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

[BilletHead]

7 minutes ago, tjm said:

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. 

              I never said we should camp or trespass on private property just float through. There are places on larger rivers where you can camp. A big no on launching without permission through private property.  

[tjm]

37 minutes ago, BilletHead said:

I never said we should camp or trespass on private property just float through. There are places on larger rivers where you can camp. A big no on launching without permission through private property.  

My use of your quote was only about ownership. Most Mo. riparian landowners do own the stream bottoms. 

I wasn't addressing anything that you said about camping, or passing through, just the whole notion that because some may have used the property prior to private ownership that it should mean that it can always be used by others. Just floating through is very much like just walking through. So if it makes shortcut to the store for Bob to walk through Bill's yard he should? I think that in UK many private lands are open to hiking through, based on historical foot paths in a similar manner to the case law allowing commercial use of streams was applied in the 19th century USA,  my thought is that we have 20th century case law based on simple possibility rather than actual historical use and that we have extended that right of commercial use  to apply to  recreational use. Because semi-trucks use highways for commerce kids should be allowed to use them for skateboarding?  

I do believe that if we can legally camp on a gravel bar on a larger stream then that also allows us to camp on a gravel bar on any stream that we are allowed to float through. According to most, I think that means any stream that can float a tube during high water.

I think it's remarkable that we don't have many more floater-owner conflicts than we do.  

[Al Agnew]

9 hours ago, tjm said:

My use of your quote was only about ownership. Most Mo. riparian landowners do own the stream bottoms. 

I wasn't addressing anything that you said about camping, or passing through, just the whole notion that because some may have used the property prior to private ownership that it should mean that it can always be used by others. Just floating through is very much like just walking through. So if it makes shortcut to the store for Bob to walk through Bill's yard he should? I think that in UK many private lands are open to hiking through, based on historical foot paths in a similar manner to the case law allowing commercial use of streams was applied in the 19th century USA,  my thought is that we have 20th century case law based on simple possibility rather than actual historical use and that we have extended that right of commercial use  to apply to  recreational use. Because semi-trucks use highways for commerce kids should be allowed to use them for skateboarding?  

I do believe that if we can legally camp on a gravel bar on a larger stream then that also allows us to camp on a gravel bar on any stream that we are allowed to float through. According to most, I think that means any stream that can float a tube during high water.

I think it's remarkable that we don't have many more floater-owner conflicts than we do.  

Legal scholars HAVE studied Elder v Delcour and thought the reasoning behind the decision was interesting, to say the least.  However, there IS a difference between having the right to float floatable rivers, and having the right to walk across someone's lawn because it's a shortcut.  The difference is that the WATER doesn't belong to the landowner, nor do the fish in that water.  You are probably right that the decision was in part a product of its time.  At the time, there had been a long and time-honored tradition of guided multiday floatfishing trips on Ozark streams, ever since the late 1800s. It was source of revenue for some rural areas.  This was before the huge boom in canoe rentals and later huge campgrounds with kayaks, rafts, and tubes to offer, but there were still quite a few people making money off tourist anglers.  The court most likely was uncomfortable with curtailing this by ruling that it was illegal to picnic and camp on gravel bars, since traditionally gravel bar camping was a huge part of the float trip.  So they found a legal way to make it okay.

However, you are probably wrong on equating a stream that can float a tube in high water with streams covered by Elder V Delcour.  It specifically mentioned small boats, not inner tubes, and included the wording "the stream bed, gravel bars and clearly recognizable area over which the stream flows during its normal stages."  It also said that the Meramec River in question had long been a popular fishing stream.

What it really boils down to is that the public has what amounts to an easement to use that part of the landowner's property.  A better analogy would be sidewalks in suburban areas.  The lot owner usually owns the land under the sidewalk, out to the curb (and is responsible for mowing the strip of grass if there is one between the sidewalk and curb, or was where I grew up).  But the public has the right to walk on the sidewalk.

And rural economics STILL is important in this situation.  If suddenly the gravel bars on the popular float streams were ruled to be off limits to floaters, it would probably spell the death of all the canoe and kayak liveries. You don't see such liveries in states where floaters can't touch the bottom or bank; all you see is guided fishing floats on those waters.  Because the conflicts between river users and landowners would be a complete mess otherwise.

As a river landowner myself, I have no problem with the public being able to use "my" gravel bars; because I bought the land with my eyes wide open, knowing I'd have to put up with public use.

[WestCentralFisher]

I think part of the reason there aren't more conflicts is because the float trip culture is so ingrained, and has been for a long time on so many of our rivers. On the really popular streams especially, while landowners may not be able to cite the ruling, they intuitively know people are allowed to stop on gravel bars or get out and fish. If you see 100 people do something every day all summer, it's pretty hard to call the police on the 101st. I also know this type of awareness is much less on less popular float streams with no rentals, and even less yet north of the Ozarks. 

I've had exactly one person tell me I needed to leave a popular Ozark float stream. I was wade fishing across from a private campground on the Niangua (having entered from a very popular public access) and a guest of the campground told me that this section of river was private and I couldn't be there. It was pretty humorous. It was on a weekday, and as I remember either spring or fall, so I guess he hadn't seen anyone go by, and assumed it was his own private stretch of river for the duration of his stay. He also told me it was fly fishing only. 

I kind of felt for him. I got the distinct impression he thought he'd rented his own private beat of a trout stream and instead got the Big Niangua. It's a fine trout stream for what it is, but I'm not sure I can readily imagine a less private setting to catch trout in.