River Trespassing question.

Discussion in 'MISSOURI RIVERS TALK' started by rush_60, Oct 13, 2009.

  1. rush_60

    rush_60 New Member

    Messages:
    1,719
    State:
    Troy, KS
    I just moved to MO from KS. Whats are the trespassing laws in MO for the little rivers and streams? In Ks you have to have permission from the landowners on both sides of the river unless its navigable. KS only has 3 navigable rivers.
     
    Last edited: Oct 13, 2009
  2. DoubleD

    DoubleD New Member

    Messages:
    63
    State:
    MO
    From the Missouri Department of Conservations , Missouri Conservationist, October 1984

    What about fishing Missouri’s rivers and streams?

    Public use of Missouri’s float streams often causes conflict with private landowners. Public
    access to Missouri’s streams has been controlled since 1954 by Elder v. Delcour, a case decided by
    the Missouri Supreme Court. Navigable rivers and streams are open to all legal use by the public and
    fall under the control and jurisdiction of the federal government. Case law defines a navigable river
    as “one that as a matter of fact is susceptible of being used in its ordinary condition, as a highway for
    commerce over which trade and travel are or may be conducted in customary fashion.” (Sneed v.
    Weber, 307 S. W.2d68, and Elder v. Delcour, 269 S. W.2d17).

    In the Elder v. Delcour case, the Missouri Supreme Court concluded that a public fishing right
    exists upon Missouri’s small, floatable streams. The court ruled that since the ownership of the fish
    in the stream is vested in the public, the public has a right to fish and to take fish from the streams in a
    legal manner. The court ruling held that persons floating or wading in the upper Meramec River,
    following legal entry into that stream, were not trespassing.

    The Elder case has been accepted as precedent throughout the state and represents the controlling
    authority concerning public use of Missouri rivers and streams. Continued lawful and ethical use of
    Missouri’s waterways will help ensure that right for future Missourians.

    What are the rights of landowners?

    Private landowners should and do have the right to allow, limit or stop public use of their
    property. No one can force private landowners to allow the public to use their land. A common
    misunderstanding about the Conservation Department’s fish-stocking program is that pond owners
    must allow public fishing. This is not true. The Department asks that pond owners allow a
    reasonable amount of fishing but cannot require anyone to open his land to the public.

    Landowners posting their land with signs that say “Hunting by Permission Only” seem to
    experience a better relationship with sportsmen. The landowner still retains the right to refuse access
    to the public, but the signs don’t seem as susceptible to vandalism.

    Private landowners have the right to prosecute trespassers. Conservation agents cannot simply
    arrest someone for trespassing. A private landowner must sign a complaint. Some landowners are
    reluctant to prosecute trespassing friends or neighbors, and others are afraid of retaliation if they
    decide to prosecute. Instances of retaliation are rare in Missouri. NO one can tell a private
    landowner to prosecute, but landowners who prosecute seem to have fewer trespass problems.

    In some instances, trespass is a major problem for landowners and sportsmen, but it doesn’t
    appear that way in the court system. Only 192 people were prosecuted in 1983 for trespass while
    hunting or fishing. That’s fewer than two cases per county statewide. Total trespass fines were
    $7,678. All fine money from fish and games cases goes to the state’s public school system.

    Trespass is a problem all sportsmen must face each year. Don’t be tempted to hunt or fish on
    land without the owner’s permission. Don’t hunt or fish with others who trespass. Sportsmen’s clubs
    should continue to discourage trespassing, and individual hunters should refrain from crossing the
    wrong fence. Trespassing on another’s property is breaking the law. Only a combined effort by
    landowners and sportsmen can solve the trespass problem.

    Reprinted from the Missouri Conservationist.
    Missouri Dept. of Conservation. October, 1984
     

  3. theonecatfishbob

    theonecatfishbob New Member

    Messages:
    4,100
    State:
    Wright City, Missouri
    So the way I read it, if you can get there by boat without touching private property you can fish.
     
  4. GaryF

    GaryF New Member

    Messages:
    3,649
    State:
    O.P., KS
    Yeah, Missouri has some of the most liberal stream access laws in the country. By and large if you can get there without trespassing you are ok.
     
  5. Andy52

    Andy52 Well-Known Member Supporting Member

    Messages:
    3,461
    State:
    Winfield, Mo.
    This includes flood waters. I live very close to the Mississippi, lets say the fields along the river are flooded, if I access the flood waters from the main river and do not leave my boat, I'm legal. I've seen people running jet ski's in the fields before, that is not legal do to the wake damage. I've caught a lot of nice fish in the flood waters using a canoe.
     
  6. Motopro00

    Motopro00 New Member

    Messages:
    554
    State:
    Festus, Missouri
    good read. didn't know that. thanks for sharing the info.
     
  7. rush_60

    rush_60 New Member

    Messages:
    1,719
    State:
    Troy, KS
    Thanks for the info Double D. So is it legal to access the water from the road right of way?
     
  8. Andy52

    Andy52 Well-Known Member Supporting Member

    Messages:
    3,461
    State:
    Winfield, Mo.
    Casey, If your talking about navigable stream, the answer is yes. If you, lets say can find a bridge where you can walk down to the water, you can put in there. The flood waters are a bit different, as long as you can get to a feeder stream or river from the road way your fine. If the access to those are closed as the water drops, you can't put in as that would just be standing water.
     
  9. joer

    joer New Member

    Messages:
    335
    State:
    columbiaMo
    from what i learned about wading to flyfish some of missouri's streams is so long as you are in water you are not trespassing. if you step on land it's a different law. the water ways are owned by the state or federal. just be considerate as if it was your land and i'm sure you won't have a problem.
     
    Last edited: Oct 13, 2009
  10. Fishin'_Fool

    Fishin'_Fool New Member

    Messages:
    318
    State:
    Moberly MO
    My understanding of the law is that if you are touching the bottom of the waterway, such as wading, then you are trespassing...BUT, if you're in a vessel then you are okay. I could be wrong, but that's how it's been explained to me.
     
  11. micus

    micus New Member

    Messages:
    524
    State:
    Lake St. L
    This is a very complex problem. The law is interpreted on a County level and what will be prosecuted in one County will be judged legal in another. It's best to check with local County police to get their take on the matter. If it is considered navigable then you have access up to the normal high water mark. You have to get there without trespassing. Always make sure that you know of a legal access downriver to take out if you don't want to backtrack.
     
  12. flathead_hunter

    flathead_hunter Well-Known Member

    Messages:
    1,639
    State:
    nebraska city
    what if there is a sand bar in the middle and your fishing from it??? a guy i work with always talks about this subject.... i'm not shure on your laws but he tells me land owners own the land under water state owns the water in nebraska anyhow.... i have never checked into it good post tho
     
  13. micus

    micus New Member

    Messages:
    524
    State:
    Lake St. L
    In MO you normally would be able to use the sandbar, the fight comes when owners claim the sandbar is an island higher than the normal high water mark.
     
  14. rush_60

    rush_60 New Member

    Messages:
    1,719
    State:
    Troy, KS
    What does Mo consider navigable?
     
  15. joer

    joer New Member

    Messages:
    335
    State:
    columbiaMo
    I thought all waterways were federal? So there for it can't be a state law. I don't know it's all confusing to me :confused2:.
     
  16. rush_60

    rush_60 New Member

    Messages:
    1,719
    State:
    Troy, KS


    The state is the one that enforces the law so they kind of set their own rules.
     
  17. SkipEye

    SkipEye Well-Known Member

    Messages:
    7,525
    State:
    Winfield, MO
    Name:
    Darryl
    The way I always understood it was that as long as you could float your boat you were okay. The second your foot touches the bottom, even to portage through a shallow, you are trespassing.

    That doesn't really explain all of the commercial canoeing in Missouri though. It is possible that the Current River, Jack's Fork etc.... are special use waterways and have exclusive laws.
     
  18. GaryF

    GaryF New Member

    Messages:
    3,649
    State:
    O.P., KS
    In Missouri the State Supreme Court has looked beyond the federal navigability standards and said that there is an easement for travel on streams as a public highway. The ruling addressed floating and wading, for business or pleasure, as being legal, and even allowed for portage around obstacles.

    One reason you probably won't find a list of navigable streams is that it's kind of a moot point, and the courts haven't had to make rulings on specific questions of navigability. There is still some gray area though in knowing when a stream becomes too small or too seasonal to be considered a public highway.
     
  19. Jacksmooth

    Jacksmooth Member

    Messages:
    574
    State:
    West Virginia
    The court ruling held that persons floating or wading in the upper Meramec River,
    following legal entry into that stream, were not trespassing.

    The Elder case has been accepted as precedent throughout the state and represents the controlling
    authority concerning public use of Missouri rivers and streams. Continued lawful and ethical use of
    Missouri’s waterways will help ensure that right for future Missourians.




    This would be the part that says you can wade but as Gary said when does the stream become to small.
     
  20. catfishchris

    catfishchris Active Member

    Messages:
    681
    State:
    missouri
    Elder vs Declur only addressed streams that were deemed navigable to commercial boating traffic. "Generally speaking" those streams are the Merimec, Missouri, Missisippi, and St. Francis Rivers. Those are all large rivers. If you stay within the banks, you won't be trespassing. The banks are considered the normal high water mark.

    However, on the smaller float streams, most of the the banks, and the land on the bottom, are privately owned. This includes sand and gravel bars. The ownership is determined by what's on the landowner's deed. However, if you can float over it in a boat you will be fine as long as you don't touch any land.

    Prosecutors in the southern part of the state seem to be stricter about this interpretation than their counterparts in the north part of the state. If you are in doubt I would contact the prosecuting attorney's office in the county you will be floating in.