Ye Ol' Tresspass Thread Again

[Chief Grey Bear]

I was looking through the MDC Wildlife Code the other day and stumbled upon this:

Waters of the State: All rivers, streams, lakes and other bodies of surface water lying within or forming a part of the boundaries of the state which are not entirely confined and located completely upon lands ownded or leased by a single person or by two or more persons jointly or as tenants in common or by corporate shareholders, and including waters of the United States lying with the state. Waters of the state will include any waters which have been stocked by the state or which are subject to movement of fishes to and from waters of the state.

As I read it it looks cut and dry to me that any river stream creek or whatever you want to call it, that has fish in it, whether a land owner owns the land on both sides or not, can be legally fished by anyone gaining legal access to said body of water.

[Kayser]

But the real question is what part of said body of water can we fish? Can we walk the bank to the high-water mark, or just in the water? Or is wading even legal if someone owns the streambed? Your post refers to "waters" of the state, not necessarily to the streambed/bank.

Just curious, but what is the # of this regulation in the Codebook? What section is it in?

Rob

[jdmidwest]

Why would this issue come up anyway? If there is a body of water you desire to fish and the banks are posted, contact the owner and gain permission. If it is navigable, float thru peacefully and fish it and stay in the boat. If a landowner confronts you and asks you to leave, then he probably has the right to because he owns the land. If you feel he is wrong, return with an officer of the law and clear the matter up.

As a landowner myself, I don't have a problem with someone fishing thru my property in a peaceful manner. If someone is using the stream for hunting purposes and shoots around my livestock, then I have an issue. If someone damages property, fences, builds fires, makes camp, or otherwise makes himself at home, then I have an issue.

With all of the public access in this state, it really should never be an issue, but it does come up from time to time.

[fishinwrench]

Why would this issue come up anyway? If there is a body of water you desire to fish and the banks are posted, contact the owner and gain permission. If it is navigable, float thru peacefully and fish it and stay in the boat. If a landowner confronts you and asks you to leave, then he probably has the right to because he owns the land. If you feel he is wrong, return with an officer of the law and clear the matter up.

As a landowner myself, I don't have a problem with someone fishing thru my property in a peaceful manner. If someone is using the stream for hunting purposes and shoots around my livestock, then I have an issue. If someone damages property, fences, builds fires, makes camp, or otherwise makes himself at home, then I have an issue.

With all of the public access in this state, it really should never be an issue, but it does come up from time to time.

JDM, Which river do you own property on both sides of ? if I may ask.

[Chief Grey Bear]

But the real question is what part of said body of water can we fish? Can we walk the bank to the high-water mark, or just in the water? Or is wading even legal if someone owns the streambed? Your post refers to "waters" of the state, not necessarily to the streambed/bank.

Just curious, but what is the # of this regulation in the Codebook? What section is it in?

Rob

Chapter 20 Wildlife Code : Definitions # (59)

It is the definition of state water. Walking the bank may be tesspassing. This only pertains to the water that some land owns seem to think they own too.

[jdmidwest]

My family owns several sections of Bear Creek, probably 4 miles of it total in 5 sections. Due to gravel buildup, it is hardly a navigable stream any more. The lower sections have some deeper holes. Nothing like it was 40 years ago.

[fishinwrench]

My family owns several sections of Bear Creek, probably 4 miles of it total in 5 sections. Due to gravel buildup, it is hardly a navigable stream any more. The lower sections have some deeper holes. Nothing like it was 40 years ago.

The degree of gravel buildup would not keep it from being considered navigable any more than a tree blocking the channel would. Many "navigable" streams have portages.

There is a back-door method of determining what is considered a "navigable" waterway, the original federal definition includes any stream "used for commerce". The definition of "commerce" does include mining and/or dredging of gravel for sale. If gravel has ever been taken from a stream in question, and sold to anyone, then that classifys' it as a "navigable waterway" in federal court....but if you can't convince a county prosecutor of that, you gotta have the money to retain counsel to take it to a higher court.

I attempted to fight a trespassing case in Morgan county concerning a major tributary of Lake Ozark....but couldn't afford it.

I was charged, forced by the almighty dollar to plead guilty, and I was given a stiff fine.....but oddly enough it never showed up on my record. Whaddya make of that ?

I then formed a MDC Stream Team on the same creek It has been hard to keep volunteers helping so now it is just my family and a few friends...but we keep it free of trash and have gotten excessive dredging and dumping of RV waste stopped ALMOST entirely.

It is a cause worth fighting for, because not all landowners are kind to the waterway that runs through, or borders their property.

[Chief Grey Bear]

The degree of gravel buildup would not keep it from being considered navigable any more than a tree blocking the channel would. Many "navigable" streams have portages.

There is a back-door method of determining what is considered a "navigable" waterway, the original federal definition includes any stream "used for commerce". The definition of "commerce" does include mining and/or dredging of gravel for sale. If gravel has ever been taken from a stream in question, and sold to anyone, then that classifys' it as a "navigable waterway" in federal court....but if you can't convince a county prosecutor of that, you gotta have the money to retain counsel to take it to a higher court.

I then formed a MDC Stream Team on the same creek It has been hard to keep volunteers helping so now it is just my family and a few friends...but we keep it free of trash and have gotten excessive dredging and dumping of RV waste stopped ALMOST entirely.

It is a cause worth fighting for, because not all landowners are kind to the waterway that runs through, or borders their property.

Navigable - to pass through or over.

As in a fur trapper navigating the waterway for commerce. Precedence?

I commend you are your great work of the MDC Stream Team. As you stated, it is a very worthy cause.

[fishinwrench]

"As in a fur trapper navigating the waterway for commerce. Precedence?"

Absolutely. Commerce is commerce.....they follow the word to the letter in every other aspect.

The gray area in my case was the point where I entered the stream (at a county road bridge) and no one could come to terms with whether that was considered "trespassing" or not, one deputy advised me that I was legally within my rights to be there but warned me of a cranky shotgun totin' old man that had crossed the bridge and saw us there. I had my kids with me so I just left to avoid a scene. I went back alone later that evening because I had saw some really nice smallies earlier and a different deputy and a MDC agent showed up and said that I was trespassing and wrote me up.

I was of the thinking that where ever one public right of way (the road) crosses another public right of way (the stream) that I was within my rights to access there. That's the way it was up in Audrain/Monroe county's where I was born and raised. I researched it to death and really felt I could have beat the charge, even if I had to represent myself. But around here judges don't go for "representing yourself".

The same exact words from a lawyers mouth are heard and respectfully considered, but statements and explanations coming from me alone weren't going to even be listened to, much less considered. So I had to pay the fine and haven't been back to that stretch of water since....but I really want to someday, and hope I can without fear of breaking any laws.

[fishinSWMO]

As I read it it looks cut and dry to me that any river stream creek or whatever you want to call it, that has fish in it, whether a land owner owns the land on both sides or not, can be legally fished by anyone gaining legal access to said body of water.

I think there needs to be more legal public access to our rivers and streams. The state says they are our waters for public use, but the problem is gaining entry to those waters.

And then when on the water just what is considered legal? Some land owners think you cant step foot out of your canoe on the bank they own. Lots of unknowns for sure, or at least grey areas.

Here is a photo close to the house of some signs on a tree, the creek is about 6 feet away.