What are Public Rights?

Pablo Garcia

In the US, public rights are rights that belong to the citizens, but which are maintained and defended by governmental authority. Citizens can exercise these rights but do not enforce them. They are most often exercised in the enjoyment of natural resources and lands held in public trust and are protected by federal, state, and local governments.

Up to the high water mark, rivers are public property in the United States.
Up to the high water mark, rivers are public property in the United States.

An example of the exercise of public rights is the use of rivers and waterways. Rivers and riverbanks up to the high-water mark are held in trust for public use. Whether a river runs through privately owned land does not prevent its public use. No property owner can own any portion of a navigable river. The ability to use any portion of a river for recreational purposes such as canoeing, boating, or fishing makes it by legal definition navigable.

The exercise of a public right includes canoeing on any navigable river.
The exercise of a public right includes canoeing on any navigable river.

The high-water mark of a riverbank is generally considered the highest point to which water rises in a given year. Protected “floating easements” allow the public to travel portions of the banks of rivers that may not be owned by the state. There also cannot be privately owned fish stocks in navigable waterways.

State and federal agencies also maintain tidal waters in public trust, even if the surrounding land had historically passed into private hands. The foreshore of tidal waters, that part of the shore between low-water mark and high-water mark, is protected for fishing, swimming, or any lawful purposes. Private ownership of crustacean beds is prohibited in tidal waters.

Federal and state laws restrict the alienation of public trust land for private purposes. However, state governments or federal agencies may build structures on public trust land in order to improve its use by the public. Government agencies are required to maintain public trust lands to ensure their continued use. Legal branches of government like state attorney general offices enforce citizens’ rights to trust resources through litigation.

Public rights extend beyond natural resources to rights of way through private land. These rights of way exist in the US and throughout much of Europe. There are public walkways, trails, bridle paths, and bike paths. They are designed and maintained by governmental authorities at all levels. The authorities may alter or change a public way or add restrictions to its use if these changes are in the public interest.

Sometimes land is purchased by a government entity specifically for the exercise of public rights. Often, private land is dedicated to public use and then maintained by a governmental agency. The agency is responsible for preventing any misuse or interference with public rights to enjoyment of the public way. Government agencies also enforce the rights of disabled citizens to the use of public ways.

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