good luck OAF, everyone else can suck it.. Eh?

[Greasy B]

yeah that’s what I’m thinking. I don’t want to change anything or anyone, I just want to go fishing. 

[tjm]

Research the history of the creek, chances are the man is right, Mo. stream law is non existent, except case law; which if I understand it means each instance or dispute has to be tried separately, but if you can find that the stream portion was used historically for commercial use or transport of goods to market, then we can claim it as a public thoroughfare.

Stream use is not up to MDC as an agency, they provide access to water on property that they own, it is up to us to figure  the rest of the stream out. In general if the stream was meandered when the land was first surveyed stream use  is public. I am not sure, but I don't think any streams in the Ozark region were meandered, most land deeds run under the streams and land owners pay taxes on every inch of it.  Eleven miles at average width of fifty feet works out about 67 acres that the guy is taxed on at the same rate as good crop land year after year after year,  with zero benefit. If the stream was not used historically as a thoroughfare, we would be trespassers, if we entered it without landowner permissions.

Any of you have a yard? Maybe an acreage? Do you want uninvited strangers to come there and use it as their own? Just think about it. Your property, your privacy, your liability if the stranger gets injured while on your property; still want those peckerheads in your yard doing who knows what? If you have a tent would you enter a random yard in town and set your tent up? Cook your diner there? Would you stand up for my "right" to do so?

What Mo. needs badly is a legislated/codified stream law that is universal. On streams where the land is currently deeded the state could take the stream bed to a high water point as public by eminent domain and pay the land owners for it at going price of good crop land. State could then take access lands as well and people could Legally use these waters. Get the float clubs, the fish clubs, the conservation clubs and maybe the hunters all involved as a coalition. Call write email all the legislators, go see the governor.

 

[tjm]

4 minutes ago, Greasy B said:

yeah that’s what I’m thinking. I don’t want to change anything or anyone, I just want to go fishing. 

Banging on doors and asking permission sometimes works in this kind of situation.

Hand guns were mentioned, handguns can be construed as provocative; I mention hunting ducks as a legal option, If the stream is actually a public way. In camo with shotguns you can always argue non provocation. Jus out doin a bit o huntin.

[Trout Addict]

1 hour ago, tjm said:

Research the history of the creek, chances are the man is right, Mo. stream law is non existent, except case law; which if I understand it means each instance or dispute has to be tried separately, but if you can find that the stream portion was used historically for commercial use or transport of goods to market, then we can claim it as a public thoroughfare.

Interesting, I always heard the term navigable water used in North Missouri. Then the argument was what's navigable water? Canoe and passenger or canoe and traps.  Anyways...

https://www.google.com/amp/s/ozarksfishin.wordpress.com/2011/03/14/are-you-trespassing-while-fishing-in-missouris-streams-creeks-and-rivers/amp/

 

1 hour ago, tjm said:

 

[tjm]

Fairly good article, Trout Addict,  but leaves me unsure of what they said.

Navigable rivers in Mo. are the Missouri River, the Grand River and the Mississippi River if I recall what I researched some years ago.

Mo. DNR 300 page summation of Missouri's water laws; http://dnr.mo.gov/pubs/WR51.pdf

Several years ago I found this blog (which the article links also) to be the most help in my (sort of) understanding of the mess; https://styronblog.com/law/harry-styrons-missouri-stream-law/   follow all his links and be prepared to spend some time with it.

If the stream is considered a public way then come the arguments over waters edge or high water mark and where the high water mark and where that is located.  Locally that seems to change with each case or perhaps with each Prosecutor. And do the log jams affect navigability? Last case I heard about apparently the land owner could prevent a canoe from portaging around or from removing the logs, but that was just what I got from a third party.  Case can also turn on what is the "ordinary condition" of the water in question. Not long ago I could cross a popular float stream and not wet my feet; is this navigable? When the creek moves over 50-100  yards from a flood what rights/boundaries/row/privilages does that change?  Does a list exist of waters that are legally  canoe navigable? I found none. If not then it remains one case at a time. Land owner has to press charges and prosecutor has to take it through the courts, most often this is more trouble than people want; so they just bluster and threaten.

I think the land owner has to post the stream side every 100 feet or purple paint it to actually call it posted, but I'm not clear on that, it may suffice to post both sides of the stream at the entry point. I can show you purple paint on the guard rail of a US highway row. Haven't tested it's legality. Other posted signs within the county road rows.

[Gavin]

Navigable has nothing to do with it. Elder v Delcor is the applicable Missouri case law. Has been debated many times. 

[Al Agnew]

Yep, what Gavin said.  Basically Elder v Delcour said that if you can physically float it, you have the right to float it.  And you have the right to fish, wade, stop on gravel bars, and portage around obstacles.  That is exactly what the Supreme Court decision said.  The public has an easement to float and fish and do all that other stuff on any waters big enough to float.  And since the original decision pertained to a stretch of the upper Meramec, above Cook Station, that is only really floatable in the spring or during higher water levels, it theoretically pertains to any stream that size or larger (which would include the stretch of the Osage Fork we're talking about here, because it's comparable in size to the upper Meramec).  Over the years, court cases have specifically delineated other smaller streams as legally usable by the public, when those streams were marginally floatable (such as Indian Creek in Franklin County, which is barely floatable in good water), but all the streams that have traditionally been floated often, are presumed to be included in the decision.

The problem, of course, is that it's up to the county sheriff's departments and county prosecutors to decide whether or not to ignore Elder v Delcour and agree to prosecute floaters on marginally floatable streams for trespass.  They may be in the wrong legally for prosecuting, but to fight a citation for trespass, you gotta have the money for lawyer fees, and you're going to lose in the county courts, so then you gotta appeal--more bucks for attorneys.  Eventually you'll probably win.  But then the next poor sap that tries to float the stream gets prosecuted by the same county authorities, and nothing changes except that you're poorer than you were before.  And...the harsh reality is that major landowners like the Plasters are VERY influential in county politics, and you ain't.

Yes, it would be nice if we had a definitive law governing stream use and delineating exactly what waters are legally usable by the public.  But...be careful what you wish for.  In the current political climate in Missouri, the chances are that any definitive law passed would result in LESS water being usable by the public, not more.

On a related note, as I've said before, the other big battle that needs to be fought is for stream access.  We are losing access left and right, as counties close traditional bridge crossings to access.  I cringe every time I plan a float that requires a bridge crossing access, because I never know when it will be closed the next time I go there.  The latest signs at the Highway 47 crossing of the Mineral Fork now say pretty specifically that you can't use the right of way for anything but highway usage, and the F Highway bridge is now completely closed to access as well, so unless you know a landowner, the upper Mineral Fork down to the Kingston MDC Access is now completely off limits to floaters.  

[tjm]

3 hours ago, Al Agnew said:

On a related note, as I've said before, the other big battle that needs to be fought is for stream access.  We are losing access left and right, as counties close traditional bridge crossings to access. 

Why is it that we are losing access, in your opinion?

[Flysmallie]

In this area it's been the trashing of the accesses and partying that goes on there. People just get fed up with it and they get shut down. 

[tjm]

7 hours ago, Flysmallie said:

In this area it's been the trashing of the accesses and partying that goes on there. People just get fed up with it and they get shut down. 

My neighbor provided a couple 50gal barrels for trash once, he'd move them from the gravel bar to the dumpster area with his tractor and paid the trash company to haul it. That lasted a couple months til some folks emptied the trash on the bar and stole the barrels. 

Knowing what I've seen happen on some nearby creek land, I would not give ten cents an acre for a farm with a creek flowing across it, unless it was for immediate resale.