Also known as:navigational servitude · federal navigation servitude
Written by attorneys · grounded in primary & secondary sources — see below
A public right that permits the federal government to regulate navigable waters for navigation and related purposes. The right arises under the commerce power and prevents private interests from claiming exclusive control over submerged lands or waters subject to the public interest in navigation.
Sources & Authorities
How it applies
Common Examples
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Private Dock Claim Rejected
The Coastal Museum owned submerged land in a tidal inlet designated for public use. It recorded a document purporting to grant Warren a perpetual private dock right across the land for his gallery's commercial shipments. When Warren sold to Gina, the museum asserted public rights and blocked further private use. Gina sued claiming an enforceable private servitude, but the court held the littoral privilege fell outside servitude doctrine because of the navigation servitude and public-trust doctrines.
Marina Access Dispute
Kaiser Aetna dredged a channel to convert a private pond into a marina connected to the ocean under a Corps permit that originally limited access to members. After completion the United States asserted a navigation servitude requiring public access. The Court recognized the servitude as a background public right that overrode the private development expectations without requiring compensation for the access obligation.
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Restatements
Casebooks
Hornbooks
Dictionaries
Kaiser Aetna v. United States444 U.S. 164, 176 (1979)
Cable Installation on Submerged Land
A cable company installed equipment on a building owner's land under a state statute. The owner claimed a permanent physical occupation requiring compensation. The Court distinguished the navigation servitude cases, noting that the servitude allows government regulation of navigable waters without compensation because it is a pre-existing public right rather than a new physical invasion of private upland.
Loretto v. Teleprompter Manhattan CATV Corp.458 U.S. 419, 427 (1982)
Beachfront Development Ban
Lucas purchased coastal lots and was later barred by state law from building any permanent structures. He argued total economic deprivation required compensation. The Court noted that background principles such as the navigation servitude could defeat the claim if the state could show the prohibition inhered in the original title, but remanded for that determination.
Lucas v. South Carolina Coastal Council505 U.S. 1003 (1992)
Shopping Center Speech Access
A shopping center owner sought to exclude leafleteers from common areas. The Court held that state constitutional speech rights could require limited access without constituting a taking. It distinguished the navigation servitude cases because those involved federal regulation of navigable waters rather than state-mandated public access on private upland.
PruneYard Shopping Center v. Robins447 U.S. 74 (1980)
Floodplain Ordinance Challenge
A church owned land in a floodplain and was denied a building permit after a flood-control ordinance took effect. It sued claiming a taking. The Court recognized that background principles including the navigation servitude can prevent compensation when the restriction reflects pre-existing limitations on title rather than a new regulatory burden.
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250
Common questions
Frequently Asked
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Why does the Restatement exclude the navigation servitude from its definition of servitudes?+
The exclusion prevents private parties from using servitude doctrine to create exclusive rights in lands and waters that remain subject to paramount public interests in navigation. The rule preserves the public character of those resources and channels disputes into public-trust and regulatory frameworks rather than private enforcement actions.
Does a recorded private agreement ever convert a navigation servitude into an enforceable private servitude?+
No. The categorical exclusion in Restatement section 1.1(3) applies regardless of private drafting, recording, or intent to create a running interest. Public-trust and navigation rights remain outside servitude law even when parties attempt to recharacterize them through recorded documents.
How does the navigation servitude interact with regulatory takings claims?+
It functions as a background principle that can defeat compensation claims when the government regulation merely enforces the pre-existing public right. Courts treat the servitude as inherent in title to submerged lands, so restrictions preserving navigation do not constitute new takings.
505 U.S. 1003 (1992)Property
…and n. 10 (1946) (physical invasions of airspace); cf. Kaiser Aetna v. United States , 444 U. S. 164 (1979) (imposition of navigational servitude upon private marina). The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land. See…