Legal Tresspassing Issue

[Deezel]

This is in New York:

The other day I was wading in a river and near a bridge. There were two gentlemen on the bridge and we got into a discussion about wading and legal issues. It seems as though the land on one side of the river is posted by the owner. Okay, so I know no one is allowed to cross his land in order to get to the river. However, these gentlemen said that the owner claims to own the property 1/2 way into the river, that includes the river bottom, and you are not allowed to wade on his side! Now I don't know if this river is considered as 'navigable' or not and don'tknow if that matters. This is the first time I've heard about this type of law. I know that there are places on the Salmon River, the Willowemoc and a few others that has a separate ruling, but these are because the property on both sides of the river are owned by the same landowner. On other rivers I've fished, like the branches and main stem of the Delaware, the Beaverkill, Willow, Neversink, Conhocton, Genny and others, I've always thought that wading is permitted up to the 'high water mark'.

So, do any of you KNOW the facts about this? Can you reference and cite the specific ruling or regulation. I'd like to be able to respond to this landowner because I'd like to fish there again and would like to know what I'm getting into or maybe should stay out of.

Thanks.

Deezel

[MTSkibum]

new york does not have the high water mark law, i thought it was pretty much just montana. PA has a weeker version of the high water mark law.

[Oregonian]

This is (& will continue to be) an on going debate with "landowners" vs. river users.
There is an organization out here (Oregon) called COMMON WATERS. In an effort to try to educate the, one way to explain why their deed may say they own to the middle of the river or to high water level, is to compare it to a homeowner in an urban area whose deed covers the sidewalk or to the middle of the road. That homeowner is responsibile for that property, pays taxes on that property but CAN NOT put up a toll booth or in any way restrict traffic.
To get past the "I OWN THIS" mentality is difficult.... but must be accomplished.
later,
an Oregonian

[Jeremy]

Deezel,

If this were me I'd get to the NY DNR and get a copy of the by-laws in your state pertaining to stream access. Don't believe what someone else posts..it might cost you.

If nothing else, go knock on the door of said owner and request his permission to allow you access.

Jeremy.

[dudley]

I was just in a similar discussion on another site....

There's this:
F A R R E L L F R I T Z, P . C .


And this:

New York courts have long upheld the principle stated in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). In this landmark case, the Supreme Court held that the state cannot divest itself of its public trust interest. The court said that the state's title to underwater land:
. . . is a title different in character from that which the state holds in lands intended for sale . . . It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.
Rivers whose bed and banks are in private ownership may also provide opportunities for public use, including incidental portage on riparian lands, if they are navigable-in-fact. The ability of a river to accommodate recreational uses, such as canoeing and kayaking, can establish that a river is navigable-in-fact, Adirondack League Club v. Sierra Club, 92 N.Y. 2d 591 (1998 )

[Bamboozle]

PA has a weeker version of the high water mark law.

Not exactly; in PA only the waterways on the ancient and outdated "navigable" list allow unimpeded wading. If the steam isn't on that list, (and most aren't) and one or more landowners own the adjacent property; that property will include the stream bottom. As a result the land AND waterway can be posted and closed on private property and may also be closed on public property like tail waters or streams on municipal golf courses and the like if the pubic entity chooses to do so.

The infamous Little Juniata case was a successful legal challenge of a closed private section based on the river's inclusion on the navigable list.

NY may be similar.

[mdram]

if you happen to know a surveyor or have access to propery maps and deeds, avaialbe at the courthouse, you can see wher ehis property line goes too.

also check this out
http://www.olemiss.edu/orgs/SGLC/Nat.../3.2barges.htm

[Joe Valencic]

new york does not have the high water mark law, i thought it was pretty much just montana. PA has a weeker version of the high water mark law.

Michigan has a high water mark access law, but it is only if you cannot safely wade the stream. You are permitted to leave the stream and walk around any unsafe condition, staying within the high water mark, but must immediately reenter the stream where it is safe to wade. This was in their state charter when the state was formed.

Ohio does not allow for any trespass on the stream bottom (landowner owns the land under water), but you may boat/float on any navigable stream as long as you do not set foot on the stream bottom private property. The lawmakers in Ohio side with the landowner in these cases when brought to court, despite the federal statute to hold these lands in the public trust, and it will probably not change in our lifetime. As long as the campaign monies from wealthy landowners along these prime waterways flow to the politicians and judges, it will not change. Money talks!

Check the state charter for each state to see how this works, as each state is somewhat different.

Joe

[jeffnles1]

To make matters even worse, some streams are stocked by the state fish and wildlife folks. No issue there, good fishing right? Not so fast, the landowners along these streams have their property posted with no stream access. This amounts to me providing funding through my fishing license purchase for someone else's private fishing reserve.

I don't mind a landowner protecting his property, but I see no reason the state should be obligated to use public funds to stock fish in private waters.

Jeff

[dudley]

I use stock trout for the state of Connecticut.
We would never put fish in posted water.