Little Piney Access - Run-In With Landowner

[moguy1973]

That's exactly what I thought, but that's not what the fisheries biologist told me.

I'm going to do some research on this and post my results--I'll try to check with the law school here at Mizzou and talk to someone at the conservation department here in town.

That is the law though...The land owner owns the banks, the sand bars and the bottom of the stream, but they do not own the water that flows in the stream so you can float it, but you can't walk it. The only exception is if there's an obstruction and you have to portage your vessle...

[itsabigfish]

That is the law though...The land owner owns the banks, the sand bars and the bottom of the stream, but they do not own the water that flows in the stream so you can float it, but you can't walk it. The only exception is if there's an obstruction and you have to portage your vessle...

I called the legal division in Jeff City and told them of the issue. An agent will be able to answer my question next monday. I'll post what happens as soon as I know.

I've been following this guideline:

"The landowner controls the right to access the creek from the bank, but any person has a right to move upstream or downstream in the water, according to the Missouri Supreme Court in the 1954 case Elder v. Delcour, as long as the stream can be considered “navigable,” in a fairly loose sense of the word. In some cases, the federal government has obtained an easement to allow recreational users the right to be on the streambanks, such as in the Ozark National Scenic Riverways (parts of the Jacks Fork and Current) and the National Wild and Scenic Rivers system (part of the Eleven Point)."

[mic]

Its time for MO to pass a law so that it is settled one way or another. I'm going to write my representative... oh yea, I live in IL.

Crap

[ozark trout fisher]

I trust the MDC in most all matters, but I certainly would not take what they tell you about stream access laws as gospel. They clearly state in their fishing regulation handbook that you shouldn't fish any stretch of stream that flows through private land without permission, even though everyone does that because it is legal in many, many cases. If Little Piney is navigable (and who is really going to argue that it isn't? People float the thing all the time and it is listed in the Missouri Department of Conservation's float book) then you were legal. Doesn't mean that you won't get arrested. Doesn't even for sure mean that you wouldn't get convicted of trespassing. Landowners hold a whole lot of power in rural Missouri, and law enforcement and the prosecuting attorney are often unwilling to upset them.

All it means that you are legally, and ethically in the right. And I'm afraid in some parts of the state that just doesn't matter much. Local poachers, and deer doggers can get away with whatever they feel like doing, because the prosecuting attorney or the sheriff is usually their cousin or their buddy. But for goodness sakes, if you are a catch and release fisherman from out of town, and have the audacity to park at a public easement and wade fish through private land on a navigable stream, watch out!

[Al Agnew]

Geez, as much as we've hashed this out in the past, this is one instance where it's still a gray area. According to Elder v. Delcour, the governing MO Supreme Court decision, you have the right to float it, to get out and portage around obstructions, AND to camp and picnic on the gravel bars below the high water mark. I quoted that passage from the decision exactly in a previous thread. But...if you're wading it and not floating it, does that count the same as using the gravel bars? A reasonable person would say so...if you can camp on a gravel bar, you should be able to wade on the bottom. But as has been said above, a sheriff and county prosecutor sympathetic to the landowner is very likely to result in your arrest and conviction, and the only way you could then win is to appeal it and take it to the MO Supreme Court, which few if any of us have the time, money, inclination, or attorney friends to do.

At some point, though, somebody is going to have to do it.

[itsabigfish]

I got a call back from the conservation dept and long story short, the above post is correct: it is a gray area.

I'm currently waiting for a call from the Phelps county sheriff's department to see how they handle trespassing on the Little Piney.

I called the prosecuting attorney's office and was told I could set up an appointment on Saturdays to discuss this. Unfortunately, I'm not in Phelps county and when I am on a Saturday, I'm fishing or hunting.

Additional edit: I didn't get a specific answer from the deputy--he didn't seem very familiar with the area and only stated he thought only one side of the creek is private property in that area.

[mic]

I'm a little confussed about one thing...how does a national forest work. If the creek in the Mark Twain National forest how is access to it restricted? If it is, how do you tell what is public and what isn't?

[ozark trout fisher]

I'm a little confussed about one thing...how does a national forest work. If the creek in the Mark Twain National forest how is access to it restricted? If it is, how do you tell what is public and what isn't?

Mark Twain National Forest is a patchwork of public land and private easements. That tract down there around Little Piney has a lot more land in private hands than public. Basically on Little Piney you've got the National Forest land at Lane Spring and some MDC land down around Milldam Hollow. Other than that it's mostly all private land along the stream, although there are several public easements around the bridges, the Vida Slab low-water being one of them. Of course some of these public bridge easements have purple paint.

[drew03cmc]

Public or private. Elder v Delcour reigns supreme. You were in the right.

[skiburd]

I've fished Little Piney a dozen times and have never had any trouble with access. A few times from Lane Spring but mostly from Vida Slab going upstream to the barbed wire fence and beyond. This morning a buddy and I got ready to go and were just stepping into the water and a lady on a 4-wheeler came up to us. At first she was trying to yell at us from across the creek but we couldn't hear her so she came over to us.

She told us that this was her property and she didn't allow any fishing and asked us to leave. We talked with her for a few minutes and explained to her that we've fished here many times before and didn't realize that it wasn't public access. We didn't try to argue with her because we knew that wouldn't help - we were just trying to understand where she was coming from.

We know the laws and our rights and all but some landowners don't seem to understand them the same way.

First, where do y'all access the water when Lane is closed?

Second, anyone have any run-ins with this lady?

Missouri is not a riparian rights state. From the way I understand the law as long as you are in a boat you are legal. Put your foot on the bottom of the stream and you are trespassing. Does not sound right to me but