Non-Navigable Waterway Access

[AJ Hauser]

Hey all,

Wondering if you could help me get the exact specifics on non-navigable waterways? I was in a creek a few weeks back and a property owner said he was going to shoot me. I entered the creek from the river with public access. I was respectful and left (and went to his house to meet him after a few days passed - we're cool now) but he kept screaming this is a non-navigable waterway! 

 

I was in a kayak, but I had stepped out into the shallows to cast. 

 

It seems like in Illinois, the property owners own the creek bed, but even my new friend said that as long as I stay in my kayak... I'm legal, because they can't own the water. The kayak can float in like 6 inches of water so I'm good until I hit a patch of riffles, which require me to hop out to pass through.

 

Does anyone have a bit more insight into this? I'm not looking to argue or fight with anyone but I would like to know a bit more before next season, because there are smallmouth in them thar creeks...

 

Thanks! 

[AJ Hauser]

 

 

Thanks much - talk soon! 

[the reel ess]

Generally, if you can navigate it, it's public water up to a certain high water level. That's the law in SC. So you can get out, take a leak, stretch or even camp. That doesn't mean the landowner will be alright with you doing all that. A lot of landowners don't know the law. One in SC shot an killed an unarmed paddler who was camping on a sandbar in front of his property. The landowner is in prison now. I would have just moved along before I got into an argument or fight with the guy, right or wrong.

 

Weigh the dangers. But I'd go for it too. I have been down a river that's really just a creek at its average level. There were places we had to get out and walk or drag our kayaks. You might also have to get over or around some logjams. Take pics and post them here.

[Scott F]

Illinois has very bad laws concerning public access and defines a navigable river differently than the US Supreme Court. I’m not sure which stream you are currently trying to float, but there is a big fight going on right now on the DuPage. Nobody was giving anybody any problems with floating or wading until a tubing company started using the river and the patrons began using the river and it’s privately owned bottom as a garbage dump and public urinal. The property owners got fed up and put up cameras to catch trespassers and report them. Other rivers like the Vermilion, have a long history of riverfront owners stringing barbed wire across the river to stop people from using the river. They have also confronted “trespassers” with guns and flatten tires on cars parked where they shouldn’t be. 
There isn’t a lot a hope that things will ever change. 

[Team9nine]

51 minutes ago, AJ Hauser said:

Hey all,

Wondering if you could help me get the exact specifics on non-navigable waterways? I was in a creek a few weeks back and a property owner said he was going to shoot me. I entered the creek from the river with public access. I was respectful and left (and went to his house to meet him after a few days passed - we're cool now) but he kept screaming this is a non-navigable waterway! 

 

I was in a kayak, but I had stepped out into the shallows to cast. 

 

It seems like in Illinois, the property owners own the creek bed, but even my new friend said that as long as I stay in my kayak... I'm legal, because they can't own the water. The kayak can float in like 6 inches of water so I'm good until I hit a patch of riffles, which require me to hop out to pass through.

 

Thanks! 

That basically sums it up here in Indiana. Non-nav = don’t touch bottom or walk in, but OK to float through. That said, you potentially can get all kinds of scenarios (confrontations) when you throw in unknowledgeable land owners and/or local/county law enforcement. In some cases you just have to walk away and leave, even if you know you’re right.

[TnRiver46]

The definition of navigable water is also a little vague. Somewhere in there it states that if goods or services were traditionally moved down a river, it falls under coast guard jurisdiction as navigable water. Then if you keep reading it says even tributaries of such waters are considered navigable. So they could claim just about anything by that definition. Even so, a lot of the Tennessee land deeds are as you described, people own halfway out into the water and the people on the other side  own the other half 

[Tennessee Boy]

I believe that federal law states that the Corp of Engineers can  declare that a stream is navigable.  Our local Corps district has a list on their web site.   I assume they have similar list for other districts.  Tennessee state law says that if a stream is not on the Corps’ list, it’s status must be determined by a jury. 
 

Like other’s have stated,  what the law says and what the land owner believes are not always the same.  My local lake is a Corps of Engineers lake and the Corps owns all of the land around the lake.  Land owners have to get dock permits and even need permits to mow down to the water.  Still,  some of them think they own the bank and the water 50 feet out.

 

Here is the Corps of Engineers list for the Nashville District.

 

https://www.lrn.usace.army.mil/Missions/Regulatory/Navigable-Waters-List/

[Chris Catignani]

I went through the same kind of thing wading years back. Like mentioned above...you own the river half way across. My problem was that sometime the owner can own both sides of the river...technically owning the river. And in some cases, putting a fence across the river (really for cattle). The non-nav part came down to if you could float logs down the river (that part is a little dated). 

Getting to know the land owners will usually get you on the river.

Warning: If you find yourself on the losing end of this battle ...dont push it. You'll find yourself with four flat tires.

[DitchPanda]

I've been fortunate enough to never run into a situation like this..I've either always been in the right or never run into a ticked off landowner if I unknowingly did trespass. I heard a story about a guy fishing a stream in either a kayak on canoe...totally legal..only to have a landowner run down and raise holy hell. He told the angler if you don't move along  now ill drag you out of that boat. The angler casually stood up lifted his shirt revealing a pistol. Told the guy hey if that's what you want come get it. Sad that this is what the world has come to.

[AJ Hauser]

Hey all,

I recently had a run in with a property owner in Illinois that wasn't pleasant. I was hoping to hit several creeks this coming year, but I'm not sure what is legal. Do any of you know of any creeks in northern Illinois that have public access that can be waded and fished legally? 

 

I am doing my best to learn more about the law and I don't want to cause trouble, but if any of you know of some creeks that can be fished legally, that would be a great help. 

 

Thanks much - talk soon! 

[schplurg]

23 minutes ago, DitchPanda said:

I've been fortunate enough to never run into a situation like this..I've either always been in the right or never run into a ticked off landowner if I unknowingly did trespass. I heard a story about a guy fishing a stream in either a kayak on canoe...totally legal..only to have a landowner run down and raise holy hell. He told the angler if you don't move along  now ill drag you out of that boat. The angler casually stood up lifted his shirt revealing a pistol. Told the guy hey if that's what you want come get it. Sad that this is what the world has come to.

 

If we are talking about so-called civilized Western countries, then no, the world has not come to this, it's mostly just us.

[king fisher]

I have been on both sides of this issue, and it really depends on your state, and how your local law enforcement interprets the law.

      Official Federal Navigable water ways are listed, and people are required to obey rules listed by the Coast Guard.  If you guide on a listed Federal Navigable water way you are required to be licensed by the US Coast Guard regardless of State.  All Federal Navigable waters are public up to the high water line including the bottom.

      Most rivers and lakes are not listed by the Federal Gov.  The rules pertaining to them are different depending on what state, and some laws are not clear cut, they depend on case law from previous law suits.   Some states such as Alaska, simply state that all water belongs to the state of Alaska, and is public.   If a lake is surrounded by private property it is still legal to land a float plane and fish, you can even go on the land as long as you stay below the high water line.  Other states define public water as only navigable water and is open to interpretation by local law officers, and individual Judges, as to what that means.

      The old colonials definition of Navigable is any water you can float a canoe in.  Where this interpretation comes into conflict is many small waters you can float a canoe in places, but may have to portage or walk on the bottom in other parts of the river.  The land owner may pay property taxes on the bottom of the Pond Lake or river, and will have a good argument that he owns the bottom and anyone touching the bottom even with an anchor is trespassing.

      I duck hunted and fished, a small creek for many years, where I occasionally had to get out and walk the boat through the shallows.  It was in WA State and the law there was very vague.  The local game warded felt I was in the right and would not ticket me.  The land owner was furious but there was nothing he could do.  I talked to the Local DA and he researched the case law and told me  other similar arrests and law suites went both ways.  He assured me that if the local law didn't arrest me, than he would not bring a case against me regardless of how much the land owner pushed it.

      Twenty years later I went back to the same creek bass fishing.  The Game warden came out and told me I would have to leave that the I was on private land and the water was not navigable.  I asked him if the law had changed, and he said no but the Game Warden had. He was very nice and new I had been a local who had fished and hunted the creek growing up when it was owned by a local family, and he wasn't gong to ticket me.  He even helped me drag my boat to the road.

     I asked a friend what was up and he told me the new Game Warden had become friends with the land owner and was allowed to duck hunt the creek.  He tells every one his interpretation of the law.   If I was to be arrested, and spent lots of money defending my belief that it is public water,  I would have a 50/50 chance of winning.  I decided it would be easier to make friends with the Game Warden, and go duck hunting with him.  The fact that I had a good retriever and he didn't would be a big help.

      In the past few years, there have been land mark court cases in almost all the western states with ranchers fighting with rafters over access to rivers that flow through their lands.  Again most of the court cases have been split about 50/50 some for the land owner, and some for the rafters.              A short answered to your question would be depends not only on the law in your state, but what traditionally has been the enforcement of the law.

        As long as you don't touch the bottom of the water you described than most likely you're legal.   Another thing I learned from an encounter years ago on the creek I mentioned, regardless of what the land owner may think of you trespassing he is not allowed to point a gun at you unless you are some how a threat to his safety.  Sitting in a float tube with a fishing rod is not a threat.  The game warden made that very clear to the land owner I had difficulty with.

       

         

[Log Catcher]

The game wardens explained this to a guy fishing a creek that ran through my nephews property. If you are floating you are legal. Once you step out and touch bottom you are standing on someones property. 

[Bluebasser86]

Call your local DNR officer or Game Warden. Laws vary state to state. In Kansas, the land owner owns the water and the land, so once you cross a property line, you're on private property, floating or not. 

[DitchPanda]

31 minutes ago, Bluebasser86 said:

Call your local DNR officer or Game Warden. Laws vary state to state. In Kansas, the land owner owns the water and the land, so once you cross a property line, you're on private property, floating or not. 

That's ridiculous

 

How can somebody own something that is moving. A piece of land is stationary so that makes sense..water moves so either everybody or nobody owns that.

[slonezp]

A guy pointing a shotgun at me would be the definition of Non Navigable. 

[Bluebasser86]

31 minutes ago, DitchPanda said:

That's ridiculous

 

How can somebody own something that is moving. A piece of land is stationary so that makes sense..water moves so either everybody or nobody owns that.

I believe it only applies to riprarian bodies of water where a clear line could be drawn across it, but we do have some lakes here that portions are privately owned and off limits to the public. They just put out buoys and make it known that you can be fined or even arrested because you're trespassing on someone's private property if you cross pass the buoys. 

[DitchPanda]

5 minutes ago, Bluebasser86 said:

I believe it only applies to riprarian bodies of water where a clear line could be drawn across it, but we do have some lakes here that portions are privately owned and off limits to the public. They just put out buoys and make it known that you can be fined or even arrested because you're trespassing on someone's private property if you cross pass the buoys. 

Oh I understand how it works..but it doesn't make sense. I hear all the time from my fishing buddies about states making absolutely bogus BS laws pertaining to property and ownership. Some states would benefit from having outdoorsman as lawmakers...maybe just anybody with common sense..or at the very least a brain.

[moguy1973]

Yep, every state is different.  There was a big court case back in the 50's (Elder v. Delcour) here in Missouri that declared the high water mark of a "navigable" river is public property as long as there is a public access to it somewhere along it's watershed.  Now land owners may interpret that differently such as the one the OP ran into, but in Missouri as long as you are between the banks, you can walk, camp, float, fish, and do whatever you want to do.  Just make sure you don't get shot by a P-O'ed land owner who thinks differently.

[Bankc]

Just stay away.  It doesn't matter what the law says.  That guy probably doesn't respect the law or governments in general anyway.  The world is full of paranoid people who will shoot you for ridiculous reasons, and them going to prison after the fact is of little comfort to your friends and family.  And, often times, especially in smaller communities, the local police will find it easier to back the local land owner than follow the letter of the law.  They have to live in that community and they often make decisions based on what's less work for them and gets them in less trouble with the community, rather than what's right or legal.  Plus, just like that paranoid land owner, they often view outsides with suspicion, and locals with a sense of "that's just who he/she is and everyone knows it and accepts it".  

 

11 hours ago, DitchPanda said:

Oh I understand how it works..but it doesn't make sense. I hear all the time from my fishing buddies about states making absolutely bogus BS laws pertaining to property and ownership. Some states would benefit from having outdoorsman as lawmakers...maybe just anybody with common sense..or at the very least a brain.

Yeah, but if you had common sense AND a brain, why would you run for office?  That's the catch 22.  

 

And outdoorsman don't always make the best lawmakers either.  That's how we got a Big Foot season in my state.  

[Tennessee Boy]

12 hours ago, DitchPanda said:

That's ridiculous

 

How can somebody own something that is moving. A piece of land is stationary so that makes sense..water moves so either everybody or nobody owns that.

Air also moves but that doesn’t mean it should be okay to fly a drone 3 feet away from someone’s bedroom window.   How much airspace you own above your land is another legal area that’s being discussed a lot recently due to the popularity of drones.  Those laws are very similar to the water navigation issues being discussed here.

[FishinBuck07]

Ohio is like this also!  As long as you are not touching the creek bed you are good, but most people that own property that a creek runs through are too stupid to understand it and think they own the water also.  This is the exact reason I don't fish many creeks here in Ohio, I don't want to deal with more stupidity than I have to!  haha.  There are a few creeks and streams that run through state or national forests and those are about the only ones I fish.  Dumb law, because it causes more issues than it solves!!!

[king fisher]

12 minutes ago, Tennessee Boy said:

Air also moves but that doesn’t mean it should be okay to fly a drone 3 feet away from someone’s bedroom window.

According to FAA regulation.  Except for take off and landing, no aircraft can operate within 500 feet of any person, vessel, vehicle or structure.  
So far that does not pertain drones.  Changes to the regulations for drones is a hot topic at the FAA. 

[ironbjorn]

So much talk about getting shot by some idiot for the crime of trying to float down a river and/or fish, as if this is normal. No, this is psychotic, and America is sick.

[CrashVector]

37 minutes ago, ironbjorn said:

So much talk about getting shot by some idiot for the crime of trying to float down a river and/or fish, as if this is normal. No, this is psychotic, and America is sick.

Which is why I always have at LEAST a Ruger 22 pistol in my kayak at all times.

 

The fact that some people think it's okay to KILL someone for floating on the water in a boat *IS* insane.