I thought that line, long stuck in my head, was from an ancient philosopher. It looks like it’s actually from Ernest Goes to Camp (1987). Still, the question lingers and the answer is probably, “it depends.”
When I travel to my wife’s Idaho, it is obvious that water rights are much different here than back east. God normally waters my lawn in north Georgia, but in eastern Idaho, grass often grows only where the land is artificially irrigated.
Idaho, and the western states, base their water law on “prior appropriation” which is often described as “first in time, first in right.” Under this system, a water right is like a right to land that can be bought, sold, bequeathed without regard to owning the adjoining land. This right is acquired, historically, by diverting (or in some matter of consuming the water) or obtaining a permit. The date this is done gives that water right holder a priority date. Those that obtained water earlier in time, get the water first, in cases of scarcity, like a drought, when there is not enough water to go around.
In the east, the system of water law is known as “riparian rights.” Under this system, the water is not owned, but is part of the land over which it runs. The owners of the land beside or below the water, can use that water reasonably (generally so that water downstream is not diminished in flow or quality).
Among riparian rights, there is a distinction between navigable and unnavigable waters. To that we now turn.
In City of Townsend v. Damico, (Tenn. 2014) a city issued a citation to trespass to Damico for carrying his inner tube from the river across private property to a public road. Damico contested the citation saying that he only sought to avoid going over a water fall, and that he had the right to “portage” around the dangerous area on land, even private land. The Tennessee Appeals Court overturned the trial court to uphold the citation. The river in question was deemed navigable in that inner tubes could float down it. As a navigable stream, “the soil covered by the water, as well as the use of the stream, belongs to the public.” Webster v. Harris, 69 S.W. 782, 784. If not navigable, then the soil beneath the water belongs to the adjoining landowner, but with a public easement on the water for commercial and transportation purposes.
As a navigable stream, Damico had a right to portage around the obstruction onto private property, but he could not simply cross the private property as he did to a public road.
Often times I tell a potential client that she may be right, but it will be more expensive to prove it, than merely paying the ticket or claim. The client often responds “but it’s the principle” which may as well be a cash register ringing. Cases like Damico may not be good for the pocketbook, but they make for good reading.