Washington County Creeks & Streams Info: Don't Get Shot!

[Flysmallie]

[ness]

Cute dog, Flysmallie, but clearly well above the high-water mark and therefore fair game.

[hoglaw]

You were NOT on the same clear creek that's down by Ft. Smith. That one is a big tributary of the Arkansas, and I've caught a bunch of crappie in it. Yours is a tributary of the Illinois. It flows through Locomotion Fun Park, through Johnson, the Blessings golf course, and ultimately into the Illinois. There are small parts of it that are floatable, but most of that water is dammed up and very very private. I'd have a hard time calling clear creek navigable by any stretch of the imagination. It's possible to float a boat down it, but you'd be dragging 75% of the way. So my understanding is that it is indeed private property.

That being said, it's not posted where you were to my recollection. I only know that because I've fished it dozens of times. I never had an issue with anyone, but I guess I just never got caught. You will get run off quickly at the Blessings. But people fish it there at Wheeler all the time. I used to walk a long way upstream from that bridge.

The stuff about "no streams in Washington County have been declared navigable" is BS. The Illinois certainly is, and there's no magical "declaration" that makes something navigable or not.

In my estimation, you were trespassing just like the hundreds of other people that fish down there. There may even be some kind of public easement to fish it by now it gets used so much. But it's not posted, and I think that may be a requirement for misdemeanor prosecution. The guy shooting his gun at you is rediculous, and serious scary. I had my own encounter with gun toting landowners not too long ago. Fortunately they never fired a shot. I do believe you did the right thing reporting it to the sheriff. I would have if they shot near me. And good on you for not bowing up to someone with a gun.

I was going to ask if the guy was shooting before you got around, but I'm pretty sure you wouldn't have kept walking downstream if he was. Seems like your presence/dog's presence is what prompted him. That sucks and I'm sorry to hear it.

[Mark]

This debate of what is navigatable waters and what is not navigatable waters, and public usage rights, and high water mark, has been going on for my entire lifetime of 56 years. After someone getting killed on the Meramac, you would think that someone would make the legislature get the specifics of the law regarding the public's rights written into law. Granted, this incident happened in Arkansas, but as far as I know, nothing has changed in Missouri get specific written documentation on what is considered navigatable or not navigatable rivers and streams. The issue doesn't appear to be that complex, other than typical politicians wanting to please both sides on the issue.

[Jason R.]

You were NOT on the same clear creek that's down by Ft. Smith. That one is a big tributary of the Arkansas, and I've caught a bunch of crappie in it. Yours is a tributary of the Illinois. It flows through Locomotion Fun Park, through Johnson, the Blessings golf course, and ultimately into the Illinois. There are small parts of it that are floatable, but most of that water is dammed up and very very private. I'd have a hard time calling clear creek navigable by any stretch of the imagination. It's possible to float a boat down it, but you'd be dragging 75% of the way. So my understanding is that it is indeed private property.

That being said, it's not posted where you were to my recollection. I only know that because I've fished it dozens of times. I never had an issue with anyone, but I guess I just never got caught. You will get run off quickly at the Blessings. But people fish it there at Wheeler all the time. I used to walk a long way upstream from that bridge.

The stuff about "no streams in Washington County have been declared navigable" is BS. The Illinois certainly is, and there's no magical "declaration" that makes something navigable or not.

In my estimation, you were trespassing just like the hundreds of other people that fish down there. There may even be some kind of public easement to fish it by now it gets used so much. But it's not posted, and I think that may be a requirement for misdemeanor prosecution. The guy shooting his gun at you is rediculous, and serious scary. I had my own encounter with gun toting landowners not too long ago. Fortunately they never fired a shot. I do believe you did the right thing reporting it to the sheriff. I would have if they shot near me. And good on you for not bowing up to someone with a gun.

I was going to ask if the guy was shooting before you got around, but I'm pretty sure you wouldn't have kept walking downstream if he was. Seems like your presence/dog's presence is what prompted him. That sucks and I'm sorry to hear it.

Hoglaw- I just looked it up in the code and it appears that trespassing on clearly posted land can be a Class B misdemeanor- while un-posted is usually a C. I think the most severely punished trespassing would be going into a house or occupied structure. Not knowing that you are trespassing can apparently work as a defense. I have a feeling if one were prosecuted for trespassing in a creek- it would result in a small fine. In my opinion- shooting a warning shot anywhere near a person is assault. I can't really think of a way that it isn't assault.

[Feathers and Fins]

Please note Ham I said Gone Ferral. If a dog chases me or livestock or threatens someone it needs to be put down. A lost dog or escaped is one thing but an aggressive animal is another

[grizwilson]

This debate of what is navigatable waters and what is not navigatable waters, and public usage rights, and high water mark, has been going on for my entire lifetime of 56 years. After someone getting killed on the Meramac, you would think that someone would make the legislature get the specifics of the law regarding the public's rights written into law. Granted, this incident happened in Arkansas, but as far as I know, nothing has changed in Missouri get specific written documentation on what is considered navigatable or not navigatable rivers and streams. The issue doesn't appear to be that complex,

other than typical politicians wanting to please both sides on the issue.

http://www.dnr.mo.gov/pubs/WR51.pdf

Page 142 pretty clear

[Hog Wally]

I've never been a fan of posting my properties. Bit of an eye sore. If you don't know who's land your on, your trespassing. Unfortunately even a ( well trained dog ) could run off onto someone else's land and get into mischief. Now you have problems. My dog did and got himself kilt. Oh well Move on Idiots shooting guns are a bummer.

[SmallyWally]

http://www.dnr.mo.gov/pubs/WR51.pdf

Page 142 pretty clear

So if you're in a Missouri navigable waterway, you just better stay on/in the water or you ARE trespassing. It is a low water state. Good info good read, thanks for sharing griz.

[bfishn]

A pretty good summary of Arkansas' stance;

"... in Arkansas this concept was expanded in the 1980 case of Arkansas v. McIlroy 30 involving the Mulberry River. The evidence introduced in the case showed that the Mulberry had been used by the public for recreational purposes for many years. This included fishing, swimming, and canoeing. The court evaluated the standard definition of navigability but adopted what might be called the “pleasure boat” definition of navigability. For this purpose, the court suggested that it is not necessary that the stream be floatable at all times, but it can be deemed navigable based on its capability during part of the year for use by flat-bottomed boats for fishing or canoes for floating or both. The court acknowledged the traditional definition of navigability, which focused on the usefulness of the stream for transporting articles of commerce, but indicated that navigability may be influenced by recreational as well as commercial use of a stream. In the end, the court joined several other states that had ruled that a stream which supported recreational boating on a consistent basis was navigable. Thus, the riparian landowner was enjoined from interfering with the passage of recreational boaters on the Mulberry.

The Arkansas court joined courts in California,31 Idaho,32 and Missouri,33 among others,34 in applying a state test of navigability for recreational purposes that is less restrictive than the traditional federal test..."

*an excerpt from;

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CCUQFjAB&url=http%3A%2F%2Fnationalaglawcenter.org%2Fpublication%2Flooney-how-the-concept-of-navigability-may-determine-the-rights-of-landowners-along-streams-national-aglaw-center-publications-2002%2Fwppa_open%2F&ei=UKAkVP_RFsXroATJi4FQ&usg=AFQjCNEwMn0q6giVrAa9Hio5eQl4ncYGlA&bvm=bv.76247554,d.cGU

And it is possible for an Arkansas stream to be deemed navigable in one county and not another. To be deemed navigable means that someone had to officially determine it. That was done for most of the major streams in Arkansas over a hundred years ago. Not so for many of the obscure little streams.

Perhaps the best action would simply be to have the section in question "deemed" in court. Until it has been, one can assume that a landowner has just as fair a claim in court as a recreational user.

Didn't they rent paddle boats on it below Lake Fayetteville? That could be evidence of commercial navigation.