Definition
A right vested in the general public to pass over a body of water, regardless of whether the underlying land is publicly owned or held by a private individual. Public passage is the aquatic analog to a public highway: where a public highway secures the right to travel across another's land, public passage secures the right to travel over water situated on or flowing across another's land.
The right attaches to the water itself as a corridor of passage, not to the bed beneath it. A private landowner whose property includes or underlies a navigable body of water may hold title to the bed while the public retains the right to use the surface for passage.
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Common Language
Modern common usage (Wiktionary): "Public passage" in ordinary English means little more than a walkway, corridor, or route open to the general public — typically a physical space through which people move, such as a hallway, alleyway, or thoroughfare.
Historical common usage (Webster's 1913): Webster's does not isolate "public passage" as a compound term, but treats "passage" broadly as the act of passing or a place through which one passes; a road, avenue, or channel.
The legal meaning is narrower and more specific than the common meaning in one important respect: in law, "public passage" refers specifically to transit over water, not land. A researcher who encounters this term in a property or admiralty context and reads it through its ordinary sense — any open route of travel — will miss its technical function as a water-specific servitude distinct from a public highway.
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Common Confusion
Public passage is frequently treated as synonymous with public highway, and Bouvier's explicitly notes the synonymy while also marking the distinction. The confusion matters: a public highway is the right to pass over another's land; public passage is the right to pass over water on or crossing another's land. The two rights may coexist on the same parcel — a waterway crossing private land may be subject to public passage while the surrounding dry ground is subject to a public highway easement — but they arise from different legal principles and may be governed by different bodies of law. Conflating the two terms in historical sources can cause a researcher to misread the scope of a claimed right.
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Why It Matters in Research
The term's significance is navigational (in both senses). In property law research, public passage sits at the intersection of easement doctrine, riparian rights, and the public trust doctrine. Researchers working in historical sources should be alert to several traps:
First, the term appears infrequently in American sources compared to its English common law antecedents. The references in Bouvier's — Carthew 193 and Hammond's Nisi Prius 195 — are English authorities, and much of the foundational doctrine derives from English common law regarding navigable rivers and tidal waters. American courts absorbed this framework but often used different terminology, including "right of navigation," "right of passage," "public easement," and "navigational servitude." A researcher who searches only for "public passage" in American case law will miss a substantial body of functionally equivalent doctrine.
Second, the relationship between public passage and the public trust doctrine is essential context. The public trust doctrine, as developed in American law following Illinois Central Railroad v. Illinois (1892), holds that certain waters and submerged lands are held in trust by the state for public use. Public passage as a common law right maps imperfectly onto the trust doctrine, which is broader and carries constitutional dimensions. Researchers should treat the historical dictionary definitions as describing the common law baseline, with the public trust doctrine representing the more developed modern framework.
Third, the right of public passage over water is distinct from questions of title to the riverbed or lakebed. Ownership of the bed does not extinguish the public's right of passage, and confusion between these issues is common in older titles and conveyances. A deed purporting to convey the bed of a navigable waterway does not necessarily convey the right to exclude the public from surface passage.
For corpus researchers: the term "public passage" in its technical legal sense is most likely to appear in pre-twentieth-century property cases, riparian rights disputes, bridge and ferry franchise litigation, and treatises on real property and water law. In modern sources, look instead for "navigational servitude," "public access," "riparian easement," and "public trust."
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Historical Dictionary Support
Black's and Bouvier's converge on the core definition — a public right of passage over water — and both emphasize that the right exists independently of whether the underlying land is publicly or privately owned. Bouvier's is the more instructive of the two, drawing the explicit contrast with public highway and citing English authority, which reflects the doctrine's common law origins.
What both sources leave unaddressed is the mechanism by which the right arises. Neither dictionary specifies whether public passage derives from dedication, prescription, navigability as a matter of law, or the public trust doctrine. This omission is characteristic of mid-nineteenth-century legal lexicography, which tended to describe rights without fully theorizing their source. Researchers relying on these definitions alone will have the what without the why, which becomes significant when the right is contested or when its scope is disputed in litigation.
Neither source addresses tidal waters separately from freshwater rivers and lakes, a distinction that carries independent legal significance in both English and American law. The tidal/non-tidal distinction affects which sovereign — federal or state — holds the underlying trust interest and may affect the scope of the public's right.
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Jurisdictional Note
The scope of public passage rights varies significantly by state, particularly as between states that follow the English common law navigability test (tidal waters only) and those that apply the broader federal or commerce-based navigability test. Western states, shaped by prior appropriation doctrine and federal land grants, may treat public water access rights differently than Eastern riparian states. Researchers should not assume that the common law baseline described in Bouvier's and Black's reflects the law of any particular jurisdiction without independent verification.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia, Property_151: Public Trust Doctrine — Navigable Waters, Beaches, and Public Access
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