Navigable Waters, Dams, and Trespassing? How does it work?

[tjm]

I don't think that I've read about trappers exploring the Ozarks in canoes, I'd always thought it was miners that opened this area up, but I never really studied local history either.  

[BilletHead]

 I have not either but we both know that they were. The first nations people (Natives) did use the streams and rivers for trading and travel that is for sure. Much easier to paddle a dugout than to travel through the bush from place to place plus all people's lived by water sources. This is a fact I know villages are on big rivers where they intersect with smaller rivers. Then in the smaller rivers villages are again at a intersection of a big creek, then another village on the big creek by a small creek. So on and so forth. These people had to have water. Water is where it is and that is where they will be. Water is life. Water was the interstate,then highways, then secondary roads, then dirt roads and trails to us. IMO for what it's worth water is a travel system and a trade route. Modern man changed that. 

[Al Agnew]

Guys, it doesn't really matter whether logs were floated or other kinds of commerce were done on these streams.  The court mentioned those things, but did not make their ruling based upon them.  Basically, all it really said was that IF the stream is floatable in small boats, then the public has the right to float it and otherwise use it.  Further court cases or rulings by the state attorney general have determined that some other stream sections fall under it, but not all have been ruled upon.

[jdmidwest]

4 hours ago, BilletHead said:

 I have not either but we both know that they were. The first nations people (Natives) did use the streams and rivers for trading and travel that is for sure. Much easier to paddle a dugout than to travel through the bush from place to place plus all people's lived by water sources. This is a fact I know villages are on big rivers where they intersect with smaller rivers. Then in the smaller rivers villages are again at a intersection of a big creek, then another village on the big creek by a small creek. So on and so forth. These people had to have water. Water is where it is and that is where they will be. Water is life. Water was the interstate,then highways, then secondary roads, then dirt roads and trails to us. IMO for what it's worth water is a travel system and a trade route. Modern man changed that. 

I know for a fact the little creek I live on was used for commerce many years before my family settled it back in the early 1800's.  Indian mounds along a slough that was an old creek bed proved that Native Americans used it as a camp.  It was a resting spot, or hunting ground for some reason.  I can't float a kayak and a person this time of year down it, but 300 years ago it may have been more.

[WestCentralFisher]

I don't have much to add to this discussion, but a number of years ago, I went on a long, winding trip out west, largely on the border of Montana and Wyoming. Montana's access laws are quite permissive. While I'm sure there's places where following the law to the letter might get you in a tight spot, it's fairly well acknowledged, and I never ran into any issues. 

But when I crossed into Wyoming, I had to actively remind myself of where I was. Their access laws are quite restrictive. And the landowners seem to on average be pretty serious about it. 

This came into focus one time on a pretty brook trout stream in the north-central part of the state. A lot of the stream was on forest service ground, but the campground host had warned us not to wade too far down, because the adjacent landowners did not like people fishing on their property. OK, fine. It was marked well enough, there was plenty to fish upstream, no problem. I had no intention of going past the marker. 

It only got weird once. I was fishing the last good pool above the property line. I sort of sensed some movement downstream on the hill above the creek, which you're on guard for, because this place is filled to the brim with large animals that can hurt you. But I never made out what it was, if anything. 

Then I got out of the water and started heading towards camp. As soon as I get out, there's a guy standing on the bank, startling the living hell out of me. He said "Some good fish you caught there. That last one was especially nice." I'd been releasing the fish, so that was strange. After talking a bit, he basically admitted he'd been perched on the hillside watching me the whole time to see if I'd cross the line. I sort of got the sense he was disappointed that I had not. 

[snagged in outlet 3]

1 hour ago, WestCentralFisher said:

I don't have much to add to this discussion

I'd hate to see how long the story would be if you DID have something to add....😆

[BilletHead]

2 hours ago, WestCentralFisher said:

I don't have much to add to this discussion, but a number of years ago, I went on a long, winding trip out west, largely on the border of Montana and Wyoming. Montana's access laws are quite permissive. While I'm sure there's places where following the law to the letter might get you in a tight spot, it's fairly well acknowledged, and I never ran into any issues. 

But when I crossed into Wyoming, I had to actively remind myself of where I was. Their access laws are quite restrictive. And the landowners seem to on average be pretty serious about it. 

This came into focus one time on a pretty brook trout stream in the north-central part of the state. A lot of the stream was on forest service ground, but the campground host had warned us not to wade too far down, because the adjacent landowners did not like people fishing on their property. OK, fine. It was marked well enough, there was plenty to fish upstream, no problem. I had no intention of going past the marker. 

It only got weird once. I was fishing the last good pool above the property line. I sort of sensed some movement downstream on the hill above the creek, which you're on guard for, because this place is filled to the brim with large animals that can hurt you. But I never made out what it was, if anything. 

Then I got out of the water and started heading towards camp. As soon as I get out, there's a guy standing on the bank, startling the living hell out of me. He said "Some good fish you caught there. That last one was especially nice." I'd been releasing the fish, so that was strange. After talking a bit, he basically admitted he'd been perched on the hillside watching me the whole time to see if I'd cross the line. I sort of got the sense he was disappointed that I had not. 

            In Wyoming you cannot even drop anchor.  Those residents own the bottom of that stream. 

[WestCentralFisher]

19 minutes ago, BilletHead said:

            In Wyoming you cannot even drop anchor.  Those residents own the bottom of that stream. 

Yup. 

[WestCentralFisher]

1 hour ago, snagged in outlet 3 said:

I'd hate to see how long the story would be if you DID have something to add....😆

Fair, I suppose 😆. 

I tend to be of the opinion that any halfway decent fishing story needs room to breathe and is best not rushed. If this qualifies as one of those is an entirely open question, however. 

[tjm]

2 minutes ago, BilletHead said:

Those residents own the bottom of that stream. 

So do most in MO.

Stream bottoms are taxed at the same rate as cropland in Mo.  It's just a difference in laws as to how much control owners have over their property.  Although I enjoy using other's stream bottoms as we are allowed to here, it's the same as the state allowing me to camp out in other people's yards just because it may have been the site of a trapper's camp or that of a native. It's obvious that historically everyone's yard was open to travel and camping by all who wanted to. And no doubt some yards did have walking paths cross them and no doubt some were the site of camps, so if the presumption of prior use that we apply to streams were applied to other real estate, every yard would need open gates. And there would be no gated communities either, because you can be sure that those areas had traffic of some sort way back in history. 

I have wondered if the  Elder v Delcour were taken to a higher court if it would have stood up or if it had been tried at any other time period if it would have had a different outcome. It seems almost to have been scripted from beginning to end as though all involved collaborated.  Declaring that a  commercial thoroughfare is open to recreation use by floaters and fishers is kinda like saying that we are entitled to ride bicycles and roller-skates on the interstates.   Not really a logical jump.