public thing" under Civil Code Article 450, at page 109. To this extent, the case would seem to sanction the use of running waters even on a privately owned non-navigable river or stream, whether owned by the State or private persons. Thus, no permission of the owner would seem to be required unless the area was clearly marked by fences, signs or monuments as being private and posted, as discussed by the Court.
As regards Question No. 2 above, whether fishing from the banks of a navigable river may be considered trespassing under current state law, we must answer in the affirmative if such fishing takes place on privately owned banks. As discussed above, hunting and fishing activities on the banks are not incident to the navigable character of the stream as determined by all known court decisions to this time, and the historic language of the previously existing Article 455 making the banks of navigable rivers and streams "public", has been eliminated.
Some cases have squarely held that "public use" of the banks means precisely that, to the extent that even a riparian landowner is forbidden to make such works on the bank or to so obstruct it as to prevent the exercise of public rights to the bank itself. For instance, see Town of Napoleeonville v. Boudreaux, 142 So. 874 (1st Cir. 1932), holding that an adjacent owner could not use the bank of the navigable stream within the town as private property for the erection of a building. See Yiannopoulos, 2 La. Civ. Law Treatise § 34, 106 et seq., (2nd ed. 1980) Other cases have reached varying results, depending upon the underlying facts, particularly with the passage of time and the increased pressure for use of the banks. See, for instance, Lake Providence Port Commission v. Bunge Corporation. 193 So.2d 363 (2d Cir. 1966).
As the Question No. 3, can the public be denied access to a navigable river by the property owner of the river banks, we must also answer in the affirmative. While the banks of a navigable river or stream are subject to the bank servitude, there is no legal duty on the part of the riparian owner to provide ingress or egress to the water unless a roadway or right-of-way has been dedicated in accordance with law.
There are certain methods by which a road may become a public road. Civil Code Article 457 provides that "a public road is one that is subject to public use". The public may own the land in which the road is built or merely have the right to use it. Public roads may become such by designation as pert of the state highway system (La.R.S. 48:191); by designation as part of the parish highway system (La.R.S. 45:471-760); or by tacit dedication to the public use by three years maintenance by a public body (La.R.S. 48:491). Additionally, a roadway may become public in nature by a statutory dedication, as in the case where a subdivision developer dedicates roads and streets in a proposed subdivision by substantial compliance with La.R.S. 33:5051, in which case ownership vests in the public. In many instances, roadways which were commenced simply by a long history of usage and ultimately continued by parish maintenance have resulted in tacit dedication to the public pursuant to La.R.S. 48:491. See, for instance, Lincoln Parish Police Jury v. Davis, 559 So.2d 935 (2d Cir. 1990); Wise v. Key, 445 So.2d 98 (2d Cir. 1984); Herring v. Guitreau, 619 So.2d 1161 (1st Cir. 1993); Moret v. Williams, 582 So.2d 975 (1st Cir. 1991). For a thorough discussion of the various modes of dedication, see Garrett v. Pioneer Production Corporation, 390 So.2d 851 (La. 1980).
It should be noted that Civil Code Article 666 provides that riparian owners are bound by law to give a public road on the border of a river or stream, and if the road be so injured or inundated by water that it is not passable, such owner must give the public a passage on his lands as near as possible to the public road without recompense therefor. R.S. 9:1251 provides that when an owner of land voluntarily, whether expressly or tacitly permits passage through or across his land soley for the purpose of providing a convenience in ingress and egress to and from waters for boating or recreational purposes, neither the public or private person shall acquire a servitude or right-of-passage, nor shall the passage become a public road or street by reason of upkeep, maintenance or work performed by any governing authority. This latter statute reaches conflict with R.S. 48:491 in situations where a roadway has become dedicated by public funded maintenance activities.
With regard to Question No. 4, whether a property owner may post land and prevent access to the river if there is a public road on the property, we must also answer in the affirmative if the public road does not traverse the private property to the water's edge. That is, we are not aware of any Civil Code, statutory or jurisprudential rule of law which would require a riparian owner to allow the public ingress and egress from a public highway to the water's edge where there is no road, public right-of-way or public passageway connecting the two. For instance, in the case of riparian farmlands traversed by a public highway, there is no duty to allow the public access across the farmlands from the highway, or even from a public road on top of a levee to the river's edge, absent compliance with La.R.S. 48:491 or one of the other methods of dedication discussed above.
As respects Question No. 5, whether or not existing law applicable to Questions 1, 2 and 3 contains language conflicts or ambiguities as interpreted by the Courts, we also answer in the affirmative.
For the reasons stated in the foregoing discussion, there is a lack of clarity in the Civil Code and jurisprudence concerning public rights of access and use of navigable rivers and streams for the various purposes discussed. As stated in Article 456 of the Civil Code, the banks of navigable rivers or steams are private things subject to public use insofar as such uses are related to the navigable character of the stream, but the bank servitude does not include hunting, fishing and similar recreational uses. While extensive legislative revision of this area has already occurred, further revision would be permissible. It is certainly clear that the practice of public fishing from the banks of navigable rivers is one of an historic nature. Thus, there is an obvious and apparent conflict between long-standing public expectations and the guaranteed but limited uses of the banks of navigable rivers provided by law. See footnote #2.
Similarly, the activities discussed in Chaney, supra, such as fishing, swimming, wading, tubing, stone skimming, digging for clams and even baptizing church members are not given unction by codal law, except to the extent that Article 450 provides that running waters are "public things" for use by the public-at-large. The public would seem to be entitled to the use of running waters of non-navigable streams as enunciated by the Supreme Court in Chaney, but this would no doubt create conflict with private riparian owners in many instances.
For these reasons, there are conflicts or ambiguities in the law which are susceptible of change or remediation by legislation. of course, this is an area of law with complex overtones and corrective or remedial legislation could be controversial in scope.
We hope ibis opinion is of benefit to you and if we may be of further assistance, please call upon us.
Yours very truly,
Attorney General RICHARD P. IEYOUB
BY: ________________________________ GARY L. KEYSER Chief, Lands Natural Resources
RPI/GLK/bb
Dear Representative Cain:
You have asked this office to advise you as to what constitutes a navigable stream or river in this state. In addition, you have asked this office to advise you as to the low and high water mark on such a waterbody.
You have further advised that because of the new trespass laws recently enacted, some people have posted the banks of streams and rivers denying access to the waterbodies and even restricting people from the use of picnic tables thereon.
Because of the nature of your inquiry, we will expand our advice to include not only the specific two (2) questions asked, but also the nature of public access to rivers and streams in this state and the publics right to use the banks thereof.
The waters and bottoms of natural navigable waterbodies, including rivers and streams, are public things owned by the state as a public person. La.Civ. Code art. 450. As such, natural navigable waterbodies are subject to public use. La.Civ. Code art. 452. A waterbody is considered to be navigable if it was capable of being utilized in its natural condition as a highway of commerce in the customary mode of trade and travel, of 1812. Ramsey River Road Property Owners Association, Inc. v. Charles E. Reeves. et al, 396 So.2d 873 (La. 1981). Whether a particular waterbody is navigable is a question of fact which must be taken on a case by case basis and there is really no way to tell whether a particular river or stream is considered navigable in law until the facts of that particular case are taken into account.
Nevertheless, it a particular river or stream is considered navigable, then the state owns the bed and bottom thereof from the ordinary low water mark on one side to the ordinary low water mark on the other side. Smith v. Dixie Oil Co., 156 La. 691, 101 So. 24 (1924). The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. La.Civ. Code art. 456.
The bank is privately owned but subject to a servitude of public use incidental to the navigable character of the river and its enjoyment as an avenue of commerce. La.Civ. Code art. 452: State v. Richardson, 140 La. 329, 72 So. 984 (1916).
Accordingly, although a river bank is subject to a public servitude, the public does not have unrestricted access to the bank for all purposes. The use of the bank must be incidental to the use of the river and it is doubtful that activity such as picnicking would be permitted. For instance, previous decisions have indicated that the public does not have the right to camp on the banks or hunt thereon. See: Delta Securities Company v. Dufresne, 181 La. 891, 160 So. 620 (1935).
Likewise, a riparian landowner may restrict access to the banks of navigable rivers and streams where the public must cross private property in order to reach the river's edge. Pizanie v. Gauthreaux, 173 La. 737, 138 So. 650 (1932).
Therefore, from our reading of the many cases rendered in this area, it is our opinion that the public may not utilize the bank of a river or stream for any activity other than activity incidental to the navigable character thereof. Nevertheless, the actual use of a navigable river or stream itself for transportation cannot be restricted by the riparian landowner(s).
Moreover, although the public has no right whatsoever to the bank of a non-navigable river or stream, it has been previously held by the Louisiana Supreme Court that the public has a right to utilize the running waters thereof and may therefore, in our opinion, traverse a non-navigable river or stream and utilize same for transportation. See: Chaney v. State Mineral Board, 444 So.2d 105 (La. 1983); La.Civ. Code art. 450.
Thus, the public has a right to utilize both navigable and non-navigable rivers and streams in this state. However, the public does. not have an unqualified right to utilize the banks of navigable rivers or streams except for purposes incidental to the navigation thereof. In addition, the public does not have a right in any case to use the bank of a non-navigable stream since that bank is a private thing not burdened with a public servitude of use.
As stated above, the bank is considered to be that area between the ordinary low and ordinary high water mark of a river or stream.
There is no precise definition of where a low water mark and high water mark are located on a particular waterbody except that where there is a levee in proximity to the water, the levee forms the bank. La.Civ. Code art. 456.
The ordinary water marks, whether high or low, are determined by gauge readings taken over a period of time and then averaged to find an ordinary or mean mark. This is done for both high and low water. In addition, many technical experts also use vegetation lines to determine where high water is located since there are many species of plants that will not grow where they are regularly inundated by high water.
These methods, commonly accepted by the court, must be taken on a case by case basis depending on the particular river or stream involved. We therefore cannot advise you regarding a set rule other than the general statements just expressed.
Consequently, ordinary low and high water marks are determined by technical study taking into account gauge readings, vegetation lines, and other methods commonly used by licensed surveyors and civil engineers.
If we can be of further service in this matter, please advise.
Very truly yours,
WILLIAM J. GUSTE, JR. Attorney General
BY: ___________________________ DAVID C. KIMMEL Assistant Attorney General
DCK/vrr
OPINION NUMBER 88-531
November 10, 1988
R.S. 49:213.1 et seq. Art. 456, La. Civil Code 45-B Environmental Affairs 45-C Environmental 72 Navigable Waters 90-B-3 Public Lands — Public Private Domains, Distinctions 172 Waters and Water Courses 172-B Waters — Natural Resources
A project involving the construction of sheet piling as a protective bulkhead and the filling of an unimproved barge slip on private property adjacent to and forming a part of the bank of Bayou Boeuf, the boundary of Louisiana's coastal zone, is legally within the statutorily defined boundaries of the coastal zone and is subject to the State and Local Coastal Resources Management Act of 1978, and a permit is required for such proposed coastal uses as defined by statute,
Mr. Raymond W. Stephens, Jr. Secretary Louisiana Department of Natural Resources Post Office Box 94396 Baton Rouge, LA 70804-9396
Dear Mr. Stephens:
This is in response to your letter of October 24, 1988, concerning the coastal use permit application submitted by Marine Shale Processors (MSP), Inc. on October 11, 1988.
According to the permit application, the proposed activity is described in paragraph 4a as follows:
Install and maintain a bulkhead and fill in an existing unimproved barge slip located on applicant's property on the north bank of the Bayou Boeuf reach of the Gulf Intracoastal Waterway (GIWW).
From a review of the application, it appears that a barge slip was dredged into the north bank of Bayou Boeuf, extending 260 feet east of the north bank of the Gulf Intracoastal Waterway. As stated in paragraph 4c of the permit application, the project does not involve dredging. However, an anchored sheet pile retaining wall will be installed across the mouth of the slip and approximately 7,600 cubic yards of fill material will be placed in the area of the previously excavated barge slip located on applicant's property. It is also stated in the Supplemental Information Section of the Coastal Use Permit Application, that "The applicant, Marine Shale Processors, Inc. (MSP), operates an industrial furnace on the north bank of the Bayou Boeuf reach of the Gulf Intracoastal Waterway (GIWW), just west of Amelia, Louisiana. This bank also forms the boundary of Louisiana's Coastal Zone. Because the facility shares a boundary with the coastal zone, this application is submitted to the Coastal Management Division (CMD) of the Louisiana Department of Natural Resources."
You state that if the proposed activity is determined to be "within the coastal zone," as defined by statute, you will be technically required to issue public notice of the application within ten (10) days of the day on which the application was received. In this connection, you have asked for an opinion of this office on three issues:
(1) What is the legal definition of the "northern bank of the Gulf Intracoastal Waterway" under Louisiana law, for purposes of coastal management regulation?
(2) If the barge slip cited in the MSP application was in existence prior to the effective date of Act 361 of 1978, did it legally become part of the "northern bank" on the effective date of the Act (Jan. 1, 1979)?; and
(3) If the barge slip cited in the MSP application came into existence on or subsequent to the effective date of Act 361, has it legally become part of "the northern bank of the GIWW" for purposes of coastal management regulation?
As stated in your request, decision-making on applications for coastal use permits is governed by the State and Local Coastal Resources Management Act of 1978, placed in the Revised Statutes as R.S. 49:213.1, et seq. Under R.S. 49:213.4 (C), the northern boundary of the coastal zone in the area of the proposed project is described as "thence along the northern bank of the Gulf Intracoastal Waterway to the vicinity of the Bayou du Large Ridge . . ." Because the northern bank" is not defined in any greater detail, it is necessary to look to other applicable Louisiana law defining "bank."
Article 456 of the Louisiana Civil Code provides as follows:
Art. 456. Banks of navigable rivers or streams.
The banks of navigable rivers or streams are private things that are subject to public use.
The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee shall form the bank.
Consequently, it can be seen that the "bank" is the land or area lying between ordinary low and ordinary high. Where a levee is present, the levee shall form the bank within these same limits.
Thus, in response to your inquiry No. 1, we find that the legal definition of the "northern bank" of the Gulf Intracoastal Waterway is that area of land lying between the ordinary low and ordinary high stage of water.
With respect to your inquiry No. 2, we find that if the barge slip cited in the application was in existence prior to the effective date of Act 361 of 1978, it became a part of the "northern bank" on the effective date of the Act, to the extent that its mouth is co-terminous with the bank.
With respect to your inquiry No. 3, if the barge slip cited in the application came into existence on or subsequent to the effective date of Act 361 of 1978, we find that it has legally become part of the "northern bank" for purposes of coastal management regulation. In this regard, paragraph 4a of the application itself states that the barge slip is located on applicant's property on the north bank of Bayou Boeuf. Paragraph 4c clearly states that anchored sheet piling will be placed as a protective bulkhead "across the mouth of the slip"; and that "7,600 cubic yards of fill material (including about 700 cubic yards of sand adjacent to the wall) will be placed into the slip."
It therefore appears from the face of the application that the proposed project will be occuring at least partially within the statutorilly defined boundaries of the coastal zone. Particularly, it is noted that the project will be occuring "on the north bank of the Bayou Boeuf" (paragraph 4a).
For these reasons, we find that this project is subject to the State and Local Coastal Resources Management Act of 1978, as amended, and that a permit is required for such proposed coastal uses, as defined by statute.
This opinion is based upon our evaluation of the facts presented with the application, together with a review of applicable statutory materials and reference to maps which pertain to the legally defined boundaries of the coastal zone. While it is possible that there could be some physical anomaly concerning the construction of the barge slip and its location with regard to the northern boundary of the coastal zone in this area, absent further information, it is our conclusion that the project does fall squarely within the regulation of the Louisiana Coastal Zone Management Program.
If we may be of further help in connection with this inquiry, please advise us.
Very truly yours,
WILLIAM J. GUSTE, JR. Attorney General
BY: ____________________________ GARY L. KEYSER Assistant Attorney General
GLK/jb
OPINION NUMBER 87-526
63 Levees, Drainage District Flood Control 72 Navigable Waters 90-B-3 Public Lands — Public Private domains, distinctions 172 Waters Water Courses — Boats, Motorboats Vessels Louisiana Civil Code Art. 456 Louisiana Civil Code Art. 460 River and Harbor Act of 1899, Sec. 10 Clean Water Act, Sec. 404 Marine, Protection, Research and Sanctuaries Act, Sec. 103
Riparian owner owns the bank of navigable rivers to ordinary low water and may exercise the rights of ownership subject to the rights of public use and the exercise of municipal, state and federal authority.
Mr. W. C. Holcomb Chief Deputy Office of the Sheriff Tax Collector Winnsboro, Louisiana 71295
Re: Op. No. 87-526 — Jurisdiction over Mississippi River Banks
Dear Mr. Holcomb:
This is in response to your letter of July 13, 1987, requesting an opinion from this office.
Without referring to a specific fact situation, you pose the following questions:
Who has ownership and/or jurisdiction of the land lying alongside and adjacent to the Mississippi River at low water?
Generally speaking, the banks of navigable rivers or streams are private things that are subject to public use f or certain purposes. The bank is the land lying between the ordinary low and the ordinary high stage of the water. Where there is a levee in proximity to the water, established according to law, the levee forms the bank and a riparian owner would have ownership rights to "ordinary low water." See Louisiana Civil Code Art. 456.
The private right of ownership and use is subject to public use, which includes the exercise of authority by levee boards, port commissions and even municipalities, within the limits of their respective jurisdictions for authorized purposes. Additionally, the U.S. Army Corps of Engineers has extensive statutory authority along navigable rivers or streams. See Louisiana Civil Code Art. 460; River and Harbor Act of 1899, Section 10; Clean Water Act, Section 404; and Marine, Protection, Research and Sanctuaries Act, Section 103. Under these latter laws, activities in or affecting navigable waters require permits pursuant to federal law, including such activities as the discharge and transportation of dredged or fill materials, and other activities affecting navigable waters of the United States.
You have also asked as follows:
How far inland, on either side, of the water's edge does federal jurisdiction extend?
Generally speaking, federal authority is exercised along the Mississippi River in connection with the activities of the U.S. Army Corps of Engineers, which is concerned principally with navigation, flood control and drainage activities affecting navigable waters of the United States. This authority is generally exercised to the water's edge in the case of levees along the Mississippi. However, in the case of waterways which empty into the Mississippi River and in the case of activities inland which have an impact on the Mississippi River, the Corps may exercise its authority beyond the waters edge to the location of the activity having impact on navigable waters and where wetland areas are concerned.
I have enclosed a copy of Opinion No. 86-778 which explores the area of public access to levee and batture lands along rivers and cites several pertinent statutes, code articles and a court case interpreting the laws.
I hope that this information is of value to you and if we may be of further help, please call upon us.
Very truly yours,
WILLIAM J. GUSTE, JR. Attorney General
BY: _________________________ GARY L. KEYSER Assistant Attorney General
GLK/jb
OPINION NUMBER 82-102
February 22, 1982
The public has a right to use only navigable waterbodies; no such right exists in relation to non-navigable waterbodies. Non-navigable rivers or streams are privately owned and the owners may preclude public passage thereon.
If the particular body of water is capable of being used in commerce, it should be considered to be navigable body of water.
Ms. Elizabeth A. Griffin Attorney Department of the Army New Orleans District Corps of Engineers Post Office Box 60267 New Orleans, Louisiana 70160
Dear Ms. Griffin:
Pursuant to your opinion request of December 7, 1981, the following issue is addressed:
Does the public have a right of access to unnamed canals or streams located in LaFourche Parish?
Apparently, this opinion request has been necessitated by a private request of issuance of a Department of the Army permit to allow construction of timber barricades across several unnamed waterbodies in LaFourche Parish. The purpose of these barricades is to preclude public access via the canals and streams, to private properties adjoining the same. It is also indicated that these barricades will not interfere with water flow or marine life.
Firstly, consideration will be given to the issue of the right of public access to rivers and streams, and the following is applicable:
Art. 450, . Louisiana Civil Code
Art. 450. Public things
Public things are owned by the State or its political subdivisions in their capacity as public persons.
Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.
Public things that may belong to political subdivisions of the state are such as streets and public squares.
Please note comment (f) under Article 450 which states in part:
"The expression 'natural navigable water bodies' refers to inland waters the bottoms of which belong to the state either by virtue of its inherent sovereignty or by virtue of other modes of acquisition, including expropriation. Artificial waterways located on private property for private purposes may, of course, be private things, for the same reasons that a road built on private property for private purposes may be a private thing."
Article 452 — Louisiana Civil Code
Art. 452. Public things and common things subject to public use
Public things and common things are subject to public use in accordance with applicable laws and regulations. Everyone has the right to fish in the rivers, ports, roadsteads, and harbors, and the right to land on the seashore, to fish, to shelter himself, to moor ships, to dry nets, and the like, provided that he does not cause injury to the property of adjoining owners.
Article 458 — Louisiana Civil Code
Art. 458. Works obstructing the public use
Works built without lawful permit on public things including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at the expense of the persons who built or own them at the instance of the public authorities, or of any person residing in the state.
The owner of the works may not prevent their removal by alleging prescription or possession.
In light of the foregoing articles, it is apparent that the " . . . waters and bottoms of natural navigable waterbodies bodies, are public things which are subject to public use including the, . . . right to fish in the rivers, ports, roadsheads, and harbors . . ." Such rights are considered so basic that, . . . works built . . . on . . . the bottom of natural navigable waters . . . that obstruct the public use may be removed at the expense of the persons who built or own them . . ."
In The Ramsey River Road Property Owners Association, Inc. vs. Reeves, 396 So.2d 873, (La. 1981), the Court held that since the Bogue Falaya River was used for trade and commerce in 1812, it is to be considered to have been a navigable body of water although it may no longer serve that purpose. The Court found that the evidence at trial showed the Bogue Falaya River, at the site of a proposed bridge, was navigable at that period of time and after, and that it is now within the domain of the State of Louisiana. Therefore, the river is a public waterway and could not be privately bridged.
The right of public use of natural navigable waters can also be found in Act 709 of the 1811 Congress of the United States authorizing the Territory of Orleans to be admitted into the Union, which provides in Section 3 (b) as follows:
". . . and that the River Mississippi and the navigable rivers and waters leading into the same or into the Gulf of Mexico, shall be common highways and forever free, as well to the inhabitants of said State as to other citizens of the United States, without any tax, duty, impost or toll therefore imposed by the said State."
It is apparent that the State of Louisiana considered the use of navigable waterbodies to be so crucial as to declare them to be public things and thus subject to the use of all persons. Any obstructions thereto could not and would not be tolerated.
However, non-navigable waterbodies have been viewed in an entirely different light. Article 506, Louisiana Civil Code provides as follows:
Art. 506. Ownership of beds of nonnavigable rivers and streams
In the absence of title or prescription, the beds of nonnavigable rivers or streams belong to the riparian owners along a line drawn in the middle of the bed.
Thus, the beds of nonnavigable waterbodies are not public but are private things. However, consideration must be given to Article 455, Louisiana Civil Code which provides as follows:
Art. 455. Private things subject to public use
Private things may be subject to public use in accordance with law or by dedication.
The question becomes whether or not the public has a right to use nonnavigable rivers and streams even though the beds of the same are private things. Said question was first answered in 1858 in the case ofBoykin v. Shaffer, 13 La. Ann. 129 that Act 709 of the 1811 Congress, stated, supra, did not apply to nonnavigable waterbodies, and therefore the public has no right to use nonnavigable rivers or streams. In addition, the case of Burns v. Crecent Gun Rod Club, 116 La. 249, 1906, the La. Supreme Court found that the public had no right to fish in certain nonnavigable bayous and went on to hold that:
"We will, in a few words, eliminate Irish Lagoon from consideration. It is filled with sea grass nearly all the year, by which it is choked and through the passage is possible in pirogues, and small boats only with some exertion. It has no channel, and its waters are not the same as those of the lake; for in it are found the fresh water fish to which we have before referred. The prairies and bayous above pour their fresh waters into this pond or lake. It cannot be considered in the light of a navigable stream. No schooner or water crafts of any importance ever found its way through this lagoon. It is not navigable, nor can it be considered a part of Lake Pontchartrain or any part of its shores. It is a container of fresh water and, while it may be affected by the ebb and flow from the lake, it is not a salt-water pond or lake.
Second Branch Bayou and Little Irish Bayou, the other water courses named, are by-streams, mere rivulets of no importance whatever as relates to navigation."
Another very important case relating to riparian owners' right to exclude the public from using a nonnavigable stream was State of Louisiana vs. Two O'Clock Bayou Land Company, Inc., 365 So.2d 1174, 1978 case. The Third Circuit Court of Appeal found that the bayou was in fact navigable and ordered the defendants to remove a cable that had been placed across the bayou. However, the Court did recognize that the issue was whether or not Two O'Clock Bayou was navigable. Navigability would entitle the parish and the state to enjoin obstruction of the bayou by privately owned barriers. It must be noted that, had the Court ascertained the bayou to be nonnavigable, the obstruction would have been allowed.
Thus, in light of the foregoing articles and jurisprudence, it is apparent that the public has a right to use only navigable waterbodies; no such right exists in relation to nonnavigable waterbodies. Nonnavigable rivers or streams are privately owned and the owners may preclude public passage thereon.
The next issue which must be considered is that of canals. Natural canals are considered in the same light as rivers and/or streams. If the natural canal is navigable, the public would have a right to use the same, however, it the natural canal is nonnavigable, the public would have no right of access. Man-made canals, however, have been given special consideration by the courts. I am enclosing the copy of a previous opinion done by myself in regards to the issue of man-made canals, and the public's right to use the same.
Finally, it is necessary to discuss the specific waterbodies in question. Suffice it to say that this office cannot declare these waterbodies to be either navigable or nonnavigable. Such a decision rests with the courts. However, there are certain facts which may be presented that can help in ascertaining whether or not these canals or streams should be presumed to be navigable or nonnavigable. The term "navigable" has two distinct meanings in Louisiana. Those two meanings may be divided as follows:
1. Navigable in 1812 — this in essence means that a body of water was navigable in fact upon the admission of the State into the Union, and for that reason, the bed thereof belongs to the State by virtue of her inherent sovereignty. (State v. Bozeman, 1924, 101 So. 4).
2. Navigable in fact — this related to the navigability of a particular water body at the present time, in the following test have been consistently used by the Louisiana Courts, i.e. whether or not the evidence shows a body of water to be suitable by its dept, width, and location for commerce, even though commercial traffic does not use that particular body of water.
This is in accordance with the prescribed test of navigability as used by the United States Supreme Court, i.e. susceptible of commerce. Accordingly, in order to ascertain whether or not a particular body of water is navigable, the two-fold test must be used i.e. first (1) whether or not that particular body of water was navigable in 1812, and if not, secondly, (2) whether or not the particular body of water is navigable in fact at this time. In summary, no State or Federal agency can ascertain whether or not a particular body of water is either legally navigable or nonnavigable. However, it is necessary in many instances that a determination be made for purposes other than the ownership of the particular body of water. Therefore, it is recommended that the test as followed by the Courts of Louisiana as well as the United States Supreme Court be used when making any type of determination. Simply put, if the particular body of water is capable of being used in commerce, it should be considered to be a navigable body of water.
Very truly yours,
WILLIAM J. GUSTE, JR. Attorney General
By: ___________________________ H. GLEN KENT, JR. Assistant Attorney General
WJG, Jr./HGK, Jr./ck
Enc.
If Bayou is not navigable and was not navigable in 1812, then, the bed and banks belong to riparian owners. If the bayou was navigable in 1812 the bed belongs to State. Public can be excluded from banks by riparian owners, and by State from other parts of stream if navigable now or in 1812.June 11, 1938.
Hon. Newt V. Mills, Member of Congress, House Office Building, Washington, D.C.
Dear Sir:
The Attorney General is in receipt of your letter of the 9th ult. In it you state that Holt Murphy own the lands on both sides of Bayou Macon in East Carroll Parish and West Carroll Parish for several miles, that they own an oil lease on the bayou there, and that they have prohibited certain citizens from fishing, traveling or camping on that stream. And you request an opinion as to whether Holt Murphy have a right to prohibit citizens from doing those things on the bayou.
The fact that they have an oil lease has nothing whatever to do with the question. The solution of it depends upon whether Bayou Macon is navigable.
A river or stream consists of its bed, its banks and its water. Morgan v. Livingston, 6 Mart. (O.S.) 19, 229; State v. Richardson, 140 La. 329, 338.
Its bed is the soil which is covered by water when the stream is at its ordinary low water stage. Wemple v. Eastham, 150 La. 247, 251; Pizanie v. Gauthreaux, 173 La. 737, 741.
The bank is the land which is covered by water when the stream is at its ordinary state of high water but uncovered when the stream is at its ordinary stage of low water, that is, the land between ordinary low water mark and ordinary high water mark. C. C. Art. 457, Morgan v. Livingston, 6 Mart (O.S.) 29, 229, supra; Lyons v. Hinckley, 12 Ann. 655, 657; Siebert v. Conservation Commission, 181 La. 237, 159 So. 375, 377. On streams which have no levees, the ordinary high water mark for this purpose is the ordinary high water mark on the ground in its natural condition Wemple v. Eastham, 150 La. 247, 253, supra; Pizanie v. Gauthreaux, 173 La. 737, 741, supra. In the case of streams with levees, it is the ordinary high water mark on the side of the levee. C. C. Art. 457; Heirs of Duverge v. Salter, 6 Ann. 450, 451; Mathis v. Board of Assessors, 46 Ann. 1570, Wemple v. Eastham, 150 La. 247, 253, supra; Siebert v. Conservation Commission, 181 La. 237, 159 So. 375, 377.
The banks and beds of non-navigable streams, which were non-navigable in 1812, belong to the riparian proprietors. Amite Gravel Sand Co. v. Roseland Gravel Co., 148 La. 704, 707; Wemple v. Eastham, 150 La. 247, 253, supra; Nattin v. Glassell, 156 La. 423, 426. Therefore, if Bayou Macon is non-navigable and was nonnavigable in 1812, its bed and shores belong to Holt Murphy where they own the land on both sides, the public has no right in them, and Holt Murphy have the right to prevent all persons whomsoever from making any use of the bayou there. However, the case is different if Bayou Macon is a navigable stream.
The bed of a navigable stream belongs to the State. State v. Richardson, 140 La. 329, 349, supra; State ex rel. Board of Comrs. v. Capdeville, 146 La. 94, 106; Wemple v. Eastham, 150 La. 247, 251, supra; Smith v. Dixie Oil Co., 156 La. 691, 702; Pizanie v. Gauthreaux, 173 La. 737, 741, supra. And it belongs to the State in her sovereign capacity. C. C. Art. 453; State ex rel. Board of Comrs. v. Capdeville, 146 La. 94, 106, supra; Wemple v. Eastham, 150 La. 247, 251, supra; Smith v. Dixie Oil Co., 156 La. 691, 702, supra; Pizanie v. Gauthreaux, 173 La. 737, 741, supra. The United States does not own the bed or banks of any navigable stream in any of the States. Goodtitle ex dem. Pollard's Heirs v. Kibbe, 9 How. 471, 478, 13 L.Ed. 220, 223; St. Clair County v. Livingston, 23 Wall. 46, 23 L.Ed. 59, 63; Barney v. Keokuk, 94 U.S. 324, 338, 24 L.Ed. 224, 228; Scott v. Lattig, 227 U.S. 229, 242-243, 57 L.Ed. 490, 496, 497; Oklahoma v. Texas, 258 U.S. 574, 583; 66 L.Ed. 771, 775; United States v. Utah 283 U.S. 64, 75, 75 L.Ed. 844, 849; State v. Richardson, 140 L. 329, 335, supra; C. C. Art. 453; State ex rel. Board of Comrs. v. Capdeville, 146 La. 94, 106, supra.
The State owns the beds of navigable streams in her sovereign capacity. C. C. Art. 453; State ex rel Board of Comrs. v. Capdeville, 146 La. 94, 106, supra; Wemple v. Eastham, 150 La. 247, 251, supra; Pizanie v. Gauthreaux, 173 La. 737, 741, supra. As long as a stream is navigable, it is a public thing, and the public has a right to use it for navigation and fishing. C. C. Art. 453.
The banks of a navigable stream belong to the riparian proprietors. C. C. Art. 455; Morgan v. Livingston, 6 Mart. (O.S.) 19, 230, supra; Denistoun v. Walton, 8 Rob. 211, 213; De Ben v. Gerard, 4 Ann. 30, 31; Heirs of Duverge v. Salter, 6 Ann. 450, 451, supra; Lyons v. Hinckley, 12 Ann. 655, 657, supra; Mathis v. Board of Assessors, 46 Ann. 1570, supra; State v.. Richardson, 140 La. 329, 341, supra; Wemple v. Eastham, 150 La. 247, 251, supra; Pizanie v. Gauthreaux, 173 La. 737, 741, supra; Seibert v. Conservation Commission, 181 La. 237, 159 So. 375, 377, supra. In other words, when one owns land bounded by a navigable stream, his land includes the bank of the stream on the side his land is located on between the side lines of his land. However, the bank of a navigable stream which belongs to him is subject to certain servitudes in favor of the public. C. C. Art. 455.
The servitudes which the banks of a navigable stream are subject to in favor of the public are only such as are incidental to the use of the stream as a navigable stream. Lyons v. Hinckley, 12 Ann. 655, 657, supra; State v. Richardson, 140 La. 329, 341, supra. Chinn v. Petty, ___ La. Ap. ___, 163 So. 735 (2nd Circuit). They have the right to land vessels against the bank, the right to tie them up to the bank, the right to load them there, the right to deposit goods there in connection with loading and unloading vessels, the right to dry nets on the bank, and the right to make similar uses of the bank. C. C. Art. 455; Dennistoun v. Walton, 8 Rob. 211, 214, supra; Heirs of Duverge v. Salter, 6 Ann. 450, 451, supra; Wemple v. Eastham, 150 La. 247, 251, supra. The right to tie up vessels against the bank is only the right to do so in connection with their navigation; it does not give one the right to keep a vessel tied to the bank indefinitely without the consent of the owner of the bank. Heirs of Duverge v. Salter, 6 Ann. 450, 451-452, supra. In Chinn v. Petty, ___ Ap. ___, 163 So. 735, supra, the Court of Appeal for the Second Circuit correctly held that no one has a right to build or maintain a permanent dwelling on the bank of a navigable stream without the consent of the owner of the bank. It is our opinion that camping on the bank is not a use of the bank incidental to the use of the stream as a navigable stream, and, therefore, no one has a right to camp on the bank of a navigable stream without the consent of the owner thereof.
If a stream was navigable when Louisiana was admitted to the union as a State in 1812, the bed thereof then became the property of the State. State v. Richardson, 140 La. 329, 349, supra; Smith v. Dixie Oil Co., 156 La. 691, 693, 702, supra. If such a stream has ceased to be navigable the bed continues to belong to the State. State ex rel. Board of Comrs. v. Capdeville, 146 La. 94, 106; Wemple v. Eastham, 150 La. 247, 251, supra; Smith v. Dixie Oil Co., 156 La. 691, 702-703, supra. But in such a case the use of the stream ceases to be public, and the State owns the bed as a private property of the State. Board of Comrs. v. Glassel, 120 La. 400, 404-406; Wemple v. Eastham, 150 La. 247, 251, supra. Consequently, when a stream which was navigable when the State was admitted to the Union has ceased to be navigable, the State, as the owner of the bed, has a right to prevent the public from using the stream for any purpose.
In view of these principles, if Bayou Macon is navigable at the place in question the public has a right to use the bayou for traveling, fishing and camping. They do not have the right to use the banks for any purpose except in connection with the use of the stream and the owners of the banks, Holt Murphy, have a right to prevent them from using the banks for any purpose except those connected with the use of the stream. They do not have a right to camp on the banks. If they wish to camp, they should camp on their water craft, which they may tie up to the bank, provided they do not keep any vessel tied up in one place indefinitely.
If Bayou Macon is not navigable at this place, the public does not have the right to use either the stream or the banks for any purpose. If it was not navigable in 1812, the bed and the banks both belong to Holt Murphy, and Holt Murphy have a right to exclude the public entirely from the stream and the banks.
If the bayou was navigable in 1812, but is not navigable now, the bed belongs to the State and the banks belong to Holt Murphy. In that case, Holt Murphy can exclude the public absolutely from the banks, and the State can exclude the public absolutely from the rest of the stream.
Yours very truly,
JOSEPH A. LORET, Special Assistant Attorney General.