Stream Access Law

[ozark trout fisher]

We hashed out Elder vs. Delcour a while back, and part of that decision was interpreted by some to say that if a stream was good fishing, the public had a right to fish it. Now that isn't the way the decision is being utilized in determining whether you can legally fish small, non-floatable streams, but there would be a pretty decent chance that at some point a court could decide it that way. We aren't that far from it.

The landowner owns everything but the water and the fish and other critters in it in Missouri, and that's true even on the floatable streams. But the landowner doesn't own the water and the fish, which could be construed to mean that the public has a right to access the stream in order to get to those fish. Fortunately for landowners, that isn't the case right now.

But that's a huge contrast from ponds, where the landowner owns everything including the water and the fish in it.

In some ways I agree with Eric, in that if you own a piece of creek a couple miles from the nearest public access, the chances of whoever it is coming up the creek to your land while fishing being a bad apple is pretty slim. On the other hand, if you own the creek right near the bridge, you've probably already run afoul of the slobs and pinheads and criminals that seem to be so much more prevalent these days. On the other other hand, if you just recently bought that piece of land next to the bridge, you should have understood from the beginning you were going to have that problem.

Just for fun, let's come up with possible solutions to this whole problem. Here's a scenario...the state designates a section of creek as "fishable". All the landowners on that creek are contacted and informed that their creek is "fishable"...and they have the right to be compensated for the use of it by the public. All of us who want to fish said creek must buy a tag that is strictly for the use of that creek, access the creek only at designated public access points, and fill out our name, address, and tag number and drop it in a box at the access every time we fish it. The tag money is split up among the landowners. If you're caught on the creek without a tag, you're trespassing, and the landowner has the right to demand to see the tag and record its number at any time, as do conservation agents and law enforcement people. In addition, each watershed should have "stream keepers", which is a little different from the stream teams we have now. The stream keepers should be a group of people consisting of tag holders and landowners who not only get together regularly to do clean-ups, but also voluntarily patrol the accesses watching for illegal activities and reporting them to law enforcement.

Sounds pretty complicated and maybe utopian, doesn't it? But if things keep going the way they are, we're either going to have to come up with solutions something like that, or we're going to just say all the streams are private, because the number of people using the streams is getting larger and the pinhead ratio is climbing, too.

It's certainly an interesting idea.

I like the stream keeper idea. The idea that the landowner should maybe get some compensation from tagholders- I'm not sure what I think about that, but if the tags were reasonably priced enough that a run of the mill fisherman could afford them without hardship, then maybe I could get behind that.

[Terry Beeson]

I already buy a tag. And nowhere on that tag does it say "For fishing on state owned waters only".

It doesn't say you can't use night crawlers on Taney just below the dam either Chief. Therein lies the problem. Many folks buy a tag (hunting or fishing) and think that gives you the right to do anything you want to capture your prey.

Al, once again you have been the voice of reason. The idea you have is good brain-storming. As I stated, I'm not against people fishing on these streams, I'm against the government opening up the streams to public access without regard to problems these landowners may have.

The stream that runs through my property enters on the northeast corner of the property and the access would have to be at that point just south of the bridge. This is a cattle farm, so there is a fence that crosses the stream at this point. In my younger days, I have spent countless hours repairing that fence due to heavy rains washing the fence away. But in addition, I spent many hours repairing it after being cut or tampered with by people wanting to hunt or fish along the creek.

Another liability... A cow gets out due to the fence being damaged... Said cow is rammed by a driver on the highway causing damage to the vehicle and the person. Who's liable? The court has said the landowner for failure to maintain proper fencing... It's happened.

So, how do you deal with that?

Guys... Please don't think I have a personal vendetta against anglers in general or even any single person. It is just that this type of law can open up a large can of worms that nobody seems to care about. I keep reading "I don't think" in many posts. I don't THINK there would be a big problem, but history proves that there WILL be a big problem somewhere with this. The great stewards of the streams are not the problem, but if they are such stewards and sportsmen, then they should have no problem with the status quo.

Another point... Let's say that someone accesses the creek legally and then decides they want to walk over to your private pond and do some fishing. How many of you think the county sheriff's department will bother sending a deputy out to deal with this?

[Outside Bend]

We hashed out Elder vs. Delcour a while back, and part of that decision was interpreted by some to say that if a stream was good fishing, the public had a right to fish it. Now that isn't the way the decision is being utilized in determining whether you can legally fish small, non-floatable streams, but there would be a pretty decent chance that at some point a court could decide it that way. We aren't that far from it.

The landowner owns everything but the water and the fish and other critters in it in Missouri, and that's true even on the floatable streams. But the landowner doesn't own the water and the fish, which could be construed to mean that the public has a right to access the stream in order to get to those fish. Fortunately for landowners, that isn't the case right now.

But that's a huge contrast from ponds, where the landowner owns everything including the water and the fish in it.

In some ways I agree with Eric, in that if you own a piece of creek a couple miles from the nearest public access, the chances of whoever it is coming up the creek to your land while fishing being a bad apple is pretty slim. On the other hand, if you own the creek right near the bridge, you've probably already run afoul of the slobs and pinheads and criminals that seem to be so much more prevalent these days. On the other other hand, if you just recently bought that piece of land next to the bridge, you should have understood from the beginning you were going to have that problem.

Just for fun, let's come up with possible solutions to this whole problem. Here's a scenario...the state designates a section of creek as "fishable". All the landowners on that creek are contacted and informed that their creek is "fishable"...and they have the right to be compensated for the use of it by the public. All of us who want to fish said creek must buy a tag that is strictly for the use of that creek, access the creek only at designated public access points, and fill out our name, address, and tag number and drop it in a box at the access every time we fish it. The tag money is split up among the landowners. If you're caught on the creek without a tag, you're trespassing, and the landowner has the right to demand to see the tag and record its number at any time, as do conservation agents and law enforcement people. In addition, each watershed should have "stream keepers", which is a little different from the stream teams we have now. The stream keepers should be a group of people consisting of tag holders and landowners who not only get together regularly to do clean-ups, but also voluntarily patrol the accesses watching for illegal activities and reporting them to law enforcement.

Sounds pretty complicated and maybe utopian, doesn't it? But if things keep going the way they are, we're either going to have to come up with solutions something like that, or we're going to just say all the streams are private, because the number of people using the streams is getting larger and the pinhead ratio is climbing, too.

Wyoming has a setup similar to what you describe Al- landowners are paid for allowing public access to their property, but folks who want to use that property for hunting or fishing are still required to receive written permission from the landowner. To me that would solve both of the primary issues folks have been airing- landowners get something for putting up with inevitable bad behavior, and they also get to know who will be on their property.

Landowners in the program also have some say in how their land is used- if you don't want to allow mule deer or pheasant hunting on your property, for example, you can restrict that. I don't see why you couldn't do a similar thing in MO- if a landowner wants C&R or mandatory kill on spotted bass in the streams where they allow the public.

[Terry Beeson]

I'll buy that one OB...

[Chief Grey Bear]

It doesn't say you can't use night crawlers on Taney just below the dam either Chief. Therein lies the problem. Many folks buy a tag (hunting or fishing) and think that gives you the right to do anything you want to capture your prey.

Negatory Ghost Rider. There is a whole book called the Wildlife Code that must be adhered to. And I don't recall seeing a list of public and/or private streams. There is a list of public lands that can be used but, no such list of public waterways. Which can only mean one thing.....

[Outside Bend]

Negatory Ghost Rider. There is a whole book called the Wildlife Code that must be adhered to. And I don't recall seeing a list of public and/or private streams. There is a list of public lands that can be used but, no such list of public waterways. Which can only mean one thing.....

It was my understanding The Wildife Codeis a permissive set of regulations, and if it doesn't expressly allow a specific action you shouldn't expect it to be legal. I could be completely wrong on that, though.

[Chief Grey Bear]

It was my understanding The Wildife Codeis a permissive set of regulations, and if it doesn't expressly allow a specific action you shouldn't expect it to be legal. I could be completely wrong on that, though.

I have always heard that myself. But if I recall correctly, and I will have to check, but, the MDC advocates the killing of Starlings and English Sparrows in any numbers throughout the year. And I don't think that is in the Code book.

But anyway we are speaking of stream trespassing. And the MDC will never advocate that or will you find it in the Code book other than to say don't do it and that no license of any type gives you permissions to do so. But if you legally enter a stream, you can fish it to the next legal access. As was just stated in a link Terry put on another thread.

[Terry Beeson]

Clean your glasses or go back to English class, Chief... Or at least clarify that the stream must be a FLOATABLE stream as defined by the Missouri court system. Again, you take license where there is none...

[duckydoty]

We hashed out Elder vs. Delcour a while back, and part of that decision was interpreted by some to say that if a stream was good fishing, the public had a right to fish it. Now that isn't the way the decision is being utilized in determining whether you can legally fish small, non-floatable streams, but there would be a pretty decent chance that at some point a court could decide it that way. We aren't that far from it.

The landowner owns everything but the water and the fish and other critters in it in Missouri, and that's true even on the floatable streams. But the landowner doesn't own the water and the fish, which could be construed to mean that the public has a right to access the stream in order to get to those fish.

It would be interesting to apply this to the fact that landowners do not own the air that flows over the land and duck and goose hunters should have the right to access the ducks and geese that are flying around in the air above the landowners property.

[eric1978]

Clean your glasses or go back to English class, Chief... Or at least clarify that the stream must be a FLOATABLE stream as defined by the Missouri court system. Again, you take license where there is none...

My canoe floats in a few inches of water...so I would say most streams are floatable.

A navigable, and therefore public, stream in Missouri is defined by law as "one that as a matter of fact is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in customary fashion."

Now that's some fancy legal jibberish, but a simpleton like me translates it as "if you can get your canoe down it, it's public." If I've got two public accesses five miles separated by private property, and there's a single pool too deep to wade through, I'll put my canoe in and drag the riffles. I personally feel the law is ambiguous enough to take the chance. Go ahead and shoot me...I'm not hurting you or your property.