Shoal Creek Is Private Property?

[Wayne SW/MO]

I agree this is probably not a battle you want to go to court at this time. But at present, he IS wrong, and he will be wrong until a Supreme Court decision reverses Elder v Delcour.

Gotta wonder though about the chances of a court decision reversing it. The point above that this guy said something to the effect that the campground thinks they can rent canoes to float through his private property is telling. If Elder v Delcour was ever reversed, you'd immediately have a LOT of landowners on every stream (except the federal owned ones, Current, Jacks Fork, and Eleven Point, and not all of THEM are publicly owned) doing exactly what they are doing in Kansas. And that would spell the end of the canoe rental business in MO. Think that might hurt a lot of people, not just the canoe liveries, in their pocketbooks? It would be a huge hit to the tourism industry in MO. Maybe a few Supreme Court justices would be willing to risk that, but I think a lot of politicians just might be worried about it.

My point here Al is in reference to this posting. Information allegedly from the MDC.

For public non-navigable streams, the center thread is also where the adjacent property boundaries lie. Fishing, wading and boating are allowed but the banks are private property as is the stream bottom.

I wouldn't want the question to go before a county judge because it would be a roll of the dice. At some point you have to define Elder because not all streams are comparable to the Meremec if people want a hard fast ruling.

The guy may be wrong, or he may be right, but as long as the sheriff and the prosecutor believe he's wrong, he's wrong and I wouldn't put them in a position to rethink their decision. Let sleeping dogs lie.

[drew03cmc]

That would be a nice thing if one of the deputies would be willing to do that.

Look, that case has been there for 57 years, and I'm sure that when it was decided it was controversial because this is a minority rule i.e. most states are like Kansas on these issues. However, it has been a fairly litigated matter, as there are more cases out there than Elder. But, the cases subsequent to Elder have followed Elder, distinguihsed Elder(mainly holding that not all small creeks are a public way) but have not overturned Elder. Elder still stands and on this issue, with the facts and circumstances and the nature of the stream that Chief's flotilla was on, this is a good case. It parallels Elder in a lot of ways, and they are in the right with the law. Facts + Law usually equals good results. The courts might limit Elder, but I don't see the proposition that Elder stands for going anywhere any time soon.

In my research, Kansas is one of the FEW states with zero public access to public non-navigables. Kansas is a state in which the landowner regulates access to a creek. They even stipulate that the water is public, but with no access that point is moot.

http://www.kansas.net/~tjhittle/Obstacles%20to%20River%20Recreation%20in%20Kansas.pdf

Meeks v Hays has all of this information. This is why there are NO outfitters in Kansas, and why access to native spotted bass populations in the Flint Hills are non-existent. On a side note, Meeks v Hays was about Shoal Creek and whether an electric fence that Mr. Hays placed across the creek was legal. The case happened in the 90s so it is plenty recent.

[troutfiend1985]

My point here Al is in reference to this posting. Information allegedly from the MDC.

I wouldn't want the question to go before a county judge because it would be a roll of the dice. At some point you have to define Elder because not all streams are comparable to the Meremec if people want a hard fast ruling.

The guy may be wrong, or he may be right, but as long as the sheriff and the prosecutor believe he's wrong, he's wrong and I wouldn't put them in a position to rethink their decision. Let sleeping dogs lie.

I don't really care what the MDC says on this issue, they don't make state law that defines trespassing. Look, Wayne go read Elder. Elder specifically referred to wading, and held so in the opposite. I haven't found anything that overrules the right to wade on public non-navigable, and MDC might just be putting that up there to keep people from getting into conflicts. That information is wrong, I'm sorry but

As far as this goes, I don't think the courts are going to look at these factors and say, "Yeah, this case that has withstood 57 years of litigation should now be retired because of the incident at Shoal Creek." It's sad when we are willing to hold our rights as subservient to a land owner in the wrong because we are worried about some farm bureau.

[Wayne SW/MO]

As far as this goes, I don't think the courts are going to look at these factors and say, "Yeah, this case that has withstood 57 years of litigation should now be retired because of the incident at Shoal Creek." It's sad when we are willing to hold our rights as subservient to a land owner in the wrong because we are worried about some farm bureau.

I'm in no way talking about abandoning Elder, if it works I don't care what it says. My point was and still is, don't make a mountain out of a molehill. If you have a ruling in your favor you don't want try again.

The county sheriff says it can be floated and he is the authority that can stop you, so let it lie and keep him happy. All this talk about retribution is fine for the long distance members, but Chief, Ollie, and some others live there. There is no sense in challenging a win, save it for the next battle.

[FishinCricket]

I'm in no way talking about abandoning Elder, if it works I don't care what it says. My point was and still is, don't make a mountain out of a molehill. If you have a ruling in your favor you don't want try again.

The county sheriff says it can be floated and he is the authority that can stop you, so let it lie and keep him happy. All this talk about retribution is fine for the long distance members, but Chief, Ollie, and some others live there. There is no sense in challenging a win, save it for the next battle.

Ah, I see what you're driving at now... (my emphasis above in bold)

I agree with that, Wayne.. (didn't really think anyone was being serious about retribution) Now how to best get through to the landowner so that those locals will have not only consent but the blessings of the landowner...?

[flytyer57]

...not only consent but the blessings of the landowner...?

Not sure about consent but for blessings? Maybe remind them of the old saying; "What Would Jesus Do?"

[troutfiend1985]

Ah, I see what you're driving at now... (my emphasis above in bold)

I agree with that, Wayne.. (didn't really think anyone was being serious about retribution) Now how to best get through to the landowner so that those locals will have not only consent but the blessings of the landowner...?

You got me, outside of asking the sheriff to go and talk to him personally. This guy, from what I have heard, is probably not going to give up. And from what you guys have said, I would rather not argue with him personally (the thought of a gun in the face is never a good one).

[FishinCricket]

You got me, outside of asking the sheriff to go and talk to him personally. This guy, from what I have heard, is probably not going to give up. And from what you guys have said, I would rather not argue with him personally (the thought of a gun in the face is never a good one).

But how could he possibly argue with "we want to do an annual clean up of this stream".. ?

[troutfiend1985]

But how could he possibly argue with "we want to do an annual clean up of this stream".. ?

You would think that would be a great way to do it. And that might very well work. Again, you're going to have talk to Prater face to face, maybe a good time to shine your shoes and look your best (and have a pocket gun on you)

[woodman]

Clean up on a stream that doesn't see much traffic...I didn't see any trash so to speak...from floods a lot of times trash can be hung up in the trees out of reach from the water...

Now clean up on the Elk would be a real choir with the drunken zoo that that river has to contend with...