Trespassing River Laws

[redbud]

outside bend,a state right of way is not for the public to use .It is for the state to use for maintenance and repair.Most of the time a right of way is on private property.

[fishinwrench]

outside bend,a state right of way is not for the public to use .It is for the state to use for maintenance and repair.Most of the time a right of way is on private property.

Correct me if I'm wrong, but Pulling your vehicle directly off the side of the road, and leaving it there temporarily to walk or ride a bicycle down the road, for whatever reason, is not considered trespassing (or infringing on private property) in any Missouri county that I am aware of.

[kkirchmer]

Correct me if I'm wrong, but Pulling your vehicle directly off the side of the road, and leaving it there temporarily to walk or ride a bicycle down the road, for whatever reason, is not considered trespassing (or infringing on private property) in any Missouri county that I am aware of.

I spoke to the Conservation Agent for Madison County this morning and he said a lot of it is up to the descretion of the agent and sheriff. If you are wading a stream that has private property on both sides technically you can be charged with trespassing since the water is a public resource but the ground it flows on is not. It's illegal to park on the side of a county road but you may or may not get a ticket depending on the sheriff and also if you park on the edge of someones property technically it is trespassing if you don't have permission but if you do get cited it is ultimately up to the prosecutor for the county if you will be charged since it requires a court hearing.

It's not worth the trouble in my mind, there are plenty of places to fish and a lot of really nice property owners who will allow you to fish if you ask and respect their property. It's the same old story a few ruin it for everyone so I can understand the property owners side if they have had people leave trash or destroy property.

[redbud]

check my post on conservation issues" New laws may devastate..."I own a large chunk of land over here on big sugar,and I deal with this all the time.PM me and I can grant access.

[awhuber]

Most of the county roads are not owned by the counties. Here in Dent co. out of the 600 some odd miles of road the county acually owns around 6 miles of road. A person only has the "right of way" across my property on the county road, no other rights( parking, wood cutting, hunting, etc are allowed.

[FlyFishinFool]

Laws in different states & counties vary according to access from roadway/bridge right-of-ways. Of course, many times it is up to the interpretation and discretion of the individual law enforcement officer - even if he is wrong you cannot get anywhere arguing with them.

Several people touched on the key issue; I think the issue the original poster ran into was that he and his buddy walked up & down stream. In Missouri, the land owner "owns" the land under the stream, and if they own property on only one side of the stream then they own the land out to the middle of the river. If the water is large enough to be considered navigable, then you have the right to float it and fish it, regardless of who owns the land. However, this does NOT mean you can get out of a boat or canoe and wade, even to pull a canoe through a low spot - that means you are tresspassing because you are walking on someone's private property. So when your buddy was walking up/down the stream he was tresspassing on the farmer's land, and that individual had the right to call the sheriff and file a complaint.

As someone else noted, unfortunately there have been so many slobs trash a lot of streams, that landowners are often forced to close access just to keep their property from becoming garbage dumps. The best option was also posted here - talk to the landowner and ask permission before you fish the stream; most of the time they will say yes. They just want to know who is on there property.

[ozark trout fisher]

If the water is large enough to be considered navigable, then you have the right to float it and fish it, regardless of who owns the land. However, this does NOT mean you can get out of a boat or canoe and wade, even to pull a canoe through a low spot - that means you are tresspassing because you are walking on someone's private property.

I could be wrong, but I think that's actually incorrect. I believe that the stream-bed of a navigable river is considered a public resource up to the high water mark, allowing anglers to wade, fish, and camp on the gravel bars of navigable streams.

But the problem lies in the fact that it is extremely unclear which streams are in fact navigable. The larger rivers (the Black, Meramec, Current, Jacks Fork, Gasconade, Osage, and a few I'm not thinking of) are fairly securely in the public domain, which means that you can wade, fish, float, and camp below the high water line. But there is a huge gray area. Smaller streams like Little Piney, the Castor, and Huzzah Creek are floatable much of the time, but it still very unclear whether or not they are navigable waters. As Fishinwrench said, that is probably more up to the county prosecutor than anyone else, unless you have the money to get a lawyer and fight them on it.

On a less legal note, I firmly believe that all flowing water should be in the public domain. The property owner didn't create the stream, so what right does he have to tell me that I can't fish it, especially if I enter the stream on a public easement?

[kkirchmer]

I could be wrong, but I think that's actually incorrect. I believe that the stream-bed of a navigable river is considered a public resource up to the high water mark, allowing anglers to wade, fish, and camp on the gravel bars of navigable streams.

But the problem lies in the fact that it is extremely unclear which streams are in fact navigable. The larger rivers (the Black, Meramec, Current, Jacks Fork, Gasconade, Osage, and a few I'm not thinking of) are fairly securely in the public domain, which means that you can wade, fish, float, and camp below the high water line. But there is a huge gray area. Smaller streams like Little Piney, the Castor, and Huzzah Creek are floatable much of the time, but it still very unclear whether or not they are navigable waters. As Fishinwrench said, that is probably more up to the county prosecutor than anyone else, unless you have the money to get a lawyer and fight them on it.

On a less legal note, I firmly believe that all flowing water should be in the public domain. The property owner didn't create the stream, so what right does he have to tell me that I can't fish it, especially if I enter the stream on a public easement?

The conservation agent in Madison county specifically told me Monday the water mark is not true. If you are floating they can't do a thing to you because the water is public property, if you are wading it is up to the agent on whether or not he wants to give you a ticket if the stream is on private property because the law isn't specific on whether the ground under the water is public domain, and if the stream is on private property and you are walking the bank you are officially trespassing. He said the only part of the law that isn't clear is the wading part, that is why he said he doesn't ticket anyone as long as they stay in the water but other agents have the right to ticket you for wading if there is private property on both sides of the river.

[ozark trout fisher]

The conservation agent in Madison county specifically told me Monday the water mark is not true. If you are floating they can't do a thing to you because the water is public property, if you are wading it is up to the agent on whether or not he wants to give you a ticket if the stream is on private property because the law isn't specific on whether the ground under the water is public domain, and if the stream is on private property and you are walking the bank you are officially trespassing. He said the only part of the law that isn't clear is the wading part, that is why he said he doesn't ticket anyone as long as they stay in the water but other agents have the right to ticket you for wading if there is private property on both sides of the river.

Maybe Al Agnew can chime in on this, because he seems to understand this better than anyone else... But despite whatever the conservation agent may have told you, I am pretty sure you are allowed to wade, camp, and fish below the high water line on navigable streams. I'm just not sure whether the Castor is technically navigable or not. I think that's the question.

[Al Agnew]

Yeah, we just went through this whole thing a short time ago, but here's the deal..."navigability" itself is confusing, since there are two kinds of navigability. There is Federal navigability--streams that have been designated at some point by the federal government to be legally navigable. On those rivers, the public owns the land up to the high water mark. But only a couple of stretches of the largest Ozark streams have this designation. On all other Ozark streams, the landowner owns the banks and bottom of the river. Which leads us to the second kind of "navigability" which is basically whether the stream is large enough to float a boat or canoe. This is a state definition, settled by the Missouri Supreme Court, but what has NOT ever been settled is which stream sections fall under this definition. At any rate, on the obviously floatable and often floated Ozark streams, although the landowner owns everything but the water, the supreme court said that the public has a right to fish and float the stream, INCLUDING getting out of the boat to fish, to pass the boat around obstructions, etc. So although the floater is touching private ground whenever they get out of the boat, it is legal for them to do so as long as they stay within the defined high water banks of the river. Further court cases have generally said that the public also has the right to camp and picnic on the gravel bars within the high water banks.

Wading small streams is a different story. In the case of Castor River, it could easily be argued that the public has a right to wade it since it has often been floated in canoes, and if it's legal to float and to get out and wade or picnic while floating, it stands to reason that it would be legal to wade it without floating. But to the best of my knowledge there is no settled law stating this, no court cases, etc. If it's a stream that is too small to float, then the public generally does not have a right to wade and fish it, although the Supreme Court cases that decided "navigability" actually left this open, and one interpretation could be that there IS a public right to fish pretty much any flowing water that has decent fishing!

But as you can see, there are huge gray areas in this whole body of law. And what it always boils down to is whether or not the county sheriff wants to arrest, and the county prosecutor wants to prosecute, a person accused of trespassing on smaller streams.

And if they ARE willing to arrest and prosecute, then it boils down to whether or not the accused has the will and the money to fight it in court with no assurance of victory.

So, like somebody said up above, if you want to know whether or not you will be arrested and prosecuted for wading a particular stream section from a particular access, you should ask the county prosecutor. Most of them have dealt with such cases before, or their predecessors have, and they should at least tell you whether or not THEY think you're in the wrong. And unless you want to fight it in state court, that will tell you whether or not you should risk fishing it from there.