Missouri Stream Access Law, One More Time

[Al Agnew]

http://scholar.google.com/scholar_case?case=16972749023983545035&q=elder+v.+delcour&hl=en&as_sdt=2

The above is the entire text of Elder v Delcour, the MO Supreme Court case decision which is supposed to be the applicable law in stream access in MO. There is obviously some legalese and a lot of explanation of how the case was decided, but the following are the relevant parts of the decision.

First, this is the trial court's decision, which was being appealed to the Supreme Court:

"The trial court determined the issues presented by the pleadings and declared the law respecting plaintiff's rights as follows: "That the Meramec River at the place in question and as described in the petition is public water and subject to travel by plaintiff and those who desire to wade it or to float down it in boats * * * that plaintiff has a legal right to fish in said stream subject to the regulations of the Missouri Conservation Commission and the Laws of Missouri * * *." The court declared that plaintiff had "the legal right to carry his boat around obstacles in the river where obstructions preclude the passage of his boat, subject to liability for damage he might inflict on defendant's property * * * (and) the legal right to tie up his boat or to camp on said stream as long as he uses the stream bed, gravel bars and clearly recognizable area over which the stream flows during its normal stages." The trial court further ordered "that defendant desist in his efforts to hinder or close such free passage up and down the said stream.""

Note that the trial court said that the river is public water, subject to travel by boat or wading, and that the public could camp on gravel bars.

Here is the basis for the challenge to the trial court decision:

"Defendant, as appellant here, contends that the judgment entered by the trial court is erroneous because the Meramec River at the point in question in this case is a nonnavigable stream; that the owner without reservation of land adjacent to the non-navigable stream has the legal title to all of the lands lying between the meander line and the middle thread of the stream; that appellant, being the fee simple owner of the land through which the Meramec River flows, has the absolute right of ownership to the bed of the river as well as to the land on each side; that the Meramec River at the point in question is not a public highway, nor open to free and unrestricted use for the purpose of passage and navigation; and that the waters of said river at said point are private waters and the appellant as owner thereof has the exclusive right to fish therein."

The landowner was saying that he owned the stream bed, and that the river was private water and he had the exclusive right to fish it.

The Supreme Court ruling on whether or not the Meramec in the disputed section was a "navigable stream" as follows:

"In view of the admitted facts, it is nevertheless our view, that the Meramec River at the point in question is a "non-navigable river" as that term is used in this state for the purpose of determining title and whether or not appellant, as the owner of the farm through which the river flows and as the riparian owner of both banks of the river, is the owner (subject to the exceptions, limitations and burdens hereinafter referred to) of the bed of the river from the meander line on one shore to the meander line on the opposite shore. Under similar facts the courts of this state have repeatedly taken judicial notice of or have held that such a stream is not a "navigable river" as the term is used in this state where title to the bed of the river is involved."

The Supreme Court agreed that the landowner owned the stream bed.

But:

"Appellant was therefore the owner of the bed of the river across and through his farm, title was not retained in the public, but appellant was not the absolute owner thereof and we must further determine the exceptions and burdens to which his ownership was subject...

"Clearly appellant's title and ownership of the river bed was not absolute as contended by him, but was subject to the burdens imposed by the river. He could not divert or obstruct the flow of the water without civil and criminal liability...He could not cut loose or set adrift a raft or boat or canoe tied to a tree on the banks of the stream, although he owned the banks...He could not divert the water to a private lake on his own land to the exclusion of others...He could not obstruct the free passage of fish in the stream without criminal liability...He could not build a dam in a water course on his own land without proceeding as require...If the river formed the boundary line between appellant's property and that of another, the boundary line and ownership would change with changes in the center or thread of the stream."

So the ownership of the stream bottom and banks did not give the owner unlimited property rights.

The Supreme Court then reviewed earlier Missouri cases having to do with rivers being "public highways". It first mentioned a law passed in 1838 stating that the Meramec was a public highway up to the mouth of Crooked Creek (which was a few miles downstream from the stretch in question), noted that this law was repealed in 1856, and determined it was not relevant. Then it stated:

"In determining whether appellant's land within the water area of the river was a public highway and so subject to an easement for public travel by boat and wading, we must review the applicable decisions of the courts of this state."

The Court then went on to examine several more cases. The first was a dispute between a log tie company and landowner in which the tie company was using the upper Gasconade River to float logs, and then taking them out across a gravel bar and up a bank to a road. The bank (and gravel bar, presumably) were owned by the landowner, who sought an injunction to keep the tie company from using the bank between the gravel bar and the road. The landowner won, the court then deciding that the use of the bank was broader than the right of passage along the river...in other words, the river was a public highway in the sense of moving up and down it, but not in using the banks along it.

The next case involved the use of a slough or backwater along Current River. The court ruled then that the backwater was subject to the same uses as the main river.

Next was a case on Indian Creek, a tributary of the Meramec that still has the reputation of having very antagonistic landowners. It found the Indian Creek was indeed a public highway and that those floating tie rafts down it to market had the right to do so, but not the right to alter the stream banks and bottom in order to make getting the log raft down it easier, and the landowners had no right to obstruct their passage.

And then the Supreme Court stated its decision on the public's right to use the river as a public highway:

"In view of the admitted facts concerning the capacity, suitability and use of the river at the place in question for public and commercial purposes, the provisions of the several Acts of Congress and the Constitutions mentioned and the well established applicable case law of this state, we must and do hold that the waters of the Meramec River are public waters and the submerged area of its channel over and across appellant's farm is a public highway for travel and passage by floating and by wading, for business or for pleasure, and that in traveling the course of the stream by canoe or wading, respondent was not a trespasser on the property of appellant."

Then the Court addressed the contention that the landowner had the exclusive right to fish the part of the stream adjacent to his land. The Court quoted a previous decision by another Supreme Court:

"It is enough that there is a plain distinction between such creatures [mussels, sunk in the mud of the river bed] and game birds or freely moving fish, that may shift to another jurisdiction without regard to the will of land owner or State. Such birds and fishes are not even in the possession of man."

The landowner/apellant had cited a case in which the court decided that... "It would seem clear that a man has no right to fish where he has no right to be. So it is held uniformly that the public have no right to fish in a nonnavigable body of water, the bed of which is owned privately." This was rejected, the Supreme Court saying, "Respondent, however, was not a trespasser and he was fishing where he had a lawful right to be wading in or floating upon public waters, which were flowing down a public highway...Since the ownership of the fish in the stream belonged to the state and since respondent was not a trespasser in passing down the stream by boat or by wading, he had the right to fish and to take fish from the stream in a lawful manner."

And in conclusion, the Supreme Court ruled simply: "The judgment of the trial court is affirmed."

Look again at the finding of the previous court, which was affirmed in its entirity by the Supreme Court. It had ruled that the public had a right to go upstream or downstream, by boat or by wading, the right to portage around obstructions as long as there was no damage to private property in doing so, the right to tie up a boat along the bank and to camp on gravel bars. So there is should be no doubt whatsoever that all normal uses of streams deemed "public highways" are allowed, including wading, floating, paddling upstream, camping, and fishing.

But what was not completely covered by the ruling, and what has never been covered, is exactly which streams are considered "public highways". However, the decision did give some precedent for this. The character of the Meramec in the section that was in dispute, and the Court's citing of the Indian Creek case, are the two most important pieces of this puzzle. The Meramec in that area is not considered floatable year-round. Stream flows are such that it is usually easily floatable in the spring and during periods of good rainfall, but its flow shrinks to no more than 15-20 cubic feet per second in a normal summer, and less than that in extended dry periods. Indian Creek is even smaller, probably flowing no more than 10-15 cubic feet per second in late summer and not always floatable without a lot of scraping bottom even in the spring. The one thing that the Court seemed to consider the determining factor was that both Indian Creek and the Meramec had been used to float railroad ties to market, and if a stream was big enough that it could be used for that purpose for "several months out of the year", it was to be considered a "public highway".

So, it is probable that most marginally floatable streams in the Ozarks were used for that purpose at some time in the past, and are big enough to have done so. If Indian Creek is considered a public highway, most certainly some other streams in which people have run afoul of landowners recently, including the upper Osage Fork, Shoal Creek, and the Little Piney, are as big or bigger, just as likely to have been used to float ties in the past, and therefore public highways as well.

There are a lot of fallacies out there concerning this, so note: It makes absolutely no difference whether a stream is named as a "creek" or a "river" (or a "fork" or a "prong"). It makes no difference whether the stream is "navigable". Navigability is an entirely different legal definition, and only a few miles of the very largest Ozark streams have ever been ruled "navigable". It DOES NOT MATTER that the stream banks and bottom are privately owned, because that ownership does not give absolute property rights, and the public still has an "easement" to use the stream by boat OR BY WADING, including fishing and camping (and since you need dry land to camp, that means the public has just as much right to use the gravel bars as the water and bottom). What the public cannot do is use the owner's land to access the river, and the public cannot alter or damage the owner's land while using the river.

So where does that leave us?

As long as Elder v Delcour is the Supreme Court decision used in determining trespass or not, it seems clear that future courts would decide that the public has the right to use these streams by wading or floating and to use the gravel bars and low islands. The problem is always that county sheriffs, judges, and prosecutors are laws unto themselves and are often more likely to side with influential landowners in their county than with floaters and anglers. So even though the floater or angler is entirely within his rights to float and wade the stream, that doesn't mean he won't get arrested and even convicted in that county. If that happens, his only recourse is to appeal to a higher court. Most anglers don't have the time or money to do so.

It might seem that the best solution is to push for the legislature to designate exactly which stream sections are "public highways" and which are not, which would remove all ambiguity from the issue. But there are reasons why that might not be a good idea. Somebody would still have to justify the eligibility of many marginally floatable streams if the legislature decided that only obviously floatable rivers should be included. And such a designation would have the result of showing landowners that they have an absolute right to lock out the public from streams that didn't make the cut. While it might give us a surer right to be on many creeks, it would probably also lock us out of many creeks that today are still informally open.

Still, that may be the way it will have to happen. We are losing access. As more and more new bridges are built with no provision or opportunity to park and get to the river, as obscure county roads are closed, as counties respond to problems with partying and littering at bridge crossings by closing off informal accesses with rocks and cables and signs, and as wealthy landowners take the law into their own hands and close off stream sections with the blessings of the county officials that listen to them. I'm worried. It's getting to where if it isn't a designated public access, we can't use it. We are losing our rights to these rivers in small increments.

[Feathers and Fins]

Al I for one would much preffer a solidified law outlining which ones are " public accessable " spelled out in the regs. I forget which state " i want to say Montana " had similiar issues and when they outlined it many land owners worked with the state to allow building of public parking lots and easways for people to actually gain access.

The deffinitions would need to be clearly spelled out but shouldnt be to difficult and then a good solid law could come of it and hopefully a releationship between land users and land owners.

[fishinwrench]

Somewhere within the "navigable" determination are the words "used for commerce". By definition that includes any stream that is or has been mined for minerals or gravel...... and that opens up just about every single stream in the state, as I understand it.

Can a person not file an appeal without an attorney? And if so, is there a "fee" for filing one?

The tributary's of our impoundments pose what I consider a valid question, even with gray law. At which point are you no longer sure of being on a public waterway when navigating up a tributary arm?

[exiledguide]

I don't understand why this is even an issue usually when the supreme court makes a ruling law enforcement abides by it. It would seem that violating that law would be a crime itself and doing it at the behest of another person "landowner' would seem to indicate a criminal conspiracy. I also don't understand why MDC, MSA or Trout Unlimmited don"t use thir influence to get this issue solved.

Also, didn't we used to have spell check on this forum?

[drew03cmc]

Al, thank you. I wish it was spelled out someplace where we are legal and where we are not.

[Justin Spencer]

I don't understand why this is even an issue usually when the supreme court makes a ruling law enforcement abides by it.

For some reason I don't think the average law enforcement officer, MDC, water patrol, or county even know there was a supreme court ruling. Any time I ask one for clarification I never get much of answer, so much so I can't even remember what kind of explainations I have gotten.

Seems like that ruling spelled out the places that are legal as being anywhere the stream flows during it's normal stages (which to me is below the high water mark). Normal gravel bars are often covered with water with just a moderate rise on the river so according to this ruling it would be legal to camp, pull up a boat etc. on a gravel bar.

[Chief Grey Bear]

For some reason I don't think the average law enforcement officer, MDC, water patrol, or county even know there was a supreme court ruling. Any time I ask one for clarification I never get much of answer, so much so I can't even remember what kind of explainations I have gotten.

Seems like that ruling spelled out the places that are legal as being anywhere the stream flows during it's normal stages (which to me is below the high water mark). Normal gravel bars are often covered with water with just a moderate rise on the river so according to this ruling it would be legal to camp, pull up a boat etc. on a gravel bar.

The key is, even though you are legal, the landowner also has a right to press tresspassing charges. That is where the courts come in. Law enforcment is not going to sit there and listen to a whiney landowner. He just passes it on to the courts and lets them decide.

[drew03cmc]

**** the landowners. If we, as law-abiding sportsmen, are within the law, it should be illegal for them to harass us.

[Justin Spencer]

Isn't what the supreme court ruled now considered the law in regards to trespassing on rivers? I think only the D.A. can actually charge someone with a crime so hopefully they would look at the ruling and not press charges.

[drew03cmc]

Even some of your DAs don't know about the ruling, I am sure.