Stream Access Law

[troutbum479]

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.

i agree completely. It would be different if you were walking across a field to fish a pond.But a creek thats flows with public land connecting on both sides is not trespassing in my opinion.

[Chief Grey Bear]

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...

I read just fine. I would suggest that you open your eyes and quit pretending you are the final authority. You did read this little tidbit right??

What about fishing Missouri’s rivers and streams?

Public use of Missouri’s float streams often causes conflict with private landowners. Public access to Missouri’s streams has been controlled since 1954 by Elder v. Delcour, a case decided by the Missouri Supreme Court. Navigable rivers and streams are open to all legal use by the public and fall under the control and jurisdiction of the federal government. Case law defines a navigable riveras “one that as a matter of fact is susceptible of being used in its ordinary condition, as a highway forcommerce over which trade and travel are or may be conducted in customary fashion.” (Sneed v.Weber, 307 S. W.2d68, and Elder v. Delcour, 269 S. W.2d17).In the Elder v. Delcour case, the Missouri Supreme Court concluded that a public fishing right exists upon Missouri’s small, floatable streams. The court ruled that since the ownership of the fish in the stream is vested in the public, the public has a right to fish and to take fish from the streams in a legal manner. The court ruling held that persons floating or wading in the upper Meramec River, following legal entry into that stream, were not trespassing. The Elder case has been accepted as precedent throughout the state and represents the controlling authority concerning public use of Missouri rivers and streams. Continued lawful and ethical use of Missouri’s waterways will help ensure that right for future Missourians.

If you like I can explain it to you if you need some help. But like Big E said: 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.

[Terry Beeson]

I like the fact that you conveniently left out:

"Obviously floatable means the stream segments that have property maintained for the purpose of allowing public access to the stream, such as Missouri Department of Conservation access sites. Obtaining legal access does not eliminate your responsibility to respect private property while fishing or floating. The majority of Missouri’s stream frontage is privately owned. The establishment of a Special Black Bass Management Area does not automatically give an angler the right to trespass on privately owned stream frontage."

No, I'm not the final authority... The Missouri Supreme Court is. You seem to think YOU are the final authority as well, Chief. Neither of us is. My issue is respect to the land owner. As I keep reading several of these posts, it seems that many have little or no respect for the land owner. It's not a matter of whether or not you trash the stream or cause damage. It's a question of respect for others, which seems to be disappearing these days.

"If I can get my canoe down it, it's floatable" is NOT what MDC or MSC says... Sorry.

"If I've got two public accesses five miles separated by private property..." Then, yes Eric... I interpret it that you have floatable water in that case, IF the public access is maintained for that purpose (which leaves out parking by a bridge.) Never said you didn't. In fact, if you read the Crane Creek thread, I indicated I interpret this to mean Crane Creek is floatable with this definition and the dairy farm and other land owners on Crane are most likely wrong to keep you from wading down the creek. But if there is no public fishing access MAINTAINED FOR THAT PURPOSE on the stream, you are trespassing as I interpret it.

Hey Ducky... Let's buy a hover craft and then we can duck and goose hunt ANYWHERE!!! Hey... I guess we can hunt for ANYTHING (legal) using that logic!!! I see our freezers filling up already!!!

[troutfiend1985]

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.

Well, you do own some of the air above your land. I'm not going to go back to feudal days and the heaven to hell theory, but it has been interpreted by the Supreme Ct. that an individual does own or control the air above his property to a certain extent.

Elder has been explained before, and it does not stand for the proposition that a fishable stream is public property and accessible to public fisherman.

I would want to know what would happen to Rockbridge and those areas. Anyone have a good idea?

[troutfiend1985]

I like the fact that you conveniently left out:

"Obviously floatable means the stream segments that have property maintained for the purpose of allowing public access to the stream, such as Missouri Department of Conservation access sites. Obtaining legal access does not eliminate your responsibility to respect private property while fishing or floating. The majority of Missouri’s stream frontage is privately owned. The establishment of a Special Black Bass Management Area does not automatically give an angler the right to trespass on privately owned stream frontage."

"If I can get my canoe down it, it's floatable" is NOT what MDC or MSC says... Sorry.

Well, that is what I struggle with the most from Elder, who besides our Supreme Court and Federal Court, is the ultimate authority on our issues. The MO Supreme Ct. seems to say that a stream is navigable if it has been used for the transportation of commerce. What is commerce? As defined by the supreme court commerce is almost anything, except for violence against women and gun usage. However, a man floating down the stream in his canoe to go trapping would seem to be commerce, i.e. selling furs. On the other hand, the court might say the commerce test is outdated and has been overruled by subsequent cases, we just won't know until someone takes this issue to court.

However, you are right, a stream the size of Crane would have a hard time being considered as navigable under the transportation of commerce test.

Property rights is a sticky subject. Terry, I don't see any of these access rights becoming law for a while, if ever.

[troutfiend1985]

"If I've got two public accesses five miles separated by private property..." Then, yes Eric... I interpret it that you have floatable water in that case, IF the public access is maintained for that purpose (which leaves out parking by a bridge.) Never said you didn't. In fact, if you read the Crane Creek thread, I indicated I interpret this to mean Crane Creek is floatable with this definition and the dairy farm and other land owners on Crane are most likely wrong to keep you from wading down the creek. But if there is no public fishing access MAINTAINED FOR THAT PURPOSE on the stream, you are trespassing as I interpret it.

Hey, who would I call in MDC if I have a question on Crane and its easements? I think that I might try a little peaceful civil protest this winter Just see what type of hell I can raise in our courts. Wouldn't have to pay for an attorney either Although you know what they say: an attorney who represents himself has a fool for a client.

[Chief Grey Bear]

I like the fact that you conveniently left out:

"Obviously floatable means the stream segments that have property maintained for the purpose of allowing public access to the stream, such as Missouri Department of Conservation access sites. Obtaining legal access does not eliminate your responsibility to respect private property while fishing or floating. The majority of Missouri’s stream frontage is privately owned. The establishment of a Special Black Bass Management Area does not automatically give an angler the right to trespass on privately owned stream frontage."

No, I'm not the final authority... The Missouri Supreme Court is. You seem to think YOU are the final authority as well, Chief. Neither of us is. My issue is respect to the land owner. As I keep reading several of these posts, it seems that many have little or no respect for the land owner. It's not a matter of whether or not you trash the stream or cause damage. It's a question of respect for others, which seems to be disappearing these days.

I didn't leave out anything. My quote, as I stated before was from the MoDNR. Not your link from the MDC. So it is blantanly obvious you are not paying attention. You are trying to combine two interpitations of the law into one that fits your argument. And it ain't working on me.

But lets just take a look at your quote above. The first sentence is to guide people to MDC access'. No where will you find that it says you can not access a stream from a county road. You know as well as I do that there are also alot of fords still in use in Missouri. Can one not access there??

The very first sentence that I have highlighted in red for you states that one must respect the landowners along the route that you are going to fish or float. Note that fishing and floating are seperate. Could that be the open door for wade fishing????

Now the next sentence that I have colored for you is very key. Especially for the next sentence. But it states that STREAM FRONTAGE is private. Not the stream. Much like frontage along the road. Not the road.

And the final sentence of this quote says it all. It states that because there is a SBBMA on that stream, you do not have the right to trespass on STREAM FRONTANGE. Now, if the stream was private, why whould there be a SBBMA on that stream????

My issue is respect to the land owner. As I keep reading several of these posts, it seems that many have little or no respect for the land owner.

What about fishermen? Some are better stewards of the land that the owners??? I notice you didn't address Outside Bend and post on how landowners trash the land.

BTW you used to or maybe still do, a lot or some float fishing??? Did you contact every landowner along the way to see if you could float??

[Terry Beeson]

First of all, let me answer the part about stewardship. Yes, in fact, some anglers are better stewards than some land owners. I never said they were not. I saw no need to address OB's post since that part is true. But with that logic, you should be able to plant a garden on my land just because you are a better gardener.

Secondly, yes I do some float fishing and wade fishing. But I access the streams at MDC or other publicly designated fishing accesses. I have never, nor will intentionally ever access a stream that I do not KNOW is a public/float stream. But I've never said you should not be allowed to access a float stream via a highway right of way.

Thirdly, I posted a link to what I was quoting while you simply put words on a post. Your failure to post a link to the MoDNR page you quoted does not give one the ability to reference the same page. I have looked on the DNR page without success, so I would ask that you reference with a link. (Not to say it is not there... just that I could not find it.)

Lastly, I am confused as to why you think there is a need for a law that was the subject of this thread since the MSC and USSC apparently have negated the need for this. As I now interpret it using your logic, since all water in Missouri eventually winds up in the Mississippi River, I have automatic access to any and all water to fish. Don't keep me off your pond as long as I take a route where the spillway runs to the nearest ditch or creek or where the water drains into it. That part of the land is no longer private since somewhere downstream I'm sure there is a section that is at least 3 inches deep.

Troutfiend... You have brought forth some very valid points. I failed to say that actually, the US Supreme Court has final authority... Well, not FINAL authority... God has that. But on this issue it would be the USSC.

Another point well stated, Troutfiend. How do Dogwood Canyon, Rockbridge, and similar places exist if they are not private?

[duckydoty]

Well, you do own some of the air above your land. I'm not going to go back to feudal days and the heaven to hell theory, but it has been interpreted by the Supreme Ct. that an individual does own or control the air above his property to a certain extent.

Elder has been explained before, and it does not stand for the proposition that a fishable stream is public property and accessible to public fisherman.

I would want to know what would happen to Rockbridge and those areas. Anyone have a good idea?

Just as the Missouri Supreme Court has determined that the land owner has control over a non navigatible watershed on his property. Whats the difference in the arguements here?

[Chief Grey Bear]

First of all, let me answer the part about stewardship. Yes, in fact, some anglers are better stewards than some land owners. I never said they were not. I saw no need to address OB's post since that part is true. But with that logic, you should be able to plant a garden on my land just because you are a better gardener.

Why do you keep brining up land only scenarios? We are talking about streams. I think that is where a lot of your confusion stems from. There is no comparison.

Secondly, yes I do some float fishing and wade fishing. But I access the streams at MDC or other publicly designated fishing accesses. I have never, nor will intentionally ever access a stream that I do not KNOW is a public/float stream. But I've never said you should not be allowed to access a float stream via a highway right of way.

Sweet. We agree. That is all I have been saying. But what is a public/float stream. I don't know of any city, county, or state owned streams.

Thirdly, I posted a link to what I was quoting while you simply put words on a post. Your failure to post a link to the MoDNR page you quoted does not give one the ability to reference the same page. I have looked on the DNR page without success, so I would ask that you reference with a link. (Not to say it is not there... just that I could not find it.)

http://webcache.googleusercontent.com/search?q=cache:besiZ5XQKfIJ:www.dnr.mo.gov/env/wpp/vmqmp/vwqm-intro05.pdf+missouri+waterway+tresspass+laws&cd=2&hl=en&ct=clnk&gl=us page 8.

Lastly, I am confused as to why you think there is a need for a law that was the subject of this thread since the MSC and USSC apparently have negated the need for this. As I now interpret it using your logic, since all water in Missouri eventually winds up in the Mississippi River, I have automatic access to any and all water to fish. Don't keep me off your pond as long as I take a route where the spillway runs to the nearest ditch or creek or where the water drains into it. That part of the land is no longer private since somewhere downstream I'm sure there is a section that is at least 3 inches deep.

Well,let me clear it up for you. I don't think there needs to be a law. I never signed up saying that. The law has, in my opinion and that of the MDC and MoDNR via the Missouri Supreme Court, already said that it is open. Have you read the court ruling? But hey, by all means since you all the land in, on, and around the stream, build a dam and make yourself a lake. And you will soon find out just what you own.

Another point well stated, Troutfiend. How do Dogwood Canyon, Rockbridge, and similar places exist if they are not private?

Has anyone gained legal access above or below these places and tried it??

I did notice you quietly tip toed by this question: And the final sentence of this quote says it all. It states that because there is a SBBMA on that stream, you do not have the right to trespass on STREAM FRONTANGE. Now, if the stream was private, why whould there be a SBBMA on that stream????