NAVIGABILITY OF RIVERS ‑- NORTH RIVER ‑- COURTS' POWER TO DETERMINE
The navigability of the North River has not been determined. It is not the office of the attorney general to determine navigability of rivers; such determination lies exclusively within the jurisdiction of the courts.
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October 9, 1956
Mr. L. T. Webster
Supervisor of Forestry
General Administration Building
Olympia, Washington Cite as: AGO 55-57 No. 326
In your letter of August 31, 1956, you requested an opinion on the following question:
"Is North River a navigable river and if so, what portion of the river is considered navigable?"
Our answer is that the navigability of the North River has not been determined and may not be determined by this office.
The determination of whether any body of water, river or lake is navigable is a question of fact and necessarily requires a judicial decision to that effect before the body of water may be deemed navigable. Washington Security Co. v. State, 9 Wn. (2d) 197; Purdy v. State, 199 Wash. 638; Smith v. State, 184 Wash. 58; Lefevre v. Washington Monument & Cut Stone Co., 195 Wash. 537; andSnively v. State, 167 Wash. 385.
In any action in which the question of navigability arises, the burden of proving that such body of water is navigable rests upon the individual alleging the body of water to be so. Griffith v. Holman, 23 Wash. 347.
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In order that you will have a better understanding in this matter in the event an action is commenced, we will cite to you some of the factors the court considers in ruling upon the navigability of a river, as stated in the recent case ofKemp v. Putnam, 47 Wn. (2d) 530:
"The term 'navigable' or 'navigability' means such waters as are capable of being used practically for the carriage of commerce. . . ."
The court further states, in quoting from East Hoquiam Boom & Logging Co. v. Neeson, 20 Wash. 142:
"'It is well settled that a stream which can only be made navigable or floatable by artificial means is not a public highway.'"
The court quotes with approval the general rule as announced in 65 C.J.S. 56, § 6c:
"'The navigable quality of a watercourse need not be continuous, but the seasons of navigability must occur regularly, and be of sufficient duration to subserve a useful public purpose for commercial intercourse.'"
The following rule, as stated by People ex rel. Erie R. Co. v. State Tax Commission, 266 App. Div. 452, 43 N.Y.S. (2d) 189, is quoted by our court with approval at page 534:
"'Navigability is not destroyed because of occasional natural obstruction or portages, nor is it necessary that navigation continue at all seasons of the year, and it (a stream) does not lose this characteristic even if it has fallen into disuse for a hundred years.'"
While our court has on several occasions specifically ruled upon the navigability of certain rivers within the state, an investigation of this matter by our office has failed to disclose a case in which such a ruling was made concerning the North River.
We hope this will be of assistance to you.
Very truly yours,
Assistant Attorney General