Way back when, the rivers were the highways. They were used to transport good from one location to another ... similar to our highways today. At one point, land owners were restricting commerce by shutting down access to moving beaver pelt, or whatever, to market. The government had to step in and created the river rights laws and trusts. You can imagine what would happen if a landowner next to I-5 had a deed that indicated he owned the land below the pavement and tried to shut it down for his own personal gain.
Just because deed is written in error does not mean it is valid.
At the time I was involved in the ongoing war, there was only one recorded law suit that ended in favor of the landowner and that was at the mouth of a river as it entered the ocean. (the rules are different for tidal areas)
The most recent case I'm aware of was a land owner attempting to keep boaters from landing below the high water mark on a stretch of the Wallowa River. It went to court and the judge used the AG opinion of 2005 to judge against the land owner and for the river users.
However. Like I've always said. If you do run up against a land owner who is having a fit about you fishing next to their property, unless you have a lot of money to pay for lawyers and a lot of time to spend in court, just move on and fish somewhere else. Changes are you will win the case but It can be very expensive to make a point.
Those rights date back to Roman Emperor Justinian. Here is an interesting bit of history from the Vermont Supreme Court in a case where a bass fisherman wanted to fish in a human powered craft on a lake that had been closed to use for many decades to be used a drinking water reservoir. There were some big bass in that lake and I fished it a few times after he won his case:
17. State trusteeship over navigable waters has a lengthy and somewhat mythic pedigree dating back to Roman and English law. *450 The first oft-cited origin lies in Justinian: “By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the sea-shore ....” Institutes bk. II, tit. 1, § 1 (T. Sandars trans., 1st Am. ed. 1876). Glimmers of this idea of common trusteeship are found in the Magna Carta, which, among other things, placed constraints on the crown's authority over navigable waters and fisheries. See, e.g., H. Sun,
Toward a New Social–Political Theory of the Public Trust Doctrine, 35 Vt. L.Rev. 563, 570 (2011) ( “In England, thanks to the Magna Carta, the public trust doctrine was included as part of English common law in order to restrict the Crown's proprietary control over certain natural resources.”). The extent to which these early conceptions prohibited private ownership is an open question, see P. Deveney,
Title, Jus Publicum, and the Public Trust: An Historical Analysis, 1 Sea Grant L.J. 13 (1976) (contesting the modern public trust doctrine's history in Roman and English law); see also J. Huffman,
Speaking of Inconvenient Truths—A History of the Public Trust Doctrine, 18 Duke Envtl. L. & Pol'y F. 1 (2007) (similar), but it is clear that natural resources including navigable waters were considered to be at least initially common property subject to certain public rights. As the U.S. Supreme Court has explained, this idea became part of American common law: “[W]hen the [American] Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.”
Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 410, 10 L.Ed. 997 (1842); see also
Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452, 13 S.Ct. 110, 36 L.Ed. 1018 (1892) **128 (“It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.”); cf. 1 V.S.A. § 271 (stating that English common law is the law of Vermont if “applicable to the local situation and circumstances” and “not repugnant to the constitution or laws”).
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¶ 18. Since 1777, the public trust doctrine has been entrenched in the Vermont Constitution, which reads:
The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they *451 hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.
Vt. Const. ch. II, § 67; see also R. Brooks,
Speaking (Vermont) Truth to (Washington) Power, 29 Vt. L.Rev. 877, 885 (2005) (“This provision has been [taken] to establish a public trust in Vermont's natural resources which is now recognized in her statutes and regulations.”).
City of Montpelier v. Barnett, 2012 VT 32, ¶¶ 17-18, 191 Vt. 441, 449–51, 49 A.3d 120, 127–28 (2012).
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