Shoal Creek Is Private Property?

[Wayne SW/MO]

The problem troutfriend is that he thought, right or wrong, that he was confronting trespassers. I think it would be hard to make a case against one facing many that he thought were breaking the law by invading his property.

The bottom line is that if this is some new event then he's probably and outsider who bought some property and thinks he owns more than he actually does. I suspect if he wins out then the the accesses are worthless and that money could, and should, go to another more friendly county. I wonder how the commissioners would view a move like that?

It would be great if the whole issue of access was tested in the MO supreme court, but the farm bureau would sink millions into a floater unfriendly decision.

I have read that the original definition of navigational stream did not mean that it was floatable but that it was significant to use as a landmark in navigation. We're talking before roads and even trails. Basically anything that flowed year around could be used as a landmark for navigation from one point to another. Not all of the Missouri was floatable, but Lewis and Clark used it to get to the other side of the Rocky's.

[troutfiend1985]

The problem troutfriend is that he thought, right or wrong, that he was confronting trespassers. I think it would be hard to make a case against one facing many that he thought were breaking the law by invading his property.

The bottom line is that if this is some new event then he's probably and outsider who bought some property and thinks he owns more than he actually does. I suspect if he wins out then the the accesses are worthless and that money could, and should, go to another more friendly county. I wonder how the commissioners would view a move like that?

It would be great if the whole issue of access was tested in the MO supreme court, but the farm bureau would sink millions into a floater unfriendly decision.

I have read that the original definition of navigational stream did not mean that it was floatable but that it was significant to use as a landmark in navigation. We're talking before roads and even trails. Basically anything that flowed year around could be used as a landmark for navigation from one point to another. Not all of the Missouri was floatable, but Lewis and Clark used it to get to the other side of the Rocky's.

I understand your point Wayne, but the guy was armed, made a threat to TC and you do not have the right to use deadly force in defending property. With that, there seems to be a legitimate claim of harassment on this person. A person is not entitled to play the role of John Wayne just because the guy thinks he owns the river.

And I don't think this guy wins out on the case if it is brought to a court. Elder simply does not put that much emphasis on navigability. That case started out with testing whether the Maramec was navigable in that area, but the court determined that in fact the area was not navigable. Despite that area not being navigable, the court still affirmed the right of the public to fish and wade in that area. That, in my readings, is the holding of Elder. Is this debatable? Sure, that is why you pay a lawyer to argue. Then it gets to the nitty-gritty, however I think the fact that there are access areas in this river, it has a history of being floatable, and the strong language of a MO Supreme Court Case that has not been overturned in 50(?) years makes for a real uphill battle for anyone, including a well funded adverse party. Farm Bureau be darn in my opinion, Stare Decisis doesn’t value money or litigation fee’s.

[Trout Commander]

You were definitely not tresspassing. Set up a tent next time and wait for the deputies.

We didn't need a tent, the two deputies and k9 made it there rather quickly.

I think I'd call the sheriff's office (or go if you're close enough) and politely ask a few questions and let them know what happened. Did you guys happen to get the deputy's name? I don't think I'd go in there with a 'tude asking for the deputy's head or spouting the law though.

I can see them wanting to avoid a confrontation, and maybe encouraging you to move along even though you had a right to be there. Depends on the overall situation. But a little discussion with the authorities may just get them to visit this guy and set him straight on the rules. And, threats (such as 'you'll be in a world of hurt') can sometimes be enough for a disorderly conduct charge.

This is my intention.

Harassment.

565.090. 1. A person commits the crime of harassment if he or she:

(1) Knowingly communicates a threat to commit any felony to another person and in so doing frightens, intimidates, or causes emotional distress to such other person; or

(2) When communicating with another person, knowingly uses coarse language offensive to one of average sensibility and thereby puts such person in reasonable apprehension of offensive physical contact or harm; or

(3) Knowingly frightens, intimidates, or causes emotional distress to another person by anonymously making a telephone call or any electronic communication; or

(4) Knowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person; or

(5) Knowingly makes repeated unwanted communication to another person; or

(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person

http://www.moga.mo.g.../5650000090.htm

You're going to have to find the SOL on your own TC. But this should start you on the right path. Anyways, is it just me or the "you'll be in a world of hurt" coupled with the fact that the guy had a friggin' gun just screaming (6) of the above statute.

Exactly. And just to clarify the landowner (who said I would be in a world of hurt) wasn't carrying openly that I saw. It was the other feller.

Somehow I don't see that working yesterday... I'd say that sidling over to that Deputy and citing law would've only infuriated him.. Even Jason's simple question of "Which conservation officer did you speak with?" was met with a brisk "they'll all say te same thing".. The deputy wasn't interested in debating the subject. (which is why I think he should receive a letter)

And I don't remember anyone asking for or receiving the name of any deputy..

Right and right. No name was taken that I heard and when I asked him if we were legal where we were at that current time (which he said we were) he got pretty testy and even more so when I asked multiple times who the MDC agent he spoke to was.

So, after a couple of coffee's this morning and time to think about the situation, here is what I would do if I were you guys.

I would first call the sheriffs office, tell them what happened. TC, I would tell the sheriff that this guy threatened you and that he had a pistol on his hip, exact words and context and tell them you think you were harrased(quote the darn statute if you have to). I would also call the MDC, they have an interest in this as this is a floatable river and you guys were in the right. If nothing happens, that is when you start banging people's heads off the concrete by calling local representatives and possibly filing for a restraining order. That is what I would do, you can always play hardball, but sometimes sugar is easier to swallow for the other side.

Again, just to clarify, there were three individuals - the property owner and his wife(?) as well as another man working for the land owner (I do not know if he was payed, but he made it obvious he was working on the land owners behalf by stating "I found another one for you over here" in regards to another idividual in our party. The man working for the land owner had the gun displayed on his hip and the land owner threatened me. I was still very fearful as they were acting together and standing side by side.

[Wayne SW/MO]

The thing is TC he can be armed on his land and I think it would be hard to convince a jury that he was intimidating someone, even though that was most likely his intention. I read on another post that someone else was armed and if that was true then everything changes. If someone with no dog in the hunt came down there armed he would obviously be there to intimidate and play vigilante as a so called hired gun. The fact that he had the law on the way wouldn't help either of their causes, I would think so anyway.

I would even think he might be susceptible to legal action.

[FishinCricket]

The thing is TC he can be armed on his land and I think it would be hard to convince a jury that he was intimidating someone, even though that was most likely his intention. I read on another post that someone else was armed and if that was true then everything changes. If someone with no dog in the hunt came down there armed he would obviously be there to intimidate and play vigilante as a so called hired gun. The fact that he had the law on the way wouldn't help either of their causes, I would think so anyway.

I would even think he might be susceptible to legal action.

The guy who I saw with a sidearm wasn't the landowner..

As he came crashing through the brush toward the spot on the bank that we were all stopped at one of us asked "Did ya find any morels back in there?" to which the man replied "I wouldn't say if I did... SOB's keep stealin' em! You folks realize you're trespassing, right?"

Shortly after the landowner showed BACK up and changed his mind about calling the law... Something to do with one of us had been warned by him "multiple times" and that "That's it, I want you gone.. I'm calling the law down here!"

45 minutes later two sheriffs cars were on the banks of the creek telling us we were trespassing if we "set foot out of our crafts"...

[Trout Commander]

The thing is TC he can be armed on his land and I think it would be hard to convince a jury that he was intimidating someone, even though that was most likely his intention. I read on another post that someone else was armed and if that was true then everything changes. If someone with no dog in the hunt came down there armed he would obviously be there to intimidate and play vigilante as a so called hired gun. The fact that he had the law on the way wouldn't help either of their causes, I would think so anyway.

I would even think he might be susceptible to legal action.

I hear you loud and clear. Thing is, it was not the land owner with the gun. The land owner told me I would be in a world of hurt. I don't care so much as he get in trouble, that would be icing on the cake. The goal is to get the record set straight and everyone educated on the law so others can float the stream without being hassled and not having to go through the immense distress that I have suffered due to this encounter.

[Trout Commander]

I guess the guy with the gun could have owned the land adjoining Prick Praters land to the upstream side..... If so he never indicated that he did. Additionally if this is the case, Prick Prater was not on his own land when he threatened me. But it is my feeling that it was Prader's land and Mr. Friendly with the gun was on Prater's land.

[ness]

Just curious about this:

So, were you guys just floating through, wading in the stream, pulled up on the bank or what?

What'd you do for the 45 minutes while you were waiting on the cops?

When the deputy said you can't get out of the canoe did he mean onto the bank, or out in the water?

[Trout Commander]

Just curious about this:

So, were you guys just floating through, wading in the stream, pulled up on the bank or what?

What'd you do for the 45 minutes while you were waiting on the cops?

When the deputy said you can't get out of the canoe did he mean onto the bank, or out in the water?

Everything (so many people and boats) from a kayak floating in slack water to Chief's boat beached and both occupants seated to two of use up past our knees in the middle of the river to a couple guys standing on a gravel bar (well below high water mark)

In the 45 minutes we were floating and fishing. They came down to head us off at the pass a la John Wayne.

He said we couldn't beach our boats on the gravel or get out and wade.

[FishinCricket]

Just curious about this:

So, were you guys just floating through, wading in the stream, pulled up on the bank or what?

All of the above.. All of us were fishing, and all were within (at the least) 5 feet of the "streambed"..

What'd you do for the 45 minutes while you were waiting on the cops?

We continued to float and fish, we floated another 250 yards or so.. When the Sheriff's deputies showed up (two separate cars) they pulled up to the edge of the river (which was a 5 foot drop off over our heads).. we were all in our boats and the exact words of the deputy were "you aren't allowed to step foot" out of our craft.. (Jason attempted to give example by stepping out of the boat, which is i think when he was told that if he kept it up he'd be in a world of hurt)

When the deputy said you can't get out of the canoe did he mean onto the bank, or out in the water?

He said "you are trespassing if you get out of your craft"

That's my recollection, your honor...