07/16/2021
Thank you Anthony for this letter from four years ago:
From: Anthony B. Schutz, Associate Professor of Law
University of Nebraska College of Law
NEBRASKA WATER LAW - THE FACTS
January 12, 2017
Friends of the Rivers Nebraska, Inc.
Dear FOR,
I understand the landowners are upset with the way in which the river near their properties is being used. Specifically, there are two uses that are causing problems. The first use is airboats, which is primarily a problem because of the noise these boats make. The second concerns all terrain vehicles (ATVs), like four-wheelers and jeeps. These uses are noisy and tend to disturb the riverbed.
Insofar as river access is concerned, most of these users are gaining access to the river from a landowner who owns land along the river. Once they gain such access, however, they proceed up and down the river, within its banks, at will. Apparently there are some landowners who have posted no-trespassing signs. But users only sometimes obey those signs, and they sometimes simply progress up or down the river bed.
I was asked, generally, whether or not these users have any right to use the river in this manner, against the will of an objecting landowner along the river. A related question concerns any legal recourse that objecting landowners may have.
Generally speaking, anyone in Nebraska who owns land along a river (so-called riparian owners) also owns the bed of the river to approximately the middle of the river. The property boundary is a line in the river that represents where water would last flow if the stream were to go dry. This is often referred to as the thread of the stream.
As a baseline rule, property owners have the right to exclude others from their property. Those that enter their property without their permission are trespassers. So as a baseline rule, riparian owners may exclude all users from the river bed to the thread of the stream. However, there is a legal right that allows others to use the river, even without the river-bed owner's permission. This legal right is sometimes referred to as a "servitude" or "easement" for navigation. This public right to use the water flowing over one's property applies to those activities that pertain to the use of the water for things like navigation. So boating is likely within the scope of the rights that the public has to these waters. As a result, airboats would likely fall within the scope of the easement. Thus, one likely could not exclude such users from the river based upon a trespass theory.
It is fairly clear, however, that using the river bed for ATVs and the like is not within the scope of the navigation easement. While the public may have some rights to use the bed or banks of a stream to access the water and use it for navigation (e.g. to portage unpowered watercraft), I'm unaware of any case holding that the bed and banks of a stream are subject to an easement that allows pleasure driving. The Attorney General of the State of Nebraska has written an opinion to this effect as well.
In summary, insofar as trespass is concerned, it would appear that the airboats are within the scope of a legal right that allows them to use the surface of the flowing river, even if it upsets objecting riparian owners. ATVs on the riverbed are probably trespassers if they are using land without the riparian owner's permission. To the extent the ATV users remain on the property that they have permission from a riparian owner to use, they are not trespassers.
As a result, objecting riparian owners do not have recourse to trespassing actions to stop airboat users or ATV users that have permission from a landowner to use part of the river bed.
There are however, two main ways in which these objecting riparian owners could get some relief. The first deals with the common law right to be free from nuisances. The second deals with legislation, administrative regulation, or both.
Nuisance liability is a common way of resolving conflicts among property users. It is sometimes referred to as the law of neighbors. If a land user substantially interferes with the use and enjoyment of a neighbor's land, then he or she can be found liable and ordered to pay monetary damages, to abate the nuisance, or both. Such a claim could be made here against the neighboring uses (either the airboats on the river or the ATVs on adjacent properties). In fact, the riparian landowner that allows the ATVs to use her property could also be subject to nuisance liability.
Another method of resolving land-use conflicts is through regulation. The can be done at the state level or it can be done at the local level. Reasonable restrictions on the times during which these activities can take place, the proximity to neighboring homes or habitat, sound restrictions, or similar regulations could be implemented. The specific method of implementation would also be something to consider. Criminal enforcement is one means, conditional use permits or business permits are another, and state licensure is another example.
This letter discusses my initial thoughts on the subjects we have discussed. All of this should be taken as a set of informal observations. I have not exhaustively researched the matter. As well, none of what I say here is legal advice. I'm not your lawyer, nor do I represent anyone concerning this subject.
As always, if there are any questions, please let me know.
All the best.
Anthony B. Schutz
Associate Professor of Law
University of Nebraska College of Law
[email protected]
