Kentucky Pro David Young shot at during practice

[JD7.62]

Is there a list of KY "navagible streams"?

[psprowler]

Is there a list of KY "navagible streams"?

Not sure if there is an actual list but I cut and pasted a relevant section from the american whitewater archives. They've done the legwork and summarized the legal cases that have come forth.

KENTUCKY


1. Basic Description

Kentucky?s right of passage extends to recreational boating, but only on large streams capable of floating logs for commerce. Although boaters may thus access navigable streams, the definition frequently excludes smaller creeks and streams capable of floating recreational boats. On navigable streams, the right of portage probably exists as a matter of necessity.


2. State Test of Navigability

Kentucky?s state test of navigability is the "navigable in fact" test, similar to the federal commerce test. "If the stream, in its natural condition, is capable of being used for floating vessels, rafts, logs, etc., and has in the past been used for that purpose, the public has an easement in it." It is not essential that the useful capacity of the stream be continuous (all year), as long as the regularly occurring fluctuations make the stream useful as a highway. Kentucky expressly rejected the recreational boating test, so the fact that a skiff or canoe can float a stream is of no matter. The true test is whether the stream is generally and commonly useful for some purpose of trade or commerce of a substantial and permanent character. Even where a ferry has operated on stretches of a stream, the stream may not be navigable.

In Murray, Chestnut Creek was found to be non-navigable because it had not been used for log driving, nor was it useable for floating logs without assistance from persons on the banks. This was the ruling despite the fact that during freshets the creek received considerable amounts of water for several hours. Straight Creek, a ten-foot wide and four-foot deep creek during heavy flows, has also been declared non-navigable, because timber could not be floated without the aid of splashdams.


3. Extent of Public Rights in Navigable Rivers

The public can use navigable streams for recreational purposes, including the stream bottoms, despite the fact that streambeds of navigable rivers are owned by the adjacent riparian landowner. Public use of a navigable stream extends to the ordinary high water mark.

The existence of a right of portage in Kentucky is unclear. Some cases held that "the right which the public enjoys in a navigable stream is, in general, limited by its banks. "[T]he absolute rights of persons in the use of a navigable stream for the purpose of navigation extend alone to the bed of the stream, and not to the appropriation of the soil, trees, and vegetation on its banks, either permanently or temporarily, to their own use. . . ." However, one case recognized the right to use the banks of a navigable stream to effect floating logs or to retrieve stranded logs "as necessity may require," because such use is an activity incident to the use of the river. Portage is likewise an activity incident to the use of a navigable river and may be available to boaters as a matter of necessity or choice of evils.


4. Statutes Governing Landowner Liability

Kentucky's recreational use statute (Ky. Rev. Stat. Ann. §§ 150.645 and 411.190) was passed in 1968. This law does not require of the landowner to keep the property safe, warn of hazardous conditions, or provide any assurances of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property unless they are fees from land leased to a public agency.

Kentucky's tort claims act, which defines the scope of the government?s liability, is detailed in the Kentucky Board of Claims Against the Commonwealth, Ky. Rev. Stat. Ann. § 44.070 et seq.


5. Miscellaneous

Criminal trespass on private land that is fenced or posted against trespass or where the owner has communicated to the trespasser is a class B misdemeanor.