Legal Tresspassing Issue

FAOL Community Fly Anglers Online
1

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

2

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.

3

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

4

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.

5

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 )

6

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.

7

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/National/SandBar/3.2barges.htm

8

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

9

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

10

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

11

In Kentucky, I know of one tailwater for sure that is private property all along the fishable section and it’s all posted. You can launch a boat at a public launch several miles downstream but as for wading, no go. The state stocks it heavily.

The Little River through Townsend Tn. is heavily stocked by the state. All of the stocked part of the river is on private property and most of that is posted. Some are by hotels and campgrounds who only let their guests fish and use it as an advertising point. They are making a profit from assets provided by public funds.

I’m glad Connecticut does not stock posted water, but I know of at least two in Kentucky and Tennessee where posted water is stocked and stocked heavily. One other river in Tennessee is the Clinch tailwater. All of the tailwater flows through private property (except a church and some other semi-private points). The state stocks the Clinch heavily and except right along the dam, it is posted. Now, some landowners will not say anything unless the fisherman is being a jerk, but the fact remains, more and more of these landowners are posting the water and running fishermen off because, under Tennessee law, the landwoner owns the stream bed. However, the state continues to use money from the public sale of fishing license and trout stamps to stock what amounts to private fishing reserves for landowners.

Again, I have no issue with a landowner who wants to keep people off of his land. I do have a problem with the state taking money out of my pocket and using it to give a free private fishing reserve for that landowner.

Just my not so humble opinion.

Jeff

12

So, if the river floods into their house, can we wade in the house? Something to think about when we start ‘bad-mouthing’ land owners.
If I lived next to a river I’d be a little nervous about strangers myself.
But with that said I think the river(in it’s normal boundaries) is owned by no one.

13

The guys on the bridge are right.

Different states have different laws. Some permit wading, and fishing, up to the high water mark. NY does not. The landowner typically owns to the middle of the river, and posting his land prohibits both wading and fishing on his side of midstream.

If both sides were privately owned and posted, you couldn’t wade or fish at all. Navigability is generally not relevant, as NY courts have ruled that the right to navigate does not give you the right to fish in non-tidal waters.

It is not a separate ruling when the same landowner owns both sides of the river. The landowner owns to midstream and can post to midstream. If both banks are posted, it does not matter whether it is the same owner or different owners.

http://www.law.cornell.edu/nyctap/comments/i97_0009.htm

Douglaston Manor, Inc. v. Bahrakis, 89 N.Y.2d 472 (Feb. 11, 1997).

FISHING RIGHTS - NAVIGABLE-IN-FACT - NAVIGABLE-IN-LAW - TIDAL - PUBLIC TRUST - EASEMENT - NAVIGATIONAL SERVITUDE

THE NAVIGATIONAL SERVITUDE RETAINED BY NEW YORK OVER NON-TIDAL NAVIGABLE-IN-FACT WATERS IS NOT EQUIVALENT TO A PUBLIC TRUST INTEREST, AND DOES NOT PRECLUDE POSSESSION OF EXCLUSIVE FISHING RIGHTS BY PRIVATE OWNERS OF THE LAND IN QUESTION.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

Plaintiff owns approximately one-mile long strips of both banks of the Salmon River in Oswego County and the riverbed between these two strips. Defendants anchored their boats and fished within this portion of river. Plaintiff contends that it has exclusive fishing rights in its own property.

Plaintiff sued in trespass for both compensatory and punitive damages as well as injunctive relief. Defendants counter-claimed for nuisance and intentional interference with business relations. Plaintiff moved for partial summary judgment on its trespass claim. Defendants cross-moved for partial summary judgment. The New York Supreme Court granted Plaintiff’s motion and held that Defendants knowingly trespassed onto Plaintiff’s property. The court held that the public right of navigation in a navigable-in-fact river, such as the Salmon River, does not include a public right to anchor and fish. The Appellate Division dismissed Plaintiff’s complaint and held that the public has the right to fish, ferry, and transport on navigable waters of the Salmon River.
ISSUE & DISPOSITION

Issue

Whether ownership of a riverbed in non-tidal navigable-in-fact waters entitles the owner to exclude the public from fishing in the effected portion of the river.
Disposition

Yes. The New York Court of Appeals reversed the Appellate Division and reinstated the order of the supreme court, holding that the public may be excluded from fishing in the privately-owned portion of a riverbed.

14

I’m not badmouthing the landowners at all. I’m not sure I’d want strangers on my property either.

I am being critical of the state for using public funds to stock fish in non-public water and create private fishing reserves for landowners with money from sale of fishing license.

The rule should be simple, if the stream is not accessable to the public, no state funds are used to stock it.

Again, nothing against landowners. They have every right in the world to control who enters onto their property.

As for wading in their house in a flood, well, we kind of already do that. How many times has federal money been used to clean up after floods? That is kind of like wading in their house.

I didn’t want to start a “us vs. them” kind of conversation as I have no issue with landowners posting their property. It’s about fair use of public funds.

Jeff

15

Jeff, In Ky , if a road crosses a stream you can access the water from the road right of way legally. Just go from the right of way into the water.

Mark

16

Mark,
Yes, but the landowner owns the streambed. If both sides of the stream are on private property, you’re not fishing anywhere except in the right of way for that bridge.

Fortunately, in most of the bluegill and smallmouth streams, the landowners don’t mind fly fishermen wading the streams and will typically just wave or ask if you’re doing any good.

On the stocked trout waters, it’s different and more and more are posting their property.

Again, no issue at all with the posting of property. I just question the continued state funded stocking of the water.

Jeff

17

The public has the right to canoe, fish, ice skate, snowmobile, wade and otherwise enjoy Wisconsin?s navigable waters as long as they ?keep their feet wet? to avoid trespassing and as long as they can access the water legally from a public road or boat landing.

People using Wisconsin waterways generally must follow the ?keep your feet wet? rule created by the Wisconsin Supreme Court. Members of the public may use any exposed shore area of a stream or river without the permission of the riparian landowner only if it is necessary to exit the body of water to bypass an obstruction. Obstructions may include trees or rocks, shallow water for boaters or deep water for wading trout fishers. The bypass can involve areas up to the ordinary high water mark (OHWM), the point on the bank or shore where the water is present often enough to leave a distinct wear mark indicated by erosion or destruction of or change in vegetation.

Navigability

Navigability determines whether a water is public or private. Navigable streams are public waters. Because navigable waters are public, they may be used for fishing, provided public access is available, or you have permission of the landowner to cross their property to reach the water

18

This has always been an intriguing topic to me. You can find plenty of claim that this is an issue of the Public Trust Doctrine and part of US common law. Under that argument (as I understand it), the land under navigable waterways is held in the public trust by the states and cannot be deeded to anyone. As I’ve tried to check into it here in KY, it’s disturbing how much confusion there is among the agencies that you would think would know the issue - attorney general’s office, Fish & Wildlife, etc.

Jeff-

Curious as to which tailwater you’re thinking of. It’s not the Big C is it? In many years of fishing there, I only had one strange incident where a woman rode down on her ATV to gripe about what she thought some other fly fishers had done, and in the process mentioned that she “owned” the state boat ramp we were standing on, the corresponding parking lot and that section of the river. That’s what prompted the calls mentioned above, after which the KDFWR guy checked into it and called me back to say that there was no private ownership of rivers, but there was of creeks. (Huh?)

19

The law varies by state. Here in Iowa the bottom of even quite large rivers is owned by the land owners that own the banks. You can legally float the river (the water is owned by the state) but you are not allowed to set foot outside of the boat. I have had it explained by our state paddling group that a few other states have the same rules. Strange and wonderful laws.

David

20

John,
Dix river below Herrington lake. Only way to fish that is by boat launch way downstream and motor up. Too long of a canoe paddle to make it worthwhile. Yet, the state stocks the heck out of that area.

Mainly, I fish the warmwater streams and have rarely had any issue assuming I can get in the water from a legal access point. Most land owners just wave and ask if I’m doing any good and a few just shake their head at a guy with a fly rod catching those little sunfish out of the creek. I think they think that I’ve lost my mind (which is about accurate).

Jeff