denjac Posted June 20, 2009 Posted June 20, 2009 Son went and talked to Conservation agent today in Joplin over the trespass deal on Jenkins. He said by definition Jones and Jenkins are public waterways as they can float a log or canoe,,But Have not been deemed so by the conservation dept or by any other State enity. And it has never been tested in court as a public waterway. He said in most cases Judges side with the land owner on trespass with these two creeks. County bridges and right of ways grant acsess to rivers and streams for the public waterways that are deemed public. So its sounds like they are going to have to pay the piper. Bummer Dennis Boothe Joplin Mo. For a nation to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle." ~ Winston Churchill ~
Buzz Posted June 21, 2009 Posted June 21, 2009 Son went and talked to Conservation agent today in Joplin over the trespass deal on Jenkins. He said by definition Jones and Jenkins are public waterways as they can float a log or canoe,,But Have not been deemed so by the conservation dept or by any other State enity. And it has never been tested in court as a public waterway. He said in most cases Judges side with the land owner on trespass with these two creeks. County bridges and right of ways grant acsess to rivers and streams for the public waterways that are deemed public. So its sounds like they are going to have to pay the piper. Bummer It's a possibility that the judge hearing this case might just deem this creek navigable. I've been there and I guarantee you could float a canoe down it. We walked it only a little ways before we had to turn around because of the depth. The court system is generally lazy. If you could bring them something to actually look at, pictures, court cases, etc. the outcome might be different. Buzz P.S I hope the piper loses this time. If fishing was easy it would be called catching.
denjac Posted June 21, 2009 Author Posted June 21, 2009 The conservation agent said that to get it officially declared a public waterway, be prepared to take it all the way to the Missouri Supreme court. I know the judge real well hearing the case. Might show up with the boys and show him the wildlife code book and some pictures. Who knows? Like a Lawyer once told me. Good Lawyers know the law, Great Lawyers know Judges! Dennis Boothe Joplin Mo. For a nation to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle." ~ Winston Churchill ~
Chief Grey Bear Posted June 21, 2009 Posted June 21, 2009 I would definitely take a copy of the court ruling that I posted to you. I printed it if off myself and it is only 10 pages. I think that may be the most important weapon in your arsenal. I would also take a copy of this picture. If like, I will go and get you a better picture and send it to you. Is Dally gonna be the judge? Chief Grey Bear Living is dangerous to your health Owner Ozark Fishing Expeditions Co-Owner, Chief Executive Product Development Team Jerm Werm Executive Pro Staff Team Agnew Executive Pro Staff Paul Dallas Productions Executive Pro Staff Team Heddon, River Division Chief Primary Consultant Missouri Smallmouth Alliance Executive Vice President Ronnie Moore Outdoors
denjac Posted June 21, 2009 Author Posted June 21, 2009 [ Is Dally gonna be the judge? Nope, Judge Schoeberl. That pic says a mouthfull. thanks Dennis Boothe Joplin Mo. For a nation to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle." ~ Winston Churchill ~
Members shadman Posted June 21, 2009 Members Posted June 21, 2009 Conservation agent for Jasper county also told me that Dry fork, White Oak, Jenkins and Jones creeks have not been classified at all, therefore they are private, non navigable streams that are controlled by the landowner. In order for them to be "classified", it has to be done in a state court. county judges do not have the power to do this. He also said that these streams are large enough to float down but no one has ever taken it to court. This is a loophole that needs to be fixed.. Anyone who has waded those streams know that they are definately capable of floating a canoe down. who is in charge of deeming these streams public non-navigable?Only creeks in this county that have gone to trial, are center creek and spring river. One of the great things about this state is our public waterways,(or so i thought they were public) which nazi landowners are trying harder and harder to control. I think its time to stand up for our rights as fisherman and bring this issue to the public! In the last 5 years, 3 cases on Jones creek, and 3 cases on Jenkins creek, have gone to court, and in each case the judge ruled in favor of the landowner. Before long Missouri regs will be as messed up as Kansas if we dont do something.
fishinwrench Posted June 21, 2009 Posted June 21, 2009 If the stream is of floatable size most of the time, and has ever been "used for commerce" then it should be classified as a public waterway...or "navigable stream". The key term in your (our) favor is "used for commerce". The definition includes removal of water or minerals resulting in profit. So if anyone has ever sold gravel from the stream then you have a good case, should it go to court. Providing that you access the creek legally, from a public right of way.. County road district crews get gravel from nearby streams to build and repair tax funded roads and low-water bridges all the time. If they have the right to do that then you (taxpayer) have a right to float or wade in it. Right ?
denjac Posted June 21, 2009 Author Posted June 21, 2009 Some more info. The key wording though is water that has been deemed navigable. I wonder if we have a lawyer on OAF that wants a pro bono case??? Trespass on private property is a STATE issue. Thus, if you are cited for trespassing, you will face MO courts using MO law and legal precedent. However, the Freedom of Navigation Act addresses this issue on navigable waterways with well-established federal case law. Thus, if someone (private party OR government entity) denies you freedom of movement on a navigable waterway, YOU can sue THEM for a violation of your civil liberties in FEDERAL court. Furthermore, most attempts to deny such movement include an assault, terroristic threats, hunter/angler harassment, or even unlawful restraint. And most of these are higher crimes than trespassing. But...in MO and AR...if you are NOT on a known navigable waterway, you CANNOT legally set foot on the stream bed without landowner consent. Property in MO is owned to the "center of the stream bed." Look at some legal property descriptions on deeds. If the stream is a navigable waterway (meaning it was ever used for commercial navigation...including recreational activities for hire, floating logs or rafts of goods to market, or commercial trapping/fishing) then you have a right to walk/stand/wade on the stream bed below the MEAN (average) HIGH WATER MARK Dennis Boothe Joplin Mo. For a nation to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle." ~ Winston Churchill ~
Members shadman Posted June 21, 2009 Members Posted June 21, 2009 If the stream is of floatable size most of the time, and has ever been "used for commerce" then it should be classified as a public waterway...or "navigable stream". The key term in your (our) favor is "used for commerce". The definition includes removal of water or minerals resulting in profit. So if anyone has ever sold gravel from the stream then you have a good case, should it go to court. Providing that you access the creek legally, from a public right of way.. County road district crews get gravel from nearby streams to build and repair tax funded roads and low-water bridges all the time. If they have the right to do that then you (taxpayer) have a right to float or wade in it. Right ? The sheriff that responded to the call told me, and the conservation agent also said, that i entered the creek from county property. we parked on side of road at low-water bridge and entered the water there. Also we left on our own accord. Sheriff also stated that its only trespassing if u refuse to leave. Conservation agent said that law enforcement hands are tied if the landowner wants to prosecute.
denjac Posted June 21, 2009 Author Posted June 21, 2009 used for commerce, hmmmm. Wouldnt the new resort on Jenkins creek fall under that? Dennis Boothe Joplin Mo. For a nation to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle." ~ Winston Churchill ~
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