Last edited Wed Jul 22, 2015, 11:08 AM - Edit history (2)
In my home state of Pennsylvania, any Stream of water that does NOT Start on your property is a public highway. This follows English Common law and that has been the law for CENTURIES in England. Now, the Pa Fish and Boat commission takes the position that the test in Pennsylvania is Navigable use in the 1700s, i.e. could it been used by canoe? or even by foot? Recreational use today does not count, only if it could have been used in the 1700s by canoe or foot (this would excludes stream running down mountain sides, but not steams one could wade or pull a canoe up on). In most cases the difference between these two positions is meaningless but I do mention the difference. Please remember in either case it is trespassing if you step outside the stream bed.
http://www.fishandboat.com/water/public/faq_public_waters.htm
http://fishandboat.com/anglerboater/2000/00julaug/lehicort.htm
http://caselaw.findlaw.com/pa-superior-court/1414406.html
http://www.flyfishohio.com/who_owns_the_river.htm
Texas has a similar rule, but it is technically restricted to "The waters of public navigable streams are held by the State in trust for the public, primarily for navigation purposes.” Carrithers v. Terramar Beach Com. Imp. Ass’n, 645 S.W.2d 772, 774 (Tex. 1983)
https://tpwd.texas.gov/publications/nonpwdpubs/water_issues/rivers/navigation/riddell/ownershipofbeds.phtml
Please note, In Pennsylvania, the stream is a public highway, the land UNDERNEATH the stream, is owned by the land owner UNLESS it is clear by the deeds the stream is NOT part of his property (i.e.the deed say the land extends to "the edge of the creek" that means his property ends at the creek bank and thus does NOT own the land underneath of the creek),
On the other hand, it appears Texas laws says such streams are always the property of the state for that was the law under Spanish Civil law. Texas has granted some exception to that rule, relating to oil rights, but that had to do with oil rights NOT use of the stream of water for any other purpose. Texas also uses the term "perennial streams" in its laws, which implies streams of water that almost never run dry. Most of the land involving grants of land prior to 1837 never included such streams for under Spanish Civil Law, even the river beds under such streams remained the property of the state (Under Spanish Civil Law, when one purchased land, it was only surface and water rights, mineral rights remained with the King, this rule does not seemed to have survived in Texas, except as to river beds, after 1837).
Texas further defined navigable waters as any stream that averages 30 feet from bank to bank, even if the actual water flow is much smaller (and short distances of less then 30 feet between areas where the distance is wider then 30 feet still makes the river "navigable" i.e. the stream must be permanently less then 30 feet from bank to bank not just a small distance.
https://tpwd.texas.gov/publications/nonpwdpubs/water_issues/rivers/navigation/riddell/navigability.phtml#infact
I bring up Pennsylvania and Texas to show that what is "Navigable" varies from state to state, but the concept that such waters are public highways is universal in the US and has been since before the Settlement of this country. thus you need to research your state's laws to be on firm ground unless it is clear the water way you are using is "Navigable".
In fact prior to the 1890s, it was NOT criminal to trespass on someone's fields (It was criminal to enter any dwelling or the "close" of that dwelling, generally what we today would call the yard, but it was NOT criminal to cross someone's field or woodlot).
Now prior to the 1890s, it was a Civil Trespass to cross someone's field or wood lot or other non dwelling land, but the trespasser could only be held liable for any damage he or she did well trespassing.
This changed starting in the 1890s as an effort to keep Mother Jones out of the coal mine areas. Pennsylvania and other states expanded Criminal Trespass to any privately owned land that the owner put up "No Trespassing" signs on (New York State went as far to extend such criminal trespass to any entrance onto private property, posted or not).
These laws were anti-labor in intent and purpose but adopted in terms to sound like that was NOT the intent of the people who wanted these laws passed. Mother Jones worked around these laws by walking up a West Virginia Stream that ran through a coal area so she could talk to the miners. It was early spring/late winter and the water was cold, but she could NOT step out of the water for she would have been arrested for trespassing (and at the time she was in her late 50s early 60s). She was NOT Trespassing as long as she stayed on the public road which was the cold stream.
As to air rights over your land, that was decided in 1946 by the US Supreme Court to be federal property. See United States v. Causby, 328 U.S. 256 (1946)
The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court.
No one has defined what those "immediate reaches above the land" remains the property of the landowner, but the above case indicates that even tree top level, as long as it does NOT cause actual "damage" to the land or buildings on that land, is NOT trespassing for that part of the airspace is public domain.
The FAA regulations states 500 feet is minimum safe flying height, but the law is to protect aircraft NOT to defined property rights, see 14 CFR §§91.126:
§91.119 Minimum safe altitudes: General.
Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes
(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.
(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface—
(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and
(2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph (c) of this section.
http://www.ecfr.gov/cgi-bin/text-idx?SID=bfdd417c8b61b54fed464cffef71eaaa&node=se14.2.91_1119&rgn=div8 Some other websites:
List of Oregon "Navigable" waterways:
http://www.oregon.gov/dsl/NAV/Pages/navigwaterways.aspx
New York Department of Environmental conservation and its position that it is criminal trespass to enter property even in absence of a "No Trespassing" sign:
http://www.dec.ny.gov/outdoor/8371.html
Now, some rivers in Virginia were sold, when Virginia was a colony, to private land owners, and even through they are navigable, these are private:
http://midcurrent.com/conservation/virginia-anglers-sued-in-jackson-river-access-suit/
The "Floating log" test of Navigable waters in Michigan (and in many other states):
A navigable inland stream is (1) any stream declared navigable by the Michigan Supreme Court; (2) any stream included within the navigable waters of the United States by the U.S. Army Engineers for administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States;
(3) any stream which floated logs during the lumbering days, or a stream of sufficient capacity for the floating of logs in the condition which it generally appears by nature, notwithstanding there may be times when it becomes too dry or shallow for that purpose; (4) any stream having an average flow of approximately 41 cubic feet per second, an average width of some 30 feet, an average depth of about one foot, capacity of floatage during spring seasonal periods of high water limited to loose logs, ties and similar products, used for fishing by the public for an extended period of time, and stocked with fish by the state; (5) any stream which has been or is susceptible to navigation by boats for purposes of commerce or travel; (6) all streams meandered by the General Land Office Survey in the mid 1800's
http://www.michigan.gov/documents/Water97e_142928_7.pdf 
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