18.12 XIII. Rights Of The United States—Federal Navigational Servitude

• Jurisdiction: New York

XIII. Rights of the United States—FEDERAL NAVIGATIONAL SERVITUDE

The federal government, under the powers granted to Congress by the Constitution to regulate commerce, may regulate and improve navigation and navigable waters, regardless of whether the title to the land now or formerly under water is in the state or individual owners.³²¹⁴ This right is sometimes referred to as the federal navigational servitude. The exercise of this right by the federal government includes the power to use the lands for purposes relating to commerce and navigation or to require that the lands be restored to usability for commerce or navigation without any obligation to pay compensation to the owner. The public purposes may also include fisheries.

The right of the state as owner of the land under water is also subordinate to the constitutionally founded regulatory power of the federal government, sometimes referred to as a public trust, or the interest of the people.³²¹⁵ As owner of the jus privatum, the state may grant rights thereto to individuals as owners.³²¹⁶ However, a state or the United States as holder of the public trust in navigable waters may not transfer the jus publicum, except through the representative of the people (i.e., the legislature or the Congress).³²¹⁷

Although the right is waivable, such a waiver will not be implied. In United States v. Cherokee Nation of Oklahoma,³²¹⁸ the U.S. Supreme Court found that there was no release of the federal navigational servitude absent an express waiver, even where the United States had transferred title to a riverbed by treaty to an Indian nation.

The foreshore (i.e., the land under navigable tidewaters between the high- and low-water marks) is also subject to the federal navigational servitude and to the public’s right of access across the foreshore for fishing and bathing.³²¹⁹ However, where the owner of the adjacent upland acquires the land under water, he thereby becomes the owner of the jus privatum as owner of the foreshore. As such, the owner may fill the land under water including the foreshore, thereby extinguishing the jus publicum,³²²⁰ subject, however, to the federal regulatory power over tidewater for the public benefit, which still continues.³²²¹

The extinction of the jus publicum where the riparian owner also acquires the adjacent land under water does not control the situation where the upland owner does not own the adjacent land under water. As such owner, however, he has reasonable and safe access...