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Land Surveyor13

Where we can and can not fish!

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Very interesting article on the BASS website about fishing in backwaters and lakes when a river floods.  I used to do this all the time when I lived in Mississippi on the Mississippi River.  Check it out.

http://sports.espn.go.com/outdoors/bassmaster/conservation/news/story?page=b_con_news_LA_Access_20081007

Jerrod

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This is a very interesting situation.

Can one fish on waters above private land?

Does the landowner also take possession of the waters above their land when the waters are either transitory or permenant?

And can this standard be expanded to include creeks and coves if the landowner has title to any part of the creeks and coves?

We can also add marinas, boat docks, piers, canals, etc. to the list of areas where a landowner has the possession of the land under the water, either on a permanent basis or due to flooding or tidal action.

Should be an interesting case and decision.  :)

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Sam this has been in the Louisiana courts for several years. Hopefully it will come to a conclusion soon. It is anyone's guess which way though. If they decide the land owners do have ownership out to the center of the creek as well as the water covering their land it will have far reaching effects on everyone's ability to fish certain waters.

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I really do not see where there is a problem.

Nothing I read in the article talks about an individual owning the land to the middle of the channel.

It deals with flood waters which encroach onto normally dry land.  Every river has its "mean water level".  It may be lower in times of drought, and higher during periods of heavy rain.  

Why should the occasional flood waters give anyone access to another's property?

There is much the same situation on tidal waters, and it varies from state to state.  In some states, the landowner has deeded rights to the mean low water mark.  In other states, it's the mean high water mark.

This means in some states, beachgoers can set up their beach gear in front of homeowners when the tide is out, and in other states, they cannot.  In some states, where the owner has title out to the mean low water mark, there are provisions where others can walk the beach, but they cannot set out their blankets, beach umbrellas, etc.

Perhaps the Supreme Court declined to hear it because it is a state's right issue, not subject to their ruling.  Their declining to hear it indicates they view that to be the case.

Personally, I do not believe that we have the right to access private property just because a river or pond has flooded onto it.

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Hey Fishing,

Good reply.

And yes, I know it has been in the Louisiana courts, which use Napoleonic Law, as I have been following the case in the literature.

The issue is the right of third-parties to access waters over private land.

Just like accessing mineral rights under the land where you must state that you want the mineral rights and pay for them or you own the land over the mineral rights and others can mine the land for the minerals.

The interpertation can be construed to also extend to docks, piers, marinas, etc.  Areas where the landowner may or may not have title.

I understand the position that you cannot venture onto flooded land, just as you cannot enter private property if the gate, door or window is open.

Some of us who fish these flooded areas may have to visit the county or parish courthouse to view where the landowner's land stops.  That is, does the ownership extend into the waterway and if so, how far?

As for a states rights issue, I sure hope you are correct.  We all get along in Virginia with the fishermen and the property owners and I would be very upset if the federal courts got involved.

Then there is the question of who actually owns the water.  But that is a debate for another day.  ;)

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I really do not see where there is a problem.

Nothing I read in the article talks about an individual owning the land to the middle of the channel.

It deals with flood waters which encroach onto normally dry land. Every river has its "mean water level". It may be lower in times of drought, and higher during periods of heavy rain.

Why should the occasional flood waters give anyone access to another's property?

There is much the same situation on tidal waters, and it varies from state to state. In some states, the landowner has deeded rights to the mean low water mark. In other states, it's the mean high water mark.

This means in some states, beachgoers can set up their beach gear in front of homeowners when the tide is out, and in other states, they cannot. In some states, where the owner has title out to the mean low water mark, there are provisions where others can walk the beach, but they cannot set out their blankets, beach umbrellas, etc.

Perhaps the Supreme Court declined to hear it because it is a state's right issue, not subject to their ruling. Their declining to hear it indicates they view that to be the case.

Personally, I do not believe that we have the right to access private property just because a river or pond has flooded onto it.

It's not this article that carrys all the info. The prior articles printed over the last several years are the ones that have the issues. Courts are considering allowing the private companies to actually fence off the water and use it for their private use. Way too much to discuss on this site. Research it and try to find the earlier articles. If you need help let me know and I will try to locate them. The cliff notes have been printed in Bass Times and they did a great job listing the issues. I completely agree that a high water issue does not give anyone access to anothers property. I just think it may lead to a lot of accessability issues that could have reaching effects on the water everyone is allowed to fish.

One senario that was discussed was that noone would be allowed to exit the main water of a river via a creek due to the fact that they would in reality be tresspassing. Many are concerned that everyone may be restricted to just the river itself. I guess we will just have to wait and hope for the best, what ever that may be.

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The Supreme Court refused to hear the case October 7. Go to http://sports.espn.go.com/outdoors and read the story. I'm sure it will be tested in another case as soon as the water rises and the duck hunters hit the water. Probably be a mess but hopefully some good will come out of it. It now goes back to the court in Louisiana without an opinion so we will have to wait for someone else to be arrested on the water above someone else property. Very interesting.

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Hey Fishing,

Good reply.

And yes, I know it has been in the Louisiana courts, which use Napoleonic Law, as I have been following the case in the literature.

The issue is the right of third-parties to access waters over private land.

Just like accessing mineral rights under the land where you must state that you want the mineral rights and pay for them or you own the land over the mineral rights and others can mine the land for the minerals.

The interpertation can be construed to also extend to docks, piers, marinas, etc. Areas where the landowner may or may not have title.

I understand the position that you cannot venture onto flooded land, just as you cannot enter private property if the gate, door or window is open.

Some of us who fish these flooded areas may have to visit the county or parish courthouse to view where the landowner's land stops. That is, does the ownership extend into the waterway and if so, how far?

As for a states rights issue, I sure hope you are correct. We all get along in Virginia with the fishermen and the property owners and I would be very upset if the federal courts got involved.

Then there is the question of who actually owns the water. But that is a debate for another day. ;)

I wonder how this brouhaha got started.  Was the landowner just being ornery, or did the fishermen extend the owner the courtesy of a visit, asking to use his drainage ditch, or whatever it was to access the lake.

There's a whole lot we don't know, and the article as posted doesn't give us a clue.  Since the article is from BASS, I gives me pause as to why.

BASS, just like the AARP, the Massachusetts Lobstermen's Association, the NRA, exists to benefit its members.  It may propose legislation to enact or change laws.  It may lobby legislators.  In short, it's main job is to promote the pros of any issue for its members, while ignoring, or minimizing the cons.  All are political in nature.  

So, like any editorial or commentary, I will take the source into account.  BASS is not a disinterested party, hence there will be some subjectivity in their position.  Please, do not take this to be a condemnation of BASS.  It is not.  

Fortunately, I was a commercial lobsterman, and there was no recreational fishery for lobsters to the degree there was for other species, such as Stripers, Tautog, Cod Fish, Scup, etc.

There was a time when a gang could go out on a boat for a day off Gay Head (Martha's Vineyard) and catch a few hundred dollars worth of scup.  When they could not, the stuff hit the fan.  All in all, their goal was the same as the draggermen.  Catch as many fish as you can.  They were only interested in "conservation", not for the species sake, but for their wallets.

The recreational fishery had/has much more political clout than the commercial fisheries when it came to regulations.  And many regulations placed on commercial fisheries had their origin with the recreational organizations.

I'll say one thing in that regard.  It is my observation that when a fishery declines to the point where it is no longer profitable, commercial fishing ceases.  But, recreational fishermen will spend a day on the water whether they catch one fish or one hundred.  

The commercial fishery can deplete a stock more quickly, but economics force them to abandon that fishery, where a sportsman can try to catch the last fish of a species.  His finances are not dependent on it.

It's all in the eye of the beholder.  Sometimes, the eye is jaundiced.

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I really do not see where there is a problem.

Nothing I read in the article talks about an individual owning the land to the middle of the channel.

It deals with flood waters which encroach onto normally dry land. Every river has its "mean water level". It may be lower in times of drought, and higher during periods of heavy rain.

Why should the occasional flood waters give anyone access to another's property?

There is much the same situation on tidal waters, and it varies from state to state. In some states, the landowner has deeded rights to the mean low water mark. In other states, it's the mean high water mark.

This means in some states, beachgoers can set up their beach gear in front of homeowners when the tide is out, and in other states, they cannot. In some states, where the owner has title out to the mean low water mark, there are provisions where others can walk the beach, but they cannot set out their blankets, beach umbrellas, etc.

Perhaps the Supreme Court declined to hear it because it is a state's right issue, not subject to their ruling. Their declining to hear it indicates they view that to be the case.

Personally, I do not believe that we have the right to access private property just because a river or pond has flooded onto it.

It's not this article that carrys all the info. The prior articles printed over the last several years are the ones that have the issues. Courts are considering allowing the private companies to actually fence off the water and use it for their private use. Way too much to discuss on this site. Research it and try to find the earlier articles. If you need help let me know and I will try to locate them. The cliff notes have been printed in Bass Times and they did a great job listing the issues. I completely agree that a high water issue does not give anyone access to anothers property. I just think it may lead to a lot of accessability issues that could have reaching effects on the water everyone is allowed to fish.

One senario that was discussed was that noone would be allowed to exit the main water of a river via a creek due to the fact that they would in reality be tresspassing. Many are concerned that everyone may be restricted to just the river itself. I guess we will just have to wait and hope for the best, what ever that may be.

I understand it's sketchy, but for those of us who know nothing about it, it's all we have.

Here's my point.  Fishermen, like golfers, bowlers, etc., come in all stripes.  There is a popular pond (Sawdy Pond) only minutes from our house.

It is on the MA, RI border in the towns of Westport and Tiverton.  Maybe a tiny sliver in Fall River.

The only public access is a dirt ramp along side Rte. 177.  It's dirt, rocky, and in serious need of grading.  Nonetheless, it is what it is, and it is used by fishermen from alongshore fishermen to kayakers, canoers, jon boaters, and even full fledged bass boats are launched there.  It is two lanes wide leading to the single lane ramp.  The higher lane is usually used by guys with trailers.  

It is lined to the south with heavy woods.  Some fisherman or fishermen,  pulled an aluminum framed windshield off their boat, stripped it of its carpeting and other miscellaneous parts and dumped the mess in the woods.  In another place another fisherman disposed of some boat and trailer parts.

Animals like that can ruin it for everyone.  

I'm sure you've seen it, because I have at every ramp.  There are receptacles at the top of the ramp for trash.  Yet, at the water's edge is discarded fishing line, blister packs from lures and other trash.

When I see it, I gather it up and deposit it where it belongs.

Which reminds me of a similar incident.  When I was lobstering, some person from Somerset left a couple of bags of their trash on the dock beside my boat.  

I went through it, and found some mail with their address on it. PERFECT.  I hauled it to the state highway that runs through Westport, near the docks, and left it on the ground by a traffic light.

At that time, I plowed snow for the state.  I asked the shop foreman if he found some trash by a traffic light on Rte 88 during the past summer.

He proceeded to tell me he did.  The state cops were summoned, and they went to Somerset to call on the perpetrators with their garbage and a summons in hand.

When I told him the story, he laughed like a son of a gun and said, "Good, they deserved it."

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Glad to see that we have some opinions on this topic. Being a Land Surveyor I find this interesting because it deals with land and water rights. This lake is a oxbow lake and at one point time was the navigable water way of the Mississippi River. Attached is a picture of the lake off of Google Maps. The lake is to the west and the river to the east. I can see where access to the lake is possible when the river floods from the south. By law you are trespassing if you are caught on the lake. And therefore you are subject to being arrested. However I can see the other side also. I only read the BASS article early this morning before the work day began. I will definitely do some research and read up on it.

Jerrod

post-8350-130163010879_thumb.jpg

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What I wonder about is whether it is a privately stocked tank that someone has put something into or if it is accessible. If it is stocked I think the land owner has rights which need to be protected. I supect that this may be the case.

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I hate all the people like that in this state. People get crazy about that kind ofstuff. I got a guy threaten to call the cops on me because I was walking along the shore and ended a 1ft onto a guys lot.

whatever, moral of the story is that Louisiana sucks.

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It seems like its case closed to me. Both the state and the Fed court of appeals ruled the navigatable waterway is the ordinary low water level. Both the state and fed supreme courts decline to hear the case, so there is no court left to appeal to, until other cases come along.

I agree with the verdict. I think the problem would best be solved by the state or feds buying lands that routinely flood. This would prevent them from becoming developed and provide for controlled floods (along with regulated recreational activities).

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I see this as a good ruling on the side of property rights.  Usually the state and federal govt wants to gobble up the land and use many questionable EPA Navigable Waterways laws to undermine property rights.  In this case the land grabbers got it right.  

I wonder why the ditch is no blocked off in some way to prevent people from going up it.  Rocks, poles, or a fence...

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