Are you trespassing?

[gonefishin]

Purple paint means no trespassing, but that means on land. It is kinda hard to paint water purple.

Anyway the laws were written years ago, I think to keep water from being monopolized.

[CMAC]

What happens if it fades to pink?

[gonefishin]

What happens if it fades to pink?

Then you have to make a donation to the breast cancer awareness foundation.

[Crippled Caddis]

Terry wrote:

<The laws are gray and confusing in many cases, but the stream in question (in the states of Arkansas and Missouri anyway) have to be deemed "navigable" by the courts or government entity. I'm not sure which entity does that, but that is what is indicated.>

Gavin wrote:

<Navigability really doesnt have much to do with it because most of our float streams have a well documented history of public use>

gonefishin wrote:

<Anyway the laws were written years ago, I think to keep water from being monopolized.>

The law concerning navigability being the criteria for 'public waters' originated at a period of the early history of the nation when the waterways were the routes of commerce since there WAS no road system. Commerce being considered the lifeblood of a society the laws concerning the use of waterways were promulgated to prevent property owners from denying access or charging tolls. Under the principle of 'original intent' in the interpretation of law any waterway that has been used for commercial purposes in the past should pass muster in court as a navigable waterway. Please note the 'should' since original intent is more and more ignored in the current era by jurists pursuing a personal political agenda.

In the Ozarks where tie-hacking was a way of life in the off-season for many subsistance farmers as well as others many seasonal streams were used to get their ties to market. Even where there was no stream with a year-round flow sufficient to float the ties they were often stacked on a high bank above a seasonal stream. When late Winter or Spring rains caused the stream to rise the hackers took advantage of it to knock the key log out from under their stacked ties so that they would tumble into the fllooded creek. They then followed them to market.

Tie-hacking was so common in many parts of the Ozark Plateau that many marginal streams were used as commercial routes. A bit of research with local historical societies might turn up some interesting information if you find yourself charged with trespass.

[gonefishin]

CC: I didn't go into the detail that you did but you are 100% correct. Out west a person could tie up the water holes and control 1000's if not 10000's of acres of land without ever purchasing it. After all what good is land without water? It also kept people from damming up small streams and selling the water for extortion prices as well as lock up all the natural resources from fish and wildlife to logs or gravel.

[fishinwrench]

I've brought this up several times in similar discussions. The other "WRITTEN LAW" describing private vs. public water, aside from the "navigable" term.... are the words "used for commerce".

That can mean: used to float logs down, used as a city water supply, dredged for gravel...ect.

[Al Agnew]

Just to clarify navigability a little more...

Navigable rivers, under Missouri (and I think Arkansas) law, are clearly designated, and actually include ONLY the Missouri, Mississippi, and short stretches of a couple of other big rivers that are or have been in the past commonly used by commercial river craft like barges. NONE of the floatable Ozark streams are navigable as that term is defined by law. The difference between navigable and non-navigable streams is not so much in how much of a right the public has to use them (although the public has that right on navigable streams), but in the ownership of the land around and under them. The public owns the land below the normal bank line of navigable streams. The public does NOT own that land on non-navigable streams...the landowner owns that land, including the actual stream bottom.

That's why I termed it "floatable" rather than navigable. As the result of a number of court cases, the right of the public to use the floatable streams has been established in AR and MO. The usual standards for determining public rights to these streams have to do with whether they were ever commonly used for commerce (floating logs to market is the example of commerce usually given) and also whether the public has traditionally used them for floating and fishing. So as you can see, once you get past the better known float streams and into smaller, marginally floatable creeks, the law gets real gray. Gavin's example of the wealthy landowner on the Osage Fork is right on. That stretch of the Osage Fork IS big enough to float and has been floated a lot in the past (before that landowner acquired the land), and it has also almost certainly been used in the past for floating logs to market. But because of the power and influence of that landowner, it is all but closed to the public, and it will take a court case going farther than the county court to settle the matter.

What makes this whole thing so sticky is that nobody knows for sure how such court cases will go in the future, and everybody is a little afraid to bring a case, because if it goes against them it sets more precedent. If it goes against the public right, the public is liable to lose the right to float and fish not only the particular stretch of stream decided by that case, but also any other similar stream stretches. Likewise for the landowners if it goes the other way.

I have mixed feelings about this whole thing. On the one hand, it's good to have stream stretches that are protected from overfishing. On the other hand, I don't want to be run off a stream I've legally accessed in my canoe. I float a lot of small streams that are not usually floated and not generally considered floatable.

[gonefishin]

Just to clarify navigability a little more...

Navigable rivers, under Missouri (and I think Arkansas) law, are clearly designated, and actually include ONLY the Missouri, Mississippi, and short stretches of a couple of other big rivers that are or have been in the past commonly used by commercial river craft like barges. NONE of the floatable Ozark streams are navigable as that term is defined by law. The difference between navigable and non-navigable streams is not so much in how much of a right the public has to use them (although the public has that right on navigable streams), but in the ownership of the land around and under them. The public owns the land below the normal bank line of navigable streams. The public does NOT own that land on non-navigable streams...the landowner owns that land, including the actual stream bottom.

I would take it then that most float trips, unless confined to state land, are trespassing unless they have specific permission from the adjacent land owners? Lakes are certainly not the Mississippi or Missouri rivers so by your definition of the law the adjacent land owners would also own the lakes because the weren't around back then so they were never used by barges and for commercial travel. How would you deal with those issues?

[jdmidwest]

Historically, most Ozark streams have floated barges of logs. 2 logs tied together makes a old time barge. They still float barges created tying 2 canoes together to make a barge to sit on top with their lawn chairs. I have seen it and watched them get trashed by a sweeper on a riffle. I can float a kayak in 6 inches of water so most streams are navigable to me. And, historically, the stream flows of all Mo stream are lower than they are now, so all of the previous could have occurred in the past by others.

[Al Agnew]

Nope, Gone...like I said, court cases have established the public's right to float and fish and swim, etc. in the float streams, even though they aren't navigable. Technically, you'd be trespassing if you touched the bottom of any of these streams, if it wasn't for the court cases giving you the right to do so. The big lakes and the land under them are owned by the Corps of Engineers (except for Lake of the Ozarks and a few others), and technically again, such owners COULD keep you off the bottoms of them, except that it's obvious that such action wouldn't stand up in a court of law because of Congressional action or agreements between the owners and the state.

Thing is, when it comes to the float streams, there is no state statute saying the public can use them, nor is there any list of floatable/recreationally navigable streams. So there is no specific law that says you can be on them. It's all a matter of court cases deciding, in the absence of such laws, that you can. It isn't like that in all states. You don't have the same rights in Illinois as you do in MO. And in Virginia, some sections of streams have been closed to fishing even though you can float them as long as you don't touch the bottom or banks. You see, land grants given by the king of England before the United States came into being gave the landowners along these rivers the exclusive fishing rights, and unbelievably, recent court cases have upheld those grants. On one stream, there was a well-established guiding business which had been operating for many years, floating clients through that stretch and trout fishing. Then a landowner actually read the old land grant, and sued to stop all public fishing on a large stretch where he owned both banks and the bottom...and won.