Meramec River Shooting

[Old plug]

Yeah I am with Al. I think the fisherman could be big losers in this stuff go to either legislature or through the courts. Everyone should try to watch Jefferson City closely. Especially any kind of Omnibus act where they through a whole bunch of bills into one and vote on it.

[id10t]

Justin Spencer, it's nothing personal. At some point this issue will be decided in the Legislature, the Courts, or both.

I personally hope nothing changes and that Elder vs. Decour as Al said is reaffirmed. Public easement, high water mark, etc.

However, my point is I feel landowners would have standing to challenge this, and may well win. It's possible we--all of us--could lose this right of passage on gravel bars altogether. That would be a terrible thing.

However, I think it's more likely that the law or the courts will recognize the time-honored Missouri right of passage, but I think the distinction may turn on commercial vs. non-commercial use. In the case of a non-commercial, private floater, either you have right of passage or you don't. No middle ground.

However extending that right of passage to a commercial operation raises different issues. Why should the commercial operator enjoy use of the gravel bars for his clients with no compensation or consideration to the landowner? I believe you would have a hard time defending your position on that question.

Like it or not, I believe the law would in fact hold you responsible for the impact of your commercial activity on the rivers and stream banks. This is not to say that you would be held responsible for the individual actions of clients (floaters), no. But the impact your activity in total has on the adjacent landowners would be called into question. On this point I feel you (not you personally, but the commercial operator in general) would lose.

However extending that right of passage to a commercial operation raises different issues. Why should the commercial operator enjoy use of the gravel bars for his clients with no compensation or consideration to the landowner? I believe you would have a hard time defending your position on that question.

Definitions are needed.

Basing these thoughts on a canoe or kayak being a form of transportation. There is a huge difference between a commercial operation and a commercial operator. The outfitter is a commercial business/operation. But they are not a commercial operator by transportation standards. They are a leasing/rental company. The person/company that leases/rents from them is the operator. The outfitter has no idea what materials legal or otherwise I am going to have in the rental vehicle once it hits the water.

Case in point the Oklahoma City Bombing. The truck leasing company had no idea what or how that truck was going to be used. How could they or why would they be held liable for the destruction and cleanup of the situation. The truck was parked on a public right of way. The leasing company was named in several of the lawsuits however they were also dismissed as defendants in those lawsuits.

The second part is the state has made the water a right of way to the public including those gravel bars so in a since they took the land owner out of the equation already. (not saying its right but it is the way it is) With it being a right of way there is not much that can be done. I am sure there are plenty of folks on here who have lost property to roads, sidewalks, etc etc. My best friend built a rock wall on his property and had it torn down because it was in the utility right of way. 22 feet from the edge of the road. The easement was 30 feet. Things like this go on every day.

However, I think it's more likely that the law or the courts will recognize the time-honored Missouri right of passage, but I think the distinction may turn on commercial vs. non-commercial use. In the case of a non-commercial, private floater, either you have right of passage or you don't. No middle ground.

Every floater is a private floater. Every Floater is a private citizen using the water as the state set forth. Because they use a rental does not change or make them any different that the fella who owns his own boat and in my opinion nor should it. If goods were actually moving and trade occurring for commercial purposes there may be a case for regulating commercial traffic however that is not occurring. We are talking about recreational not commercial traffic. (not so say that there might not be some meth trafficking going on

If this were the case what would stop an outfitter giving/loaning the canoe to a floater and getting paid for the shuttle or the ice and food to make up for the 40.00 of the canoe. Does the outfitter become responsible for me with my own boat because he shuttled me? Does the ice companies who's name is on the bag become responsible for me because I left it on a gravel bar?

Like it or not, I believe the law would in fact hold you responsible for the impact of your commercial activity on the rivers and stream banks. This is not to say that you would be held responsible for the individual actions of clients (floaters), no. But the impact your activity in total has on the adjacent landowners would be called into question. On this point I feel you (not you personally, but the commercial operator in general) would lose.

Problem is there is no law so to speak. The law ( a prosecutor/police dept) is not in most cases going to take up this kind of case on property damage. They will tell you to get a lawyer and sue. While laws (the Legislature) could write laws to hold the outfitter responsible I don't think there is any logical way to make it happen. There are to many variables to hold one entity responsible and not nearly enough folks to investigate it. Lets say mad land owner dumps trash on his gravel bar calls the authorities and they have to investigate. You cant prove who put the trash there. High water brings trash in and landowner calls and someone has to investigate. There are way to many pitfalls and expenses to cover all of the waterways in the state. If an officer does not see the crime committed there is not much they can or will do except tell you to contact an attorney it is a civil matter. The burden is then put on the Land owner to prove his case. Same would be true if the outfitter tried to sue a land owner for trashing a canoe. In most cases it will be civil if it is a he said /he said case.

The problem as I see it is it is only really important to 25K folks if that many. River Fisherman, Outfitters, & Landowners. If you put those 3 groups in a room the I bet the concerns by all parties would mirror each other. The general public is the X factor that can not be accounted for along with a few nutts from the 3 groups in the room. Unfortunately there is no law of common sense or stupidity and in this country I hope there never will be. I really don't see much changing because of the shooting because I don't think there is any money to be made in the long run by attorneys. I don't think the legislature has time to deal with such trivial (to them) issue.

(HUMOR FULLY INTENDED)

The legislature cant even figure out drunk driving laws. How simple is that either you blew past the limit and were driving or you didn't no grey area there. But with them there is always a grey area like when to really get serious about how many DWI before they throw the book at you.

I could here the debate on the floor now.

Senator 1: So some guy built a camp fire on a gravel bar next to the river and the land owner wants us to limit floaters because the fireit left a black spot on the rocks defacing his property.

Speaker of the house: Yes Senator

Senator 1: where is Senator 4 shouldn't he be here since he brought the bill to the floor.

Speaker of the house: He was excused Bass pro outlet is having a big sale today and he needed to be there.

Senator 2: Can we go take a look at this site I have a canoe.

Speaker of the house: Well no it was washed away in the last rain storm.

Senator 1: Did he cut down the landowners trees for firewood.

Speaker of the house: Well no according to this the fella used deadfall.

Senator 2: Sounds to me like he was removing a potential fire hazard. Are there small mouth in that river.

Senator 1: So how many outfitters would this affect if we made them responsible.

Speaker of the house: 35 or so Senator.

Senator 2: I recommend we table this discussion till we speak with the Governor his brother in law is a guide/outfitter.

Speaker of the house: That being tabled back to the DWI Laws 5 or 6 convictions before serious jail time

[exiledguide]

I hear you JoeD but I don't think any one else does........... or cares

[Wayne SW/MO]

This is all speculation at best. Until the shooter goes to court and reveals his defense there is no way of knowing if river access will even come up. I doubt his lawyer will want use a loosely defined right as a defense. He's going to have a hard time getting past "I'm nuts, but not that nuts". He can't claim a Castle defense because I don't believe it covers land. He will have a hard time trying self defense because his actions put the floaters in a self defense mode first.

The bottom line is if the information available is accurate it will probably be a common second defense verdict and what compelled him will probably determine his sentence.

If they were on a gravel bar it won't matter because unless he owns both sides of the river there is no way the floaters could know who's land they might be on.

[hank franklin]

Hopefully this example will illustrate where I’m coming from:

A family owns land on the Meramec. Very nice gravel bar. They swim, fish, boat, picnic, drink a few, ATV, four-wheel, etc. Good times.

The property is not on a heavily used stretch, so the problems with floaters are minimal. And no one in the family cares one whit if people stop there occasionally, camp and move on. (Which they do). All good.

However, for sake of discussion, let’s say an outfitter buys a farm up the river and starts dumping hordes of floaters onto this stretch. The very nice gravel bar is now crowded with floaters on the weekends. Many of them are drunk and disorderly. They pull their canoes up right next to where the family is hanging out. They leer at the ladies. They cuss, litter, play loud music and generally make a nuisance of themselves. The family game cameras occasionally are spotting them in the woods, even messing in Grandpa’s garden. Sure, the family could ask them to leave but are you going to confront a gang of river drunks?They've call the sheriff but the sheriff says sorry, not much we can do.

So the family goes to the outfitter and says we got problems. Your floaters are ruining our property. The outfitter says sorry, ain’t my deal. The hordes keep coming. Finally one of the nephews has had enough and confronts some who’ve crossed the line. A fight ensues and nephew gets beat up. His ATV gets trashed.

The family has had enough. They hire a lawyer and sue the outfitter for damages. The nice gravel bar is now overrun with his floaters. The family can no longer reasonably use it on weekends. They have pictures, game cams, cellphone videos to document. Family says If outfitter’s floaters are taking over our gravel bar, we need to get paid!

What does the court say? I don’t know. It’s a tricky question, to be sure. But if I was the outfitter I'd want a pretty good lawyer.

[Lancer09]

What does the court say? I don’t know. It’s a tricky question, to be sure. But if I was the outfitter I'd want a pretty good lawyer.

I don't know about that. Sure the individuals in your story were going onto private property and causing damage, but did the outfitter put them there. It was the floaters personal choice to trespass, the outfitter did not make them.

And I don't think the family could demand money for the use of the Gravel bar. I think we have established that gravel bars are essentially public property, I think that is plain and simple. I can't set up a toll booth along the street in my public neighborhood and force people to pay to drive along the street in front of my house.

[fishinwrench]

As glorious as it might be in your dreams, no amount of money should be capable of buying a river, and no one "family" should be allowed to own one. Not even a short stretch of one. The rivers and the sky are not on the market. If they were then a landowner could survey and sell just his/her stretch of riverbed....Has that ever been done, or even tried?

[Brian Wise]

We had a similar situation (minus the outfitter angle, which is absurd in my opinion) in Ozark County a couple of years ago. A popular swimming spot (not on a main stream by any means and I swam there a LOT as a kid) had been marked private property by new owners. Thing is, it is located at the end of a County Road, the County Road stops at the gravel bar itself....double easements. A rough family is down there partying, an illegal alien drives an atv down there to run them off, words are exchanged, illegal alien gets punched, illegal alien pulls gun and shoots an 18 year old. Illegal alien gets convicted and deported, land/stream rights don't get taken away from anyone, and the manufacturer of the ATV doesn't get a finger pointed at them the whole time.

[fishinwrench]

How much ocean floor do folks with coastal property own?

[lee G.]

I think it's out to the 3 mile marker FW.