American Whitewater

Mississippi Navigability Report

Summary

Mississippi uses a very straightforward test to determine navigability of streams. Natural streams with a mean annual flow of at least 100 cubic feet per second are public waterways on which the public has the right to free transport and the right to fish and engage in recreation.1) The public can also acquire rights in a body of water through prescription if there is a long history of public use.2) The public must be able to legally gain access to the water.3) The right of the public to use the waterway includes activities associated with the normal use of the waterway, such as tying a boat to a tree and wading where the streambed is privately owned.4)

State Test of Navigability

Waterways are public if they are natural and their mean annual flow is at least 100 cubic feet per second, as determined and designated on maps by the Mississippi Department of Environmental Quality.5) The public may also be able to use waterways that have customarily been used by the public.6)

Test is derived from statute.

”[T]he beds of navigable freshwater rivers, lakes and streams [are] susceptible of private ownership.”7) However, “owners of the beds and bottoms of navigable freshwaters have no right to exclude others from the waters' surface.8)

Extent of Public Rights in Navigable and Non-Navigable Rivers

”[O]wners of the beds and bottoms of navigable freshwaters have no right to exclude others from the waters' surface.9) If you can reach the water without trespass, you may fish there “to your heart's content, subject only to a like use by others.”10)

The right of the public to use the waterway includes activities associated with the normal use of the waterway, such as tying a boat to a tree and wading where the streambed is privately owned.11) However, Miss. Code § 51-1-4 states that “nothing herein contained shall authorize anyone using said public waterways … to trespass upon adjacent lands.” Trespass is committed only after a person has been warned not to trespass in person or by a suitable notice in a conspicuous place on the land.12)

Miscellaneous

It is a crime punishable by a fine of up to $1,000 or a prison term of up to six months to obstruct any navigable channel in any manner.13) The state constitution forbids the legislature from authorizing the permanent obstruction of any navigable water, but includes many exceptions.14) “Any person may enter and remove any and all obstructions to the navigation thereof which may be in or across or over any navigable stream.”15)

1) , 3) , 5) Miss. Code § 51-1-4.
2) Dycus v. Sillers, 557 So.2d 486, 500 (1990).
4) , 11) Department of Wildlife, Fisheries & Parks, Op. Att’y Gen. 93-036 (December 6, 1993).
6) Dycus, 557 So. at 501 (“Where the public has enjoyed access to waters for in excess of ten consecutive years, those waters belong to the state by adverse possession, to be held in trust for the people.”).
7) Dycus, 557 So. at 498.
8) , 9) Id.
10) Id. at 500-01.
12) Miss. Code § 49-7-79.
13) Miss. Code § 97-15-43; see also Miss. Code § 97-15-45 (providing that it is a misdemeanor punishable by a fine of not more than fifty dollars or by imprisonment of up to thirty days to permanently obstruct any navigable waters).
14) Miss. Const. art. 4, § 81.
15) Miss. Code § 51-1-5.
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