Law Commons^™

Determining The Parameters Of The Navigation Servitude Doctrine, Theresa D. Taylor

Vanderbilt Law Review

By abandoning traditional tests of navigability and defining new criteria for applicability of the navigation servitude, the Supreme Court has overlooked historical and precedential bases of the navigation servitude. The most important policy justifications for the doctrine are the need for federal dominance over waters with potential utility for recreation, defense, and commerce, and a desire to safeguard the public's right of access to commonly owned waterways. By considering factors such as the source of improvements upon a waterway and the possible inequity of the traditional noncompensation and notice theories, the Supreme Court has indicated a willingness to subrogate such …