Fishermen/Landowner rights on rivers and streams

Discussion in 'General Conversation' started by Jamey, Mar 17, 2006.

  1. Jamey

    Jamey New Member

    Messages:
    138
    State:
    Pegram, Tennessee
    A test case is cast on Wolf
    By Tom Charlier
    Contact
    February 6, 2006

    MOSCOW, Tenn. -- It was supposed to have been a relaxing fishing trip on the Wolf River, but all Bob Alkema came away with was one little crappie and one trophy-sized headache.

    Returning to the public boat ramp from which they'd launched last spring, Alkema and his son found a state wildlife officer and private landowner waiting for them. They received a citation for fishing without permission on the owner's property.

    Alkema says he was stunned.

    "When you're on the water, nobody owns the water," the Collierville resident said.

    Turns out, that isn't necessarily so.

    In a property-rights battle that could have statewide implications, a former Memphis businessman has been prosecuting boaters who fish in a swath of Wolf River backwater within his property lines.

    Following a series of citations last spring, three more cases go to court this week.

    The issue is attracting wide attention because it centers on a chronically flooded area adjacent to the Ghost River State Natural Area and Wolf River Wildlife Management Area -- two scenic and bountiful sites popular among Memphis-area canoeists and other outdoor enthusiasts. It is accessible by public boat ramps both upstream and downstream.

    "This is a much broader issue than just one little spot on the Wolf River," said W. David Smith, secretary-treasurer of the Fayette County Rod & Gun Club, whose members have been among those ticketed.

    Statewide groups have taken notice, as well.

    "We have great concern that in a public waterway, a private landowner can restrict access to a public resource, such as a fishery," said Mike Butler, executive director of the Tennessee Wildlife Federation.

    The landowner prosecuting the trespassers is Bobby Pidgeon, former president of the Coca-Cola Bottling Co. operation in Memphis that his family owned for generations.

    Property records show he and his trust own seven tracts in the area totaling nearly 1,900 acres and appraised at $3.93 million.

    Along a stretch of the Wolf between Moscow and LaGrange, Tenn., less than 50 miles east of Memphis, Pidgeon has posted his property line with blue paint on trees and orange signs reading "Posted and Patrolled."

    Pidgeon's property line extends to the river's original north bank. But in the years since the tract was laid out, sediment pouring in from tributaries has clogged the Wolf, transforming it into a broad swamp reminiscent of the Okefenokee.

    Pidgeon's property encompasses about 144 acres of water along the north side of the river.

    Efforts to contact Pidgeon were unsuccessful, but his attorney, Scott F. May, said no one has the right to fish within his client's property without permission.

    "It's his property. He pays taxes on it," May said. "He doesn't see any reason why someone should go on his property without his permission."

    That's especially true given that the state natural area and state wildlife area lie adjacent to Pidgeon's property, he said.

    "There's 6,000-7,000 acres of state land that wraps around Mr. Pidgeon's land," May said. "It's not like the public doesn't have anyplace to go."

    The issue pits riparian rights -- the claims of a landowner along a stream -- against the rights of the public to use a waterway.

    Tennessee law divides navigable waterways into two main categories. Streams large enough to convey commerce upstream and downstream during normal water levels are considered navigable in the legal or technical sense. Along those waterways, the stream and its bed are held in trust for the public by the state.

    But along waterways that are navigable in the ordinary or common sense -- meaning they can float boats but not commercial vessels -- the riparian landowners own the bed to the center line of the stream. However, the public has an easement to navigate the waterway.

    Neither the property owner nor the waterway users should "unreasonably interfere with" or obstruct one another, court rulings have held.

    In a 1980 opinion dealing with another Tennessee stream, then-state Atty. Gen. William M. Leech Jr. said that along any navigable waterway, adjoining property owners "may not impede commerce or prohibit reasonable public use of the waterway."

    May said that even though Pidgeon could claim ownership to the centerline of the Wolf, the boaters he's prosecuted have ventured 100-250 yards off the main channel into his acreage.

    Tennessee Wildlife Resources Agency officials, who issue the citations, say fishermen have no right to use Pidgeon's acreage.

    "If they get off the WMA (state wildlife management area) and onto his property, even though it's under water, they're fishing without permission," said Ronnie Shannon, the agency's area law-enforcement supervisor.

    Fayette County General Sessions Judge William Rhea ruled last June that the fishermen charged in the case were "well beyond the questionable area" and on Pidgeon's property.

    Fishing without permission is a Class C misdemeanor, punishable by a fine up to $50, or up to 30 days in jail, or both.

    Rhea dismissed the initial cases, in part, because Pidgeon at that time hadn't adequately posted his property. But he warned fishermen they need to "steer clear" of the owner's property.

    "There's an abundance of other places to fish right along this area," Rhea noted.

    Smith, however, said that interpretation of the law would allow property owners along other Tennessee streams to prohibit trout fishermen from wading in front of their land.

    Alkema, one of those whose case was dismissed, can't understand the prosecutions.

    "This is the only place in the United States that I've heard that you could not stay on water that you accessed publicly," he said.
     
  2. Doyle

    Doyle New Member

    Messages:
    582
    State:
    Illinois
    I hope there’s some organization which will put up the money to help one of the guys being arrested to fight this with a very good lawyer. I think it’s terrible when people with money can walk on the small guy. Sure they can buy good hunting land and post it. Lets try to keep them from owning the rivers too.
     

  3. Gator

    Gator New Member

    Messages:
    1,116
    State:
    Ludowici GA
    Well it is not the only place here in Georgia landowners can have you put in jail for it also. If you ask me that sucks big time because if you on the river in a boat how do you know where the lines are?
     
  4. zappaf19

    zappaf19 New Member

    Messages:
    1,574
    State:
    Monticello,IN
    Man that guy is a BUTT!
    Bill
     
  5. Phil Washburn

    Phil Washburn New Member

    Messages:
    7,680
    State:
    Shawnee OK
    very interesting predicament Jamey. i'd rep you, but i have given too many lately.

    in oklahoma the lakes and rivers are public domain. private ownership extends only to the waters edge, as it has been explained to me.
     
  6. AwShucks

    AwShucks New Member

    Messages:
    4,532
    State:
    Guthrie, Oklaho
    Well, Phil, apparently we have not been talking to the same game wardens. The Lt. I spoke with explained it just like the case in Tennessee. They own the access to the water on their land. Stop on a roadway & fish under the bridge, they still have you because they own land to the center of the road. It is a no win situation for the fisherman unless the landlord graciously allows access.
     
  7. catfishcentral

    catfishcentral New Member

    Messages:
    1,497
    State:
    OK

    Lawrence,

    The best of my knowledge Phil is correct in saying that all creeks and rivers are public waters in Oklahoma. Now you can't cross any private land to access these public waters but any bridge built in Oklahoma is property of the state and the land that surrounds it. Now in most cases private land does comes close to the bridge but there's usually access between were the private land starts(in most cases a fence). I put my canoe in all the time off bridges here in Oklahoma and never had a problem. I don't know actually how many feet is actually is but the rivers bank is also public domain. There's a lot of high banked creeks and rivers in Oklahoma and most of the time there are not at flood stage. That small section on land is still considered the river and is Ok if you wanted to park your boat or canoe on the bank without trespassing. I've put my canoe in at many bridges and gone upstream or downstream to the next brigde to enter or exit.
     
  8. Phil Washburn

    Phil Washburn New Member

    Messages:
    7,680
    State:
    Shawnee OK
    that is correct Chris. the immediate area around bridges and roadways become state right-of-way. i don't know for how many feet either. i talked to the state DOT, wardens, and several other state officials a few years ago. they put some rip rap in the river down the road from me to stop erosion. at first they told me they were going to buy that sliver of land between the road and the river, but they wound up not doing so. had the state purchased the land, they would have given me access to the rip rap.i can still fish the area around the bridge, but there is access only on one side. i wish the state would grade and either gravel or asphault a little path to the river at all major bridges. there a few, but not many.

    the officials i talked to seemed very receptive to the idea, but they weren't the ones that made the decisions.
     
  9. AwShucks

    AwShucks New Member

    Messages:
    4,532
    State:
    Guthrie, Oklaho
    Chris, Phil, I truly hope that I am wrong. For 18 years I worked two blocks from the State Dpt. of Wildlife and I distinctly remember giving up a lunch hour to go there and get an answer to that question. I do not remember the warden's name, but I do remember he was a Lt. He stated just what I relayed. I guess Monday I can take a road trip to the city and ask again. I'll post the answer in this forum for any of our brethern who would like an answer. Not that I'm saying your wrong, but I'd be betting my wallet against something my own ears heard. lol
     
  10. AwShucks

    AwShucks New Member

    Messages:
    4,532
    State:
    Guthrie, Oklaho
    Arlington, I think the answer to that is that all land is owned. And, citizen's at times do not have access to all lands. I think the burden of proof would be on the fisherman to prove he was not trespassing than on the land owner. It is a given that you must have a land owners permission to fish or hunt on his land. It is just a sorry state that so many of them will not give anyone except family that permission.
     
  11. slimepig

    slimepig New Member

    Messages:
    666
    State:
    Kerrville Texas
    seems like if the guys property is in a stream deemed "navigable", then he should have a responsibility to post signs to let people know!
    the term navigable has really been a point of controversy as far as its definition here in texas.
    I fish from the right of way of a bridge on an unnavigable stream. have had many game wardens stop and just ask for my license, but have been told by one warden that yep im legally sitting on public property, but actually the man that owns the creek im fishin in could object to my fishing in his water. he not only owns that part of the creek, but any fish that are in that part of the creek. what a load of BS!
     
  12. Phil Washburn

    Phil Washburn New Member

    Messages:
    7,680
    State:
    Shawnee OK
    be sure and let us know, Lawrence....we have conflicting information, and that is nothing new when dealing with government now is it?
     
  13. AwShucks

    AwShucks New Member

    Messages:
    4,532
    State:
    Guthrie, Oklaho
    Chris, Phil.... I just verified my information via the State Department of Wildlife, Enforcement Division. The property owners rights extend to the centerline of the roadway, be it a county, state or federal road. You must have his permission to fish on any creek, stream or river which enters his property. If it is a navigatable river, such as the Arkansas or Red River, the state recognizes the rights of the citizens to fish the river. However, if you come ashore from the river, technically you are to have the landowners permission to fish or camp at that point. I'd say that if you were on the bank and the guy said he was the landowner and for you to leave, I'd leave. You would only be butting heads if you stayed, and the law is apparently on his side.
     
  14. Crispy Critter

    Crispy Critter New Member

    Messages:
    431
    State:
    Missouri
    This had kind of peaked my interest on the subject so I have been digging around to see what I could find out.I have heard all kinds of conflicting info and still don't know the answer but I ran across this and thought it was interesting.It's worth reading.It might not settle anything but I guess if a person had the money and time to fight it all the way to the top,I believe Federal Law trumps all local ones.
     
  15. Phil Washburn

    Phil Washburn New Member

    Messages:
    7,680
    State:
    Shawnee OK
    Dee, i appreciate that info - i will digest it later, but the first paragragh or two looks like what i thought....rep for that one buddy
     
  16. 1sporticus

    1sporticus Active Member

    Messages:
    1,006
    State:
    Iowa
    I just read the right of the public waterways that Critter linked us to. This should be required reading for all fisherman and boaters. Although I have known bits and pieces of the Fed law on waterways I had never actually read them until now. I have never been confronted by a landowner or DNR person, but it helps to be informed. What I trully liked reading was that the Fed and the State holds waterways in trust for the public.
     
  17. AwShucks

    AwShucks New Member

    Messages:
    4,532
    State:
    Guthrie, Oklaho
    The problem, as I see it, is that the State Game Warden's will still issue citations for trespassing on someone's land and it will have to go to court.
    When you finally get to court, you can show the linked article to the judge who will then ask you who your attorney is... case postponed until you have legal counsel available. Then, you finally find an attorney who will represent you for slightly less than every pig, cow and horse you own. Then, maybe, the court will say you had the right this time to be tresspassing. But, don't bet on it. The landlord is not out any expense because the state will be representing him... you are out the expense. The courts don't care... they are only concerned that you support their brotherhood by hiring an attorney... and they will string it out so the attorney will be making some money... so, lets say you win your case... tomorrow the warden will issue a citation to someone else for fishing in the very same spot you were in originally.
     
  18. Crispy Critter

    Crispy Critter New Member

    Messages:
    431
    State:
    Missouri
    I have just looked through about a thousand different pages of lawsuits and conflicting rulings trying to come up with some kind of State by State Rights to access and decided I now have a MIGRAINE,that happens when I try to think :confused:(I stopped to think one day and then forgot how to start again).

    However I did come across this and it seems to be the easiest to understand yet of what I have found.I think if we all do a little looking around and come up with something better than this it should be put up somewhere as a sticky note everyone could use as some sort of reference for their own area.It would be a good idea if we all knew just what our rights was on our own waters.It seems to vary from State to State on how they define Navigable water. I just browsed through this a little and make no claim to the truth of it's contents or any interpretation(in other words that's my legal disclaimer):D
     
  19. 1sporticus

    1sporticus Active Member

    Messages:
    1,006
    State:
    Iowa
    Sounds as if the Warden should be educated as to the right of the publics use of public land. The State/Fed are keeping waterways in trust for the public.