Use Of Public Waterways Includes Streambeds - Even On Private Land

[shadman]

Well JD, he didn't really get bent out of shape so I kept my cool too. I did tell him that it is a public waterway and that I do have a right to fish it but, that I would respect his wish and travel back the way I came. I did also tell him though that I will be back and I will fish it. He didn't say a word and we walked off.

Then while fishing Jenkins earlier this year, a land owner stopped by to see how I was doing and said "Just don't leave me any trash." I told him would not be a problem and thanked him for his kindness.

i ran into a very angry landowner on jenkins creek, that cussed me and my brother up and down and immediately called the sheriff, we were just wading with a pole and a bait bucket, nothing else, we accessed the creek via county property at a low water bridge, we left the way we came in and went to a diff location, sheriff caught up to us there and took our info but no citation was given. week later i recieve a court summons for 1st degree trespassing!.. here is the catch, yes the law states the if u can float a canoe down it then it is public as long as u dont access from private property,,,. here is the doozy, jasper county MDC agent told me that if a stream has not been legaly classified then it defers back to being private property. only spring river and center creek have been deemed as such. Jones creek, white oak, Jenkins, dry fork creeks all have not been deemed by a state agency yet. my day in court is coming and my voice will be heard. these laws need to be fixed.

[ozark trout fisher]

i ran into a very angry landowner on jenkins creek, that cussed me and my brother up and down and immediately called the sheriff, we were just wading with a pole and a bait bucket, nothing else, we accessed the creek via county property at a low water bridge, we left the way we came in and went to a diff location, sheriff caught up to us there and took our info but no citation was given. week later i recieve a court summons for 1st degree trespassing!.. here is the catch, yes the law states the if u can float a canoe down it then it is public as long as u dont access from private property,,,. here is the doozy, jasper county MDC agent told me that if a stream has not been legaly classified then it defers back to being private property. only spring river and center creek have been deemed as such. Jones creek, white oak, Jenkins, dry fork creeks all have not been deemed by a state agency yet. my day in court is coming and my voice will be heard. these laws need to be fixed.

I'll be cheering for you.....................

[UAK squirrelpie]

do yourself a favor and get a lawyer if you haven't already. 1st degree trespass is a class B misdemeanor which means it's a criminal offense and unlike a minor traffic citation it will show up on a criminal background check if you're convicted.

[shadman]

I'll be cheering for you.....................

im pretty positive that the charge will be dropped,, i left when asked, i parked and entered the river on county property, and the sheriff that responded didnt give me a citation. he was actually on our side and said he would try to talk to the landowner to calm him down. didnt work i guess. i will be so amazed if judge schoeberl actually convicts me of tresspassing. What i would like to accomplish is getting these streams designated. it was my understanding from what the local MDC agent told me that in order for a stream to be classified it has to go to a state court by someone.. im sure we all remember the court case involving canoers on shoal creek., but why does someone have to spend a fortune on attorney fees to get a stream classified? Isnt that what the MDC is supposed to do? Shouldnt this already be done? I want answers. I also want rights to be able to wade and float my creeks... agin the point was made earlier that morons that trash and party have ruined it for a lot of "true fisherman". but arent the laws there for this purpose? shouldnt partying and littering be a separate issue from fishing, or even swimming in some places? I iss the days of low water bridges and rope swings and day long wading trips for smallies..... where is the justice? anyway, its time someone stood up for Missouri fishing rights. I just might get an attorney and go the distance if possible. the manner in which the landowner treated us was also an issue i am beginning to think. This is what happened.... he came from across the river on a high bank(above a hole that was very deep i might add) he yelled down and actually startled me,, he said" GET THE BLEEP OFF MY BLEEPIN PROPERT RIGHT NOW! i said in shock " excuse me"? He said, WHAT PART OF THAT DONT U BLEEPIN UNDERSTAND U BLEEPIN BLEEPHOLE! GET OUT NOW OR I CALL THE SHERIFF! My brother told him that we were in a stream and that he knew his rights and we were not on his property nor would we get on his property for any reason. the man then says " THATS FINE! U BLEEPIN BLEEPERS CAN JUST GO TO JAIL! and he opened his cell and made the call. I told my brother, lets just go there are plenty other places we can go to fish. we then left. we waded back to the bridge and waitedfor the sheriff but none came so we thought he was bluffing us. anyway we just left. went to another bridge and was preparing to go when the sheriff arrived and said he was sorry but we couldnt go down there and fish either because the same man owned that as well, the sheriff took our info and told us he has alot of problems with that man over same issues, but since we left it shouldnt be a problem.... seems like no one had a problem but that landowner.

[ozark trout fisher]

im pretty positive that the charge will be dropped,, i left when asked, i parked and entered the river on county property, and the sheriff that responded didnt give me a citation. he was actually on our side and said he would try to talk to the landowner to calm him down. didnt work i guess. i will be so amazed if judge schoeberl actually convicts me of tresspassing. What i would like to accomplish is getting these streams designated. it was my understanding from what the local MDC agent told me that in order for a stream to be classified it has to go to a state court by someone.. im sure we all remember the court case involving canoers on shoal creek., but why does someone have to spend a fortune on attorney fees to get a stream classified? Isnt that what the MDC is supposed to do? Shouldnt this already be done? I want answers. I also want rights to be able to wade and float my creeks... agin the point was made earlier that morons that trash and party have ruined it for a lot of "true fisherman". but arent the laws there for this purpose? shouldnt partying and littering be a separate issue from fishing, or even swimming in some places? I iss the days of low water bridges and rope swings and day long wading trips for smallies..... where is the justice? anyway, its time someone stood up for Missouri fishing rights. I just might get an attorney and go the distance if possible. the manner in which the landowner treated us was also an issue i am beginning to think. This is what happened.... he came from across the river on a high bank(above a hole that was very deep i might add) he yelled down and actually startled me,, he said" GET THE BLEEP OFF MY BLEEPIN PROPERT RIGHT NOW! i said in shock " excuse me"? He said, WHAT PART OF THAT DONT U BLEEPIN UNDERSTAND U BLEEPIN BLEEPHOLE! GET OUT NOW OR I CALL THE SHERIFF! My brother told him that we were in a stream and that he knew his rights and we were not on his property nor would we get on his property for any reason. the man then says " THATS FINE! U BLEEPIN BLEEPERS CAN JUST GO TO JAIL! and he opened his cell and made the call. I told my brother, lets just go there are plenty other places we can go to fish. we then left. we waded back to the bridge and waitedfor the sheriff but none came so we thought he was bluffing us. anyway we just left. went to another bridge and was preparing to go when the sheriff arrived and said he was sorry but we couldnt go down there and fish either because the same man owned that as well, the sheriff took our info and told us he has alot of problems with that man over same issues, but since we left it shouldnt be a problem.... seems like no one had a problem but that landowner.

I'm very sorry about your troubles. The landowner is clearly a jerk.

But this could just be the case that gets this stream considered navigable, at least something good would come of this.

Hope he drops the charge.

[Chief Grey Bear]

http://bengal.missouri.edu/~matthewss/AgEc...watercourse.htm

Print this case and take it to court with you. It should be all you need.

[fiveweight]

From information I have read in various sources, that is not correct that a river is automatically private until deemed navigable. It sounds like the MDC agent either did not know the exact law or was just looking for the convenient way out, or just said something they heard or what sounded like common sense. After all, they have to enforce thousands of laws and can't memorize them all. I think he was wrong about that and I hope you write to the MDC office to get confirmation because it sounds really bogus. I would try to find the original source of the facts listed on this site and present them to MDC if I were you.

http://www.nors.org/us-law-menu.htm - click the link "river fact or fiction" to see what's below. Other links are good too.

Misconception: A court, or government agency, designates rivers as legally navigable. If a river isn't officially designated, it isn't legally navigable.

Fact: The U.S. Supreme Court has repeatedly ruled that "rivers that are anvigable in fact are navigable in law." If a river is physically navigable, it is legally navigable. No court or agency has to designate it as such.

Misconception: Only certain large rivers, capable of navigation by motorized ships carrying commercial freight, are legally navigable. Other rivers, where they flow through private land, belong to the surrounding landowners. The public may be allowed to run such rivers in some cases, but may not touch the banks.

Fact: Even rivers that are physically navigable only by canoe, kayak, and raft are still legally navigable. (The courts have also ruled that commercial recreational river trips qualify as commerce). Because they are legally navigable, such rivers are held in trust for the public by the states, for navigation, recreation, and fisheries. The land along them is public land up to the ordinary high water mark (which can be quite a distance from the water--it's the land where the vegetation and soil show the effects of water.) The public can use this land for walking, fishing, resting, camping, and other non-destructive visits.

Misconception: If a landowner's property deed includes the land around a river, and makes no mention of the river being public, then the river is private.

Fact: Public ownership of physically navigable rivers, including the land up to the ordinary high water mark, pre-dates property deeds. What the property deed says or doesn't say about the river is irrelevant.

Misconception: Rivers that flow through federal land (National Parks, National Forests, etc.) belong to federal agencies, whose "river management plans" can determine when, and if, navigation and recreation will be allowed.

Fact: Physically navigable rivers that flow through federal lands are still held in trust for the public by the states. River management plans must preserve the public's paramount rights to navigate and recreate on these rivers.

Misconception: Since the state "owns" the river and the land up to the ordinary high water mark, the state can sell or give away the river to private owners for various projects or private uses.

Fact: The state does not actually own the river, it holds it in trust for the public for navigation, recreation, and fisheries. The state is obligated to preserve the river for these public benefits.

Misconception: Public ownership of physically navigable rivers varies from state to state, as do the public's rights to canoe, kayak, raft, walk along, and otherwise visit such rivers.

Fact: Public ownership of physically navigable rivers is the same in all states. It's a U.S. Supreme Court standard, and it includes those rivers that are physically navigabale by canoe, kayak, and raft. The public's right to visit additional non-navigable streams (those too small for even canoes, kayaks, and rafts) does vary from state to state, but this variation only applies to those small streams.

[fiveweight]

Here, too:

http://www.adventuresports.com/river/nors/states/mo-law.htm

[fishinwrench]

The definition and wording of a ...."River"..... still comes into play at the county court level. "Rivers" (as they are called) do not pose any legal trespass problems. It is when you get in to (so called) "creeks" and "streams" that it becomes an issue. Granted some "creeks" are bigger than some "rivers" but there must have been a system and reasoning for the naming of the flows (creek,river,fork,slough,ect.) when the area was originally explored and mapped, which I guess was back in the Lewis&Clark era.

If you were to present that document you posted to a county prosecutor he would quickly point out that the body of water in question is a "creek" or a "stream" ...not a "River". It recently occured to me that if it is called "such and such River" you're generally ok, but if it is called "such and such Creek" then you may not be.

The term "fork" apparently has some significance also, I think when "fork" is part of a streams name, it links it to the larger system making it a definite part (headwater possibly) of the larger "river" that it feeds.

[Al Agnew]

Okay, we've hashed this out before but here goes again...I guarantee you my "facts" are pretty straight.

The NORS stuff has been publicized for a number of years, but I guarantee you that it has made NO difference whatsoever in how states decide which streams are usable by the public and which aren't. And it makes absolutely no difference whether the waterway is named "creek", "river", "fork", "prong", and any other possible name. You'd be hard-pressed to convince anyone that the upper end of any river in the state except Current River is "navigable". And you'd be hard-pressed to convince anyone in power that Huzzah Creek, Courtois Creek, Beaver Creek, and a number of others are NOT "navigable", given that there are canoe rentals of long standing on all of them.

The "rulings" that NORS cites are simply NOT the rulings that are used in determining whether the public can use a stream. Each state DOES have its own set of rulings, and none of them go by the NORS stuff. While it may actually be a true ruling, in order to make it apply to any state or any stream, you're going to have to go to the U.S. Supreme Court and get it to declare it so. While it would certainly be nice if there WAS one ruling that everybody goes by, it ain't reality. You have states like Wyoming and Colorado that routinely rule that some streams and stream sections are private, and nobody can fish them or even get on them without permission from the landowners. You have Illinois, which just allowed one big landowner to close a long section of the Vermillion River, a floatable stream. You have Virginia, which has ruled that land grants originally granted by the King of England when the state was a colony are still in effect, and the people that hold them can close their section of floatable stream to everybody. On the other hand, you have a state like Montana that has ruled that if you can legally gain access to any fishing stream at public land (bridge crossings and public accesses) or by permission from ONE private landowner through his land, you can go ANYWHERE on that stream...UNLESS it's a spring creek.

The REALITY is that Missouri and Arkansas go by their own legal precedents, and no prosecutor, sheriff, or court will pay the LEAST bit of attention to the NORS cited ruling. Period. Missouri goes by the Elder vs. Delcour ruling by the MO Supreme Court, which leaves a lot of gray areas on smaller streams. Arkansas goes by a ruling based upon a case on the Mulberry River a few decades ago. Both are pretty similar, and basically give the public the right to float and fish and camp within the high water banks of streams that are big enough to have been used for commercial purposes in the past, including floating logs to market. Where the MDC agent was right is that unless the stream is big enough (and well known enough) to be a "float stream", with a long tradition of floating and canoe renting, if a landowner decides to try to run you off it, you are at the mercy of the sheriff and county prosecutor. If they wish to prosecute you for it, you will have to fight it in court. Only if you then WIN will a precedent have been set, and the precedent will serve the purpose of "listing" the stream as usable by the public. Some counties and county officials are NOT friendly to landowners trying to run people off streams that have been used by the public in the past, and will, like the Franklin County officials in regard to Indian Creek, say that the stream IS legally usable by the public (even though several landowners continue to run people off it, and the county people are not too diligent about making them stop). However, money talks, and some county officials are quite willing to take the side of the rich landowner over the poor angler, maybe figuring that he'll have enough money to hire better lawyers. And as far as streams that are too small for floating and have never been floated, the county officials will almost always take the side of the landowner. The only reason there are still a lot of wadeable streams that are more or less open to the public is that the landowners don't care one way or another. Which means that if you frequent such a stream, you had BETTER be on your best behavior AND pick up after others who haven't been.

And one other thing...Missouri and Arkansas real estate law is direct opposition to the NORS stuff. The landowner DOES own the stream bed on all but the commercially navigable rivers (mostly the Missouri and Mississippi...those rivers used by barge traffic). The only thing they don't own on all other streams is the water and the organisms that live in it. The Elder vs. Delcour ruling thus gave the public an "easement" to use private land, in effect.