Also known as:navigational servitude · navigation servitude
Written by attorneys · grounded in primary & secondary sources — see below
A public right held by the state in trust allowing the public to use navigable waters for navigation, fishing, and recreation. The right persists in submerged lands even after private ownership and is categorically excluded from the definition of servitudes under property law.
Sources & Authorities
How it applies
Common Examples
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Private Dock Claim Rejected
Nile Shipping purchased upland property bordering a tidal inlet that State A had long designated for public navigation under the public-trust doctrine. The company recorded an agreement purporting to grant it an exclusive perpetual right to build and maintain a private loading dock across the submerged land. When the state later asserted public access, Nile Shipping sued claiming an enforceable private servitude. The court held that the claimed right was a navigational servitude and therefore could not run as a private interest.
Beach Access Condition Upheld
Noelle North sought a permit to rebuild her oceanfront home. The coastal commission conditioned approval on dedication of a public walkway across the dry sand above the mean high-tide line. North argued the condition effected a taking by imposing a permanent easement. Because the walkway facilitated public navigation and recreation rights already reserved under the navigational servitude, the condition did not constitute a new taking of private property.
Select any source to read its text and confirm it supports the definition.
Restatements
Study Supplements
Nollan v. California Coastal Commission483 U.S. 825, 834 (1987)
Cable Installation Not a Taking
Neville Norton owned a building along a navigable river. The city authorized a cable company to string lines across the riverbed beneath Norton's riparian parcel without compensation. Norton claimed a permanent physical occupation requiring just compensation. The installation fell within the navigational servitude, so the city action did not effect a compensable taking of Norton's property interest.
Loretto v. Teleprompter Manhattan CATV Corp.458 U.S. 419, 427 (1982)
Development Ban Survives Challenge
Nora Nash bought coastal lots for residential development. After a new statute barred all construction to protect navigation channels, Nash sued alleging a total taking of economic use. The prohibition merely enforced preexisting navigational servitude rights that already limited private development of the submerged and adjacent lands, so no compensable taking occurred.
Lucas v. South Carolina Coastal Council505 U.S. 1003 (1992)
Marina Conversion Blocked
Nolan Nunez purchased a private pond and converted it into a marina open only to paying members. The United States asserted that the pond connected to navigable waters and therefore remained subject to the navigational servitude. Nunez's attempt to exclude the public failed because the servitude prevented private closure of the waterway regardless of his ownership of the bed.
Kaiser Aetna v. United States444 U.S. 164, 176 (1979)
Public Gathering Rights Affirmed
Norman Nash owned a large waterfront shopping center. Protestors gathered in the common areas to express views on waterway pollution. Nash sought to exclude them, claiming the gatherings amounted to an uncompensated taking. Because the center bordered navigable waters already impressed with the navigational servitude, the limited public access did not constitute a taking of the owner's property rights.
PruneYard Shopping Center v. Robins447 U.S. 74 (1980)
Common questions
Frequently Asked
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Why are navigational servitudes excluded from the Restatement definition of servitudes?+
The Restatement excludes them because they are public rights held in trust by the state rather than private arrangements that run with land between individual owners. This prevents private parties from converting public navigation rights into exclusive interests through recorded documents or agreements.
Supporting sources
Does a navigational servitude require compensation when the government enforces public access?+
No. Because the servitude is a background principle already limiting private title, enforcement does not constitute a taking under the Fifth Amendment.
Supporting sources
Can private parties create an enforceable servitude that overrides a navigational servitude?+
No. Any attempt to grant exclusive private rights over lands subject to the navigational servitude fails because the public right is paramount and cannot be privatized by agreement.
Supporting sources
How does the navigational servitude interact with regulatory takings claims?+
It supplies an inherent limitation on title that defeats claims of total economic deprivation or physical occupation when the regulation merely preserves public navigation rights.
Supporting sources
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…