Duhaime's Law Dictionary


River Definition:

A watercourse with a current and which is of capacity to be navigated.

Related Terms: Watercourse, Stream, Lake

The common law has agonized over a common definition of the legal term river even though it ought to have been clearly stated and stopped at a navigeable watercourse (or waterway) with a current - that distinguished it from a lake and a stream.

The 1986 Northern Territories (Australia) Regulation #3, Fish and Fisheries Regulations had the very sensible definition that follows:

"River includes creek, stream, billabong, lake and any other watercourse or body of water that flows, directly or indirectly, into the sea, whether seasonally or consistently throughout the year."

One distinction is made between navigeable rivers - those that flow into the sea and which are capable of navigation - and called non-navigeable rivers in law and which do not flow into the sea but which in fact, are navigeable:

"There are two kinds of rivers — navigable and not navigable.... Navigable rivers are considered as arms of the sea, whether the water be salt or fresh they extend as high as the sea tides flow and re-flow. [E]very navigable river as high as the sea flows and re-flows is called a royal stream in reference to the public use of it, for these kind of rivers are regarded as public highways by water; and every public river or stream is alta regia via (the king's highway)...

"Rivers that are not navigable, but which nevertheless are public highways by water, are fresh-water streams, or inland rivers above tide waters, that are of capacity to be navigated in fact, and used for purposes of navigation."1

Other terms used from time to time by the courts to refer to what might under a common definition, were one accepted, to be a river: stream, arroyo, brook, creek, rivulet and slough.

A river must have a current:

"Fresh-water lakes and ponds are bodies of standing waters distinguishable from rivers chiefly by the fact that they have no current. Frequently, also, they are inaccessible from the sea or from a distance without trespassing upon private lands. The fact that there is a current from a higher to a lower level does not make that a river which would otherwise be a lake, nor does a lake lose its distinctive character because there is a current in it for a certain distance tending towards a river which forms its outlet. On the other hand, the fact that a river broadens into a pond-like sheet with a current does not deprive it of its character as a river.

"Where it is admitted or not denied that the water is not a lake or a pond, the material difference between which is in size, the only criterion by which to determine whether it is a river, is the existence of a current, and this question cannot be answered by ascertaining what appellations have been given to it."2

In Quebec v Fraser, Canada's Supreme Court wrote:

"If we were to hold that rivers navigable only by the assistance of the tide, are not navigable within the meaning of the law, we would simply put out of the public domain a considerable number of large rivers, which in every country have been considered navigable and are used for transportation of commercial commodities. What is navigability of a river is a question of fact....

"[I]t is not necessary that navigation should be continuous, as contended for by the respondent. A river may not be capable of navigation in parts, like the St. Lawrence at the Lachine Rapids, at the Cascades, Coteau and Long Sault rapids, the Ottawa at Carillon, the Chaudière and the Chats rapids, and yet be a navigable river, if, in fact, it is navigated...."

In 1893, Justice Lotz of the Appellate Court of Indiana wrote, in Board of Commissioners of Shelby County v Castetter:

"Every river is a running stream of water, but not every running stream of water is a river. A running stream may be artificial, but a river is a body or water issuing ex jure naturae from the earth. The word watercourse is a broader and more comprehensive word than river. In its most general sense, it means a course or channel in which water flows. In its legal sense, it consists of bed, banks, and water, a living stream confined in a channel, but not necessarily flowing all the time, for there are many watercourses which are sometimes dry. It is a condition of the earth's surface brought about by the processes of nature. It is this fact - the natural condition - that gives rise to the rights of the public in natural watercourses."

In R v Meyers, Justice Macaulay of the Upper Canada Court of Common Pleas wrote this, of the civil law as regards to a river:

"According to the civil law all rivers were distinguished as public or private; such rivers were called public rivers which maintained a perpetual stream, and were capable of being navigated; and an express interdict was made that nothing should be placed in a public stream whereby the navigation might be prejudiced. The civilians held that a stream might acquire the denomination of a river either by its magnitude or by the common acceptation of the neighborhood. A river was distinguished from a common current occasioned by land floods, because one had always a constant stream regularly confined within banks, and the other might be casual and temporary, flowing over a level. A temporary inundation by floods was not accounted to deserve the appellation of a river, or to alter the original private nature of the soil. Wherever a public stream flowed, though it were through a private channel artificially made, yet it constituted that place public; but, on the other hand, if the stream ceased to flow over it then it became again private."

REFERENCES:

  • Board of Commissioners of Shelby County v Castetter, 33 N.E. 986
  • Errington v Jessop, 59 FLR 99 (1982)
  • NOTE 2: Gould, John Melville, A Treatise on the Law of Waters, 3rd. ed. (Chicago: Callaghan & Company, 1900), at p. 110. Emphasis added. Quoted with approval in Gibbs v. Village of Grand Bend, 124 DLR (4th) 449 (ONCA)
  • Quebec v Fraser, 37 SCR 577 (1906)
  • R v Meyers, 3 U.C.C.P. 305 (1853; Note 1)

Categories & Topics:


Always looking up definitions? Save time with our search provider (modern browsers only)

If you find an error or omission in Duhaime's Law Dictionary, or if you have suggestion for a legal term, we'd love to hear from you!