Also known as:servitudes of navigation · navigation servitude · navigational servitude
Written by attorneys — see sources below.
A public right arising under the public-trust doctrine or federal authority that burdens land under navigable waters. The right permits public use for navigation, fishing, and recreation. Such rights fall outside the category of private servitudes that run with land.
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How its tested
Common Examples
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Public Access Claim on Tidal Inlet
The Coastal Museum owns land bordering a tidal inlet that State A designated for public fishing and boating. Warren purchases the adjacent gallery and records a document purporting to grant him an exclusive perpetual right to build and maintain a private dock across the museum's submerged land. When Warren sells to Gina, the museum asserts that the inlet remains open to the public. Gina sues to enforce the recorded grant as a private running right. The court holds that the claimed interest is a public-navigation servitude and therefore cannot be converted into an enforceable private servitude benefiting the gallery parcel.
Federal Challenge to Private Marina
Kaiser Aetna dredges a channel connecting a private pond to the ocean and obtains a Corps permit that states the resulting marina will remain closed to the public. After completion the United States sues, claiming the marina is subject to a navigational servitude that opens it to public access. The Court recognizes that the federal government may impose the servitude on navigable waters without creating a compensable private property interest. The marina owner therefore cannot exclude the public on the theory that the permit created an exclusive private right.
Kaiser Aetna v. United States444 U.S. 164, 176 (1979)
In the early 1960s, Kaiser Aetna's predecessor leased a 6,000-acre area including Kuapa Pond on the island of Oahu from the Bishop Estate for subdivision development known as Hawaii Kai. Kuapa Pond was a shallow lagoon covering 523 acres that extended approximately two miles inland from Maunalua Bay, was separated from the Pacific Ocean by a barrier beach, and had been used historically as a private fishpond under Hawaiian law following the 1848 Great Mahele land division. Kaiser Aetna dredged the pond to an average channel depth of six feet, constructed an eight-foot-deep channel through the barrier beach to connect it to the bay and ocean, erected retaining walls, built bridges, and eliminated the original sluice gates to create the Hawaii Kai Marina for pleasure boats.
The Army Corps of Engineers issued a permit for the dredging and filling operations that expressly provided the marina would be a private facility not open to the general public. At the time of trial, a marina-style community of approximately 22,000 persons surrounded the pond, including 1,500 waterfront lot lessees who paid fees for maintenance and security, and Kaiser Aetna controlled access while generally prohibiting commercial use except for limited promotional vessels. In 1972 a dispute arose when the Corps asserted regulatory authority under the Rivers and Harbors Appropriation Act and claimed the pond had become navigable waters of the United States open to the public.
The United States filed suit in the United States District Court for the District of Hawaii seeking a declaration of public access rights and an injunction requiring Kaiser Aetna to allow such access. The District Court found that Kuapa Pond had not been navigable prior to the improvements, held that the pond was subject to Corps regulation but that the Government lacked authority to open it to the public without compensation, and denied the requested injunction. The Court of Appeals for the Ninth Circuit reversed, holding that the marina was subject to the federal navigational servitude and that no compensation was required.
The Supreme Court granted certiorari to consider whether the Government's assertion of a public right of access amounted to a taking of private property.
Why does the Restatement exclude the public-navigation servitude from its definition of servitudes?
The exclusion prevents private parties from using servitude doctrine to privatize public rights in navigable waters that the public-trust doctrine holds for collective use. The rule preserves public access for navigation, fishing, and recreation even when adjacent owners attempt to create recorded private grants.
Does a recorded private agreement ever convert a public-navigation right into an enforceable private servitude?
No. The Restatement categorically removes public-navigation servitudes and littoral rights from servitude status regardless of form, recording, or expressed intent to create a running interest. Private drafting cannot override the public character of the underlying right.
How does the navigational servitude differ from a private easement or profit?
A navigational servitude arises from public law and federal or state authority over navigable waters. It does not require a dominant estate or private agreement and cannot be extinguished by private conveyance. Private easements and profits, by contrast, are created by grant or prescription between landowners and run with identified parcels.
What policy supports treating the navigational servitude as outside private servitude law?
The policy maintains uniform public control over navigable resources and prevents adjacent owners from securing exclusive commercial advantages through recorded instruments. Allowing private servitudes would undermine the public-trust goal of keeping tidal and navigable waters open for collective benefit.
444 U.S. 164 (1979)
…public. After the development was completed, the United States brought suit, contending that the marina was subject to a "navigational servitude" and that the public was entitled to a right of access to the pond. The District Court held that the Government could not require public access without payment of just compensation. The…
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