End Of Public Ownership Below City Park

[troutfiend1985]

Parachite, I understand your concern for your friends land, but you have to understand that not everyone owns a GPS, nor has anyone(including the MDC) set out identifiable markers where the public access ends. I personally do not have a GPS system.

This whole bringing a firearm out to enforce land rights is a joke, and a very good way to end up starting a real confrontation. I garauntee you that if anyone points a gun at me I will leave, and then call the police for assault. IT IS JUST A STUPID THING TO DO AND IT IS UNNECESSARY. No one has the right to defend property by the use of deadly force, and I just cannot see what a person is thinking in that situation. If they're worried about starting a confrontation, then be nice about it. A simple "Hey guys, I know you want to fish but this is private property and I would appreciate it if you would be kind enough to leave" would be enough to deter a person from fishing on their land and would not be enough to get a fight going. If that doesn't work then you call the sheriff. Anyways, what happens if you bring a gun down there, and the other guy has a gun as well? Stupid breeds stupid.

I'm standing by my point I've made earlier, I will continue to wade until I know I am on private property. If a land owner is really concerned with tresspassing, he should post up a sign or spend ten bucks at wal-mart buying purple paint. Not saying that he has a duty, but it sure as hell is common sense.

[troutbum479]

I'm outing out of this argument. I know my rights as a fisherman, but i talked to parachiteadams39 via pm and cleared the mud.

[parachiteadams39]

This whole bringing a firearm out to enforce land rights is a joke, and a very good way to end up starting a real confrontation. I garauntee you that if anyone points a gun at me I will leave, and then call the police for assault. IT IS JUST A STUPID THING TO DO AND IT IS UNNECESSARY. No one has the right to defend property by the use of deadly force, and I just cannot see what a person is thinking in that situation. If they're worried about starting a confrontation, then be nice about it. A simple "Hey guys, I know you want to fish but this is private property and I would appreciate it if you would be kind enough to leave" would be enough to deter a person from fishing on their land and would not be enough to get a fight going. If that doesn't work then you call the sheriff. Anyways, what happens if you bring a gun down there, and the other guy has a gun as well? Stupid breeds stupid.

Totally agree with all of this, as well as troutbum's assesment that all of this may have run its course.

[ozark trout fisher]

Totally agree with all of this, as well as troutbum's assesment that all of this may have run its course.

If I went a little overboard myself I apologize. This issue tends to rile me up but no harm was intended.

[drew03cmc]

Guys, my understanding of state access laws is that if you stay within the creek and enter from a public access, you are legal, whether or not the landowners feel that way.

[ozark trout fisher]

Guys, my understanding of state access laws is that if you stay within the creek and enter from a public access, you are legal, whether or not the landowners feel that way.

That is my understanding too, if the creek is navigable.

The question is what does navigable mean. My opinion is that a creek like Crane would be considered navigable, but I don't think anyone, not even a lawyer, could know the answer to that for sure sure. Stream access laws are extremely complicated and leave a lot of gray area.

Which is why I would personally favor a "Montana Style" state stream access law for Missouri which would open up all permanent flowing water to fisherman-so long as the entered the stream at a public access and stayed below the high water mark. But I am not looking to derail this topic so maybe I should stop there.

[mic]

That is my understanding too, if the creek is navigable.

The question is what does navigable mean. My opinion is that a creek like Crane would be considered navigable, but I don't think anyone, not even a lawyer, could know the answer to that for sure sure. Stream access laws are extremely complicated and leave a lot of gray area.

Which is why I would personally favor a "Montana Style" state stream access law for Missouri which would open up all permanent flowing water to fisherman-so long as the entered the stream at a public access and stayed below the high water mark. But I am not looking to derail this topic so maybe I should stop there.

I don't know what the current reading is, but in the original case that started the legal precedent, navigable was for commercial use...specifically floating cut logs to a mill. I'm sure that has been modified over the years with new precedents.

[ozark trout fisher]

I don't know what the current reading is, but in the original case that started the legal precedent, navigable was for commercial use...specifically floating cut logs to a mill. I'm sure that has been modified over the years with new precedents.

I've heard that too. But I've also heard about a million other ways to define a navigable stream.And the people who seem to know the most about the issue tend to agree that there is plenty of gray area and that the laws are very complicated. I'm also pretty sure whether you can get charged with trespassing may depend more on the beliefs of the county prosecutor more than it does on the legality of the situation.

So who knows... I'm not a lawyer and don't want to be. In the end for me it just comes down to common sense and a personal judgment call as to whether a stream is navigable, until I understand what the law is hard and fast. And I really don't think that will ever happen.

[troutbum479]

maybe someone can make some sense out of this? http://www.nationalrivers.org/states/mo-law.htm

[troutfiend1985]

maybe someone can make some sense out of this? http://www.nationalrivers.org/states/mo-law.htm

I wouldn't rely on that information. Ok, here's my jargon I have to tell you. I'm not a lawyer, this is not legal advice, if you rely on this advice you rely on it to your own detriment, and you must promise to indemnify me at any legal proceedings. There, now let me post what my sources say.

Elder v Delcour (1954) 364 Mo 835, 269 SW2d 17, 47 ALR2d 370 (boating, fishing, and wading rights in waters regarded as "public" though "nonnavigable" for purposes of establishing title)

Springfield v Mecum (1959, Mo App) 320 SW2d 742 (recognizing to the same effect as Elder v Delcour (1954) 364 Mo 835, 269 SW2d 17, 47 ALR2d 370)

Public rights to fish in nonnavigable streams

The public may be entitled to fish in nonnavigable rivers despite the riparian owners' objections where the courts have considered themselves authorized to regard factors other than navigability as overriding.

This was true in Elder v Delcour (1954) 364 Mo 835, 269 SW2d 17, 47 ALR2d 370, where the defendant owned both banks of a stream which flowed through his farm. It was navigable by small craft, such as canoes and rowboats, had always been used extensively for fishing, and in years past had been used for floating and transporting logs in lumbering operations, but at the date of trial there were dams and other obstructions to navigation which required portaging for continuous travel along the stream. While the court held the river nonnavigable, and the defendant was the owner of the river bed, nevertheless the river was held to be a public way, over which members of the public had the right to proceed despite the defendant's ownership. Moreover, since the fish in the river belonged to the state as long as they remained uncaptured, the public also had the right to fish in the river where it flowed through the defendant's farm.

Similarly, members of the public were held intitled to fish in the waters of a nonnavigable stream, the bed of which, though not the fish swimming in the water, was concededly owned by the riparian owners, in Medlock v Galbreath (1945) 208 Ark 681, 187 SW2d 545, because the latter had not enclosed or fenced off this portion of their premises. It was held that it had always been the law of the state that the public was at liberty to hunt and fish in any wild uninclosed land, even though it might be privately owned, and hence so long as these waters remained uninclosed the defendants could not interfere with or object to the plaintiffs fishing therein.

Moreover, the general rule that the right of fishing depends on navigability may yield where a statute authorizes the public to fish in nonnavigable streams, and is a legitimate exercise of the state's right to regulate fisheries. Where the plaintiff as a member of the public was authorized by statute to fish in a certain nonnavigable stream, the defendant riparian owner could not charge the plaintiff with trespassing while fishing there, nor could the defendant erect a dam which interfered with the public rights. It was held that the statute was constitutional as being within the legislative prerogative of regulating fisheries in the state, as such legislation had been in existence (though not the particular statute here involved) governing the waters of the state prior to the state's creation. Lunt v Hunter (1839) 16 Me 9.

47 A.L.R.2d 381, 3

All credit given to A.L.R.2d Hope this helps. Maybe Chief will read this and think twice about not wanting me as a lawyer here in a few years. Again, this is not legal advice and not to be relied on, please contact a MO lawyer for legal advice.