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What a “Navigable” Waterway is and What it Means for You as a Montana Property Owner



The big sky and mountains aren’t the only outstanding features of the Montana landscape. Coming from the lands of lakes and oceans may keep you distracted from the fact that Montana, in fact, has a huge basis of lakes, streams, and rivers as well.


Approx. 1,494 sq. miles of Montana is described as water-based. While this only compromises 1% of the entire state, compared to the 3% Mississippi has (1,509 sq. miles) it’s hard to think of Montana as a desert. With these vast areas of water, it isn’t just the hunters drawn to this outdoorsy wilderness, fishermen also consider Montana one of the best fishing havens around. From small trout streams to walleye infested lakes, there's a spot for everyone here. Why do you care? Because, better than extreme fishing in picturesque settings, most water areas are open to the public. Here’s how...


A Bit of Montana Waterway History


Way back when, when the original thirteen states were formed, and before Montana was known as the last best place, the waterways were extremely important to trading and traffic. A private river way back then would have been the equivalent of blocking off a highway and charging or simply not allowing you to pass through (oh, wait, tolls… ok, back to that later!). A situation such as that simply wouldn’t do and caused many fights in those earlier colonial days. Since then, a government decided to declare it a custom to make these “navigable” sources open to all, and to avoid future conflict. They did this with the Equal Footing Doctrine which made all land and mineral rights underwater areas belonging to the state as granted by the federal government. As other states became members of the union, the act followed. In 1953, the government made it official that “title to and ownership of the lands beneath navigable waters within the boundaries of the respective States.'' Montana follows this rule, as such, the public is allowed to enjoy the freedom of our open riparian areas in any way they please.


As Montana is known for its openness and granting its citizens the right to its beautiful lands, the privatization of these open waterways became controversial as people began moving in. In 1953, the legalities and issues were settled with the Montana Stream Access Law. The law, defined in 1985, allowed for the full recreational use of any waterways below the high watermark.



How Does This Affect Property Boundaries?


The Montana Stream Access Law is indeed unique to our area and can lead to some interesting disputes, but also a more enjoyable experience for all. What this law truly means is that, as long as you do not leave the lake, river, or stream for a hike, you can be anywhere in the water for as long as you wish. Kayaks, boats, tubes, waders, and swimming are all considered recreational activities that could take you there, and, as long as you don’t decide to camp for the night, you are free to truly explore.


Should I be Concerned About Buying Waterfront Property and Trespassing?


Landowners with the property next to one of these waterways have the true advantage here. Not only are you allowed these open waterway enjoyment rights, but you also have direct access. See, just because we can use the waterways, it doesn't mean you can simply cross land to get there, you have to take the old fashioned route like good ole Lewis and Clark.


Before the idea of having some form of exclusive access that everyone with trespassers deters you from waterfront property, rest assured that Montana knows it’s people and thought this idea through thoroughly. Not only do most public land areas abut riparian zones, but we also have an ample supply of fishing access sites throughout the state. Even where you may not see a person for miles, a brown fish is sure to greet you!


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