A Primer on Missouri Waterways and Water Laws that Affect Recreational Use
By: Christiaan D. Horton
Missouri is a “riparian rights” state when it comes to water law. A riparian right is “[t]he right of a landowner whose property borders a body of water or watercourse to make reasonable use of the water.” Incline Village Board of Trustees v. Edler, 592 S.W.3d 334, 338 (Mo. banc 2019). These rights arise naturally as an incident of owning land that abuts a body of water and are different from those belonging to the public generally. Id. Stated another way, “A riparian owner is an owner of land bounded by a watercourse or through which a stream flows.” Bollinger v. Henry, 375 S.W.2d 161, 166 (Mo. 1964).
Missouri courts have adopted the reasonable use standard in evaluating the riparian rights of a property owner. Heins Implement Company v. Missouri Highway & Transp. Comm’n, 859 S.W.3d 681, 691 (Mo. banc 1993). This standard does not dictate any specific rights or privileges with respect to surface waters but leaves each case to be determined on its own facts, in accordance with general principles of fairness and common sense. Id. at 689. A property owner is legally privileged to make a reasonable use of his or her land, even though the flow of surface waters is altered thereby and causes some harm to others but such owner incurs liability when his or her harmful interference with the flow of surface water is unreasonable. Id. Courts declare that liability arises when the conduct is either (1) intentional and unreasonable; or (2) negligent, reckless, or in the course of an abnormally dangerous activity. Id. The determination of the reasonableness of use of water depends upon a consideration of the interests of the riparian owner making the use, of any riparian owner harmed by it, and of society as a whole. Ripka v. Wansing, 589 S.W.2d 333, 335 (Mo.App. S.D. 1979).
In evaluating title and boundary disputes involving a waterway, navigability of the waterway is the starting point. Navigable rivers, which are essentially public highways, are those used or susceptible to being used, in their ordinary condition, as “highways for commerce”, over which trade and travel are or may be conducted. Elder v. Delcour, 269 S.W.2d 17, 22 (Mo. 1954); McKinney v. Northcutt, 89 S.W. 351, 354 (Mo.App. 1905). The factors in determining whether a stream is navigable include its size, its current or capable use, and its suitability to floating vessels that are used in customary modes of commercial travel. Id. at 23.
Missouri courts have held that navigable waters must be susceptible to use by larger vessels, not those streams which may only be navigated by canoes or other small crafts. Id. Even in a public navigable stream however, the owners of the banks have rights in the stream which cannot be hindered, including the right to be free of interference with the bed of the stream, or with the banks, or the destruction of property on the banks. McKinney, 89 S.W. at 355. Any use in a navigable stream that destroys a landowner’s rights is deemed a trespass. Hobart-Lee Tie Co. v. Grabner, 219 S.W. 975, 977 (Mo.App. 1920).
If a stream is non-navigable, and not capable of use in commerce, title to the bed of the stream remains in the owners of the banks. Weber v. Johannes, 673 S.W.2d 454, 459 (Mo.App. S.D. 1984). Where a stream or spring is a private, non-navigable waterway, there is no public right to enter upon or fish therein. Elder, 269 S.W.2d at 27 (citing Dennig v. Graham, 59 S.W.2d 699, 703 (Mo.App. 1933)). A property owner of a private spring is entitled to the quiet and peaceable possession of his or her property without the annoyance and interference of trespassers. Dennig, 59 SW.2d at 703 (granting an injunction to enjoin a trespasser from entering on and fishing in the waters of plaintiff’s private spring).
If a property owner owns the real property on both banks of a waterway, they gain special rights for protection. The traditional rule that landowners “own to the center of the stream or creek” does not apply in this instance. Many of our creeks and small waterways classify as non-navigable – they are only capable of supporting small watercraft like personal rafts, kayaks, or canoes. Of course, a pastime for many Missourians includes “floating” our beautiful streams and creeks, but his recreational use is not “commerce” and does not bestow special rights for floaters.
The trust of the above water law principles reveals that recreational users of our Missouri streams and creeks must be cognizant of landowner rights that are protected in the areas of these waterways. In most cases, it is permissible to “float on by” private property but not stop, get out, and enjoy activities on the banks of the stream or creek because doing so without the landowner’s permission constitutes a trespass. Be mindful of no trespassing signs and purple markers along these waterways and be sure to respect the rights of those landowners who may own not only to the center of the creek, but may also own the property on the other side. These owners find protection in the law from trespassers and those who may want to interfere with their property rights. A healthy respect for our environment and the quality of our outdoor experiences will allow many to enjoy these resources free from legal entanglements. If you come across a posted sign that references the Missouri Recreational Use Act, pay special attention. That may mark a spot for express permission to enjoy the banks and sandbars along the waterway. Why? This law creates tort immunity for landowners who open their land to the public free of charge for recreational use (See V.A.M.S. § 537.345 et seq.). Otherwise, be sure to “put in” at an approved location, and “take out” at the appropriate spot, but enjoy the scenery along the way as you float the main current–we are very blessed to live in the Ozarks!
© Christiaan D. Horton, 2025
