Shoal Creek Is Private Property?

[hank franklin]

If you have a ruling in your favor you don't want try again.

Exactly.

[Al Agnew]

I definitely agree that it's best to let sleeping dogs lie on this incident. But this is going to keep coming up in other counties and other rivers, and at some point, it will probably go into the court system again. I was just speculating that perhaps it isn't as likely as we might think that Elder v Delcour would be substantially changed if it did.

Several western states have pretty restrictive laws on stream access. In most states, ownership includes the banks and bottom of the stream, but in Colorado and Wyoming, they are pretty much as strict as Kansas, in that you can float the stream from public accesses but cannot touch the bottom or banks, or even anchor, on some streams. Colorado is ridiculous, with long segments of some of their most famous trout streams totally off limits to the public.

It's one of the many reasons we now live part time in Montana. Montana has probably the most permissive stream access law in the country. Basically, if it has fish in it and you can get onto it legally, you can wade it and fish it anywhere no matter whether it's privately owned or not, and that includes not only floatable streams but small creeks as well. The original law has been challenged at least three times in Montana courts, and each time has been upheld completely. The latest threat was just beaten down, an amendment to the law that would have made the small side channels of rivers like the Yellowstone private as long as the landowner put on some kind of water regulating device at the head of the channel.

And on the Yellowstone, many of the islands are public as well. The island in front of our house is public land. And nearly all the better trout water of the Yellowstone is also off limits to motorized craft, as are a lot of other trout rivers in the state.

[FishinCricket]

I don't see any supreme court justice ruling against the fisherman, but these courts these days can be a bit out of touch with reality.. (I.E. $2M for spilling coffee on yourself?)

[hank franklin]

Al, I don't want to be overly cynical but it seems likely Elder vs. Delcour would be scaled back somewhat, especially re these small streams and creeks where passage is rare and mainly on foot. It seems quite likely any right of passage here could be lost altogether. This isn't based so much on concepts of law but politics and the constitution of the court as I know it.

What I would fear more is an action of the legislature. Here too the established float streams would probably not be affected, but the smaller streams like Shoal could see rights eroded.

Put it this way: Do you feel that Elder vs. Delcour would be expanded? That the float-fisher's rights would be enhanced any? This I find highly doubtful.

[ollie]

Buzz , your right about one thing. The old man will have a heart attack when the Undercliff starts canoe shuttles this summer. Since they just got bought I know the new guy is doing everything possible to generate money. The way I understand he also owns the campground to the south of Joplin on 43. So he is looking to expand his floating options. I haven't found a land owner yet that said no to a river clean-up if approached in the right way! BTW, I did vote for the sherriff this past election and I think he will be on our side. Did you guys notice any construction equipment around there? Just curious cause I have seen Prater construction signs around town.

[flytyer57]

Waters up.

Should be able to float right up to Praters back door and ring the doorbell as you go by.

[Guest P. owensby]

Waters up.

Should be able to float right up to Praters back door and ring the doorbell as you go by.

That's true, and folks can use their middle finger to ring that bell,lol, just kidding!!!

[Wayne SW/MO]

The one thing that would worry me if Elder is revisited is the non-navigational status. The court has already given ownership to the landowner and if it decides that a creek has to have had some prior commercial use other then canoeing, many would fail the test.

[troutfiend1985]

Al, I don't want to be overly cynical but it seems likely Elder vs. Delcour would be scaled back somewhat, especially re these small streams and creeks where passage is rare and mainly on foot. It seems quite likely any right of passage here could be lost altogether. This isn't based so much on concepts of law but politics and the constitution of the court as I know it.

What I would fear more is an action of the legislature. Here too the established float streams would probably not be affected, but the smaller streams like Shoal could see rights eroded.

Put it this way: Do you feel that Elder vs. Delcour would be expanded? That the float-fisher's rights would be enhanced any? This I find highly doubtful.

I would say that it would take a lot on the part of legislature to kill off revenue, espiecially with our current economic state. Yes, I don't think Elder will be expanded, but again, stare decisis, and these facts match. And I don't see shoal being that small, look at the pictures, and MDC has boat ramps on Shoal. So I'm not sure how the smaller streams would be affected, as we're not really talking about the smaller streams, we're talking about a floatable public way.

The one thing that would worry me if Elder is revisited is the non-navigational status. The court has already given ownership to the landowner and if it decides that a creek has to have had some prior commercial use other then canoeing, many would fail the test.

The court in Elder held that the Maremec was nonnavigable, that's the whole point to the "public way" that I have been referencing. Elder has been cited as recently as 2003 in MO.

[Wayne SW/MO]

The court in Elder held that the Maremec was nonnavigable, that's the whole point to the "public way" that I have been referencing. Elder has been cited as recently as 2003 in MO.

But didn't it cite previous commercial use as the their reason for allowing trespass of the streams banks and bottom?