Dsr vs homewaters (or the senator vs the beav)

[foxtrapper1972]

pcray pretty much nailed it.

I've approached quite a few landowners who post land on streams I would like to fish. I've been given permission on occasion but way more often am refused and told it is because people littered in the past. I always say I want to fly fish and release everything and also offer to pick up any trash I find....Still a "NO". Then the usual whining about "liability" and "you know how things are today" (whatever that means). If the landowners concerns were really legit then I would be just the kind of person they should allow to fish.

And that g-damn kayak course should come down...I can't believe that was done legally.

 

[PALongbow]

Foxtrapper1972 -

I left my land open for fishing for three years. I had litter bugs and people who felt the creel limit didn't apply to them. I had enough. I know it was the small majority of fisherman but non the least I had enough. I now let people fish by permission only and they need to release all fish and use barb less hooks. The people I let fish are quality fisherman that care about the resource and the property. They treat it like their own. If you ever become a landowner of stream side property you will probably feel the same. Your more than welcome to fish my property.

Ron

 

[foxtrapper1972]

I would not want my land or any land or waterway disrespected. I get it. I just think some of these landowners are kind of full of it. The areas I'm in are not prone to littering and are off the beaten path. And of course it is their land and I won't trespass. It is decent that you still allow people to fish with permission. Very good Longbow. That is respectable.
The navigable waterway question is another matter. If in fact a stream is a navigable waterway then the public has certain rights. The PA law is fairly clear on that. One thing that I would like to see is a very clear list of the streams to which the law applies. Some of the streams that are currently posted may very well be public. Private property should be respected and so should public property and legal access. It should not require a court case to solve this.

 

[foxtrapper1972]

Maybe one of the PAFF resident lawyers can explain this. Perhaps Jack would help? The way I read it I would assume if I can float a log on it at any stage, even flood stage it is a navigable waterway. That would open up a LOT of water!

The common law ebb and flow doctrine has been rejected in Pennsylvania.1) A body of water is deemed navigable if it is navigable-in-fact.2) However, navigability for mere recreational purposes, e.g., floating a canoe, does not suffice.3) To be navigable-in-fact, and in law, a body of water must be “used or usable as a broad highroad for commerce and the transport in quantity of goods and people.”4) Bodies of water not usable for commercial shipping purposes are deemed “non-navigable.”5) The courts have distinguished bodies of water where the water itself is the focus of attraction from those that form trade routes.6) Only the latter is deemed navigable.7)

In addition, courts have declared certain rivers as public rivers and, therefore, open to the public. These rivers include Ohio, Monongahela, Youhiogeny, Alleghany, Susquehanna, and its north and east branches, Juniata, Schuylkill, Lehigh, and Delaware.8).)) Moreover, navigability of rivers is not determined on a piecemeal basis.9) Thus, once a river is held to be navigable, its entire length is deemed navigable.10) Privately-owned creeks and small streams are customarily non-navigable.11) However, if they are “of sufficient capacity, at any stages of water, to be used for transportation of lumber or other goods,” they are held subject to public easement and are navigable.12)

Acts of assembly have declared various streams public highways and, therefore, navigable.13) However, at least some courts have held that a stream that is not navigable-in-fact cannot be made navigable by the mere passage of an act of assembly.14) Hence, the most reliable test for determining navigability of a body of water is whether it is navigable-in-fact, i.e., it is or can be used for commercial shipping.

 

[laurelrun]

Pcray,

Not seeking your support or your own definition of legitimacy on why I post my land. We'll have to agree to disagree on that. And you rightly say it's my right to do so.

I'm just trying to offer some insight on why landowners make that choice. I am guessing that in a court battle, it's likely that the stream I live on would be deemed navigable in fact, at least near its mouth, which as I understand would then mean all the way to its headwaters.

I would posit that even if you think you are legally in the right, the fair and ethical thing to do if you are going to fish your way through posted property would be to ask the landowner for permission or at least to inform them you plan to fish through feet wet.

We are blessed with thousands of miles of public streams and millions of acres of public land in PA. That's where I fish. And if I want to fish somewhere private, I ask. If someone says no, I have lots of other places to choose from.

 

[Swattie87]

laurelrun wrote:
at least to inform them you plan to fish through feet wet.

Am I to take this that posting landowners are the ones poking holes in my waders while I sleep?

 

[foxtrapper1972]

The point is that if it is in fact a navigable waterway I don't have to ask anyone to fish it or wade it. It isn't about what you deem "fair and ethical" (that has been decided by law). The waterway itself is either private or public.
Is Spring Cr in Centre Co. navigable?

 

[FarmerDave]

Midge22 wrote:

foxtrapper1972 wrote:
Speaking of cables across creeks....Has anyone seen all the weird cables and plastic tubes etc. strung across the lower end of Spring Creek near Milesburg? Assuming it might have something to do with kayaking but not sure. It seems very strange that someone could legally place all this junk over the stream. It completely shuts that area down for fishing I can tell you that. There is no way a person could cast around all this crap.

its a kayak course.

and no, no one cant cast in that

Not even with my old Zebco 202? I'm pretty accurate with that. LOL!

 

[FarmerDave]

foxtrapper1972 wrote:
pcray pretty much nailed it.

I've approached quite a few landowners who post land on streams I would like to fish. I've been given permission on occasion but way more often am refused and told it is because people littered in the past. I always say I want to fly fish and release everything and also offer to pick up any trash I find....Still a "NO". Then the usual whining about "liability" and "you know how things are today" (whatever that means). If the landowners concerns were really legit then I would be just the kind of person they should allow to fish.

I have no doubt that is true, but try to understand that they don't know you. And maybe they are friends of the cops that apparently do. ;-)

Seriously, since we never met... and you came to my house and asked to fish in my ponds, what do you think I would say?

Seriously?

Put yourself in the landowner's shoes for a change.

If you asked my wife first, my wife would say, ask Dave. Dave is smart enough to know that means, no.

But if you asked me while the wife wasn't looking, I'd say no, but hint that there is a pond in the woods where my wife can't see you and if anybody asks, I didn't give you permission. ;-)

Seriously, that is likely what I would say (something like that). Unless you acted like an ******.

A big part of the reason I don't want strangers on the farm is there are dangers, some not as apparent. The pond in the middle of the pasture that is loaded with fish? I have no problem granting permission to people to fish it, IF I know them. Why not let strangers in? You would have to cross two electric fences to get to it, and pasture in between contains cattle, including a bull. Lately he has been putting on a show for anybody who even comes near the fence. It's fairly intimidating looking. Likely nothing would happen. He is probably just looking for a treat, but I can't ignore it. I can say my dogs likely wont hurt you either which is true if I am with you. We both know how that worked out recently when neither my wife or myself were present.

And once you get to the pond, the freakin muskrats have holes all over the freakin place and the grass is long, so they are not easy to see. It is most definitely a trip and ankle busting hazard. If you fell? You could still sue becaue I didn't mow the grass down. You would likely still lose, but that doesn't stop people from suing with the hopes of a settlement ... these days.

Hidden dangers are no unique to farms, either.

If you asked if you could trap the muskrats and maybe fish a little bit at the same time? I'd likely say, here are a few extra traps you can use. At least then, you couldn't claim that you didn't know about the muskrat holes, or the cattle.

 

[FarmerDave]

foxtrapper1972 wrote:
I would not want my land or any land or waterway disrespected. I get it. I just think some of these landowners are kind of full of it. The areas I'm in are not prone to littering and are off the beaten path. And of course it is their land and I won't trespass. It is decent that you still allow people to fish with permission. Very good Longbow. That is respectable.
The navigable waterway question is another matter. If in fact a stream is a navigable waterway then the public has certain rights. The PA law is fairly clear on that. One thing that I would like to see is a very clear list of the streams to which the law applies. Some of the streams that are currently posted may very well be public. Private property should be respected and so should public property and legal access. It should not require a court case to solve this.

At this point, the only ones that don't require a court case are the ones that haven't had a court case yet. We may not like it, but it is the way it works and I can't think of a better approach that protects BOTH parties.

I wouldn't want some elected official, or an appointee going around and acting like a dictator.

 

[FarmerDave]

foxtrapper1972 wrote:
The point is that if it is in fact a navigable waterway I don't have to ask anyone to fish it or wade it. It isn't about what you deem "fair and ethical" (that has been decided by law). The waterway itself is either private or public.
Is Spring Cr in Centre Co. navigable?

A couple things.

The navigability in fact extends to whether or not it ever was used for commerce. If you can prove that, then you are golden.

You may have to be golden both literally and figuratively because it would still require the courts to decide this.

It does not apply to being able to float a log on it during a flood. That is silly.

No, you don't have to ask to fish or wade a stream that has not been ruled in court to be navigable. But if you do this, I recommend you cooperate if a cop comes to cite you for trespassing. He is only doing his job.

You are right, it isn't about fair and ethical. It's about legal. All of these things should work both ways, and if fair and ethical doesn't work out for both parties, including the landower, we have to rely on legal to act. Until the stream has been determined in court to be navigable, legality is in question (both ways).

Spring Creek? Navigable, in my opinion. Are parts of it posted by private citizens? If so, have at it. If you get cited, start a Gofundme account and fight it.

 

[bikerfish]

I grew up on a small piece of wooded property(thank goodness!!). my father would post it every year before hunting season, and with good reason. If he was late putting up the signs, we would have cars blocking the driveway and hunters sitting in our yard. the neighbor stocked wild turkeys(40 years ago) and someone got wind of it, I was in our woods on my minibike, came around a bend, and had a hunter aiming a shotgun at my head and calling me names. Well, he and his buddy got arrested(yes, the signs were up) and were fined quite a large sum of money.
basically people post their property because other people suck. most people have property because they enjoy privacy. If I had a large tract of land today, I would indeed post it, and may or may not allow hunting. I simply wouldn't want people roaming around on my land, they are more than welcome to buy their own piece of land.
people have a habit of taking advantage of things, and ruining them. the simple solution is to just keep them out.
and we won't even get into the liability issues, which today, is absolutely insane.

 

[FarmerDave]

And Al comes through again. I couldn't have said it better.

All this disrespect for landowers reminds me of a story. My brother lives on a very narrow PRIVATE road along a trout stream. There is plenty of parking at the end of the road. People are allowed to walk in to fish.

It's a fairly well known stream due to the internet, which I will not name.

One day, some guy with Connecticut plates parked in my brother's driveway. His house is close to the private road, so he has two parking spots on the other side. He parked in one of those. Anyone parking there makes it hard for him to get out. Mind you, his place is close to a mile up the private road.

My brother asked him nicely not to park there. The guy got a little bit miffed, but he did move his car ... to my brothers side yard.

When he got out, my brother told the guy not to park there either.

Guy from Connecticut: Well, where am I supposed to "pock"?!?

Brother: "Try Connecticut."

On another occasion, brother's wife looked out the big picture window overlooking the stream only to see some ****** taking a dump.

Yep, "other people suck."

Most who fish there are very respectful, and don't even fish behind peoples houses or camps, let along take a dump there.

 

[PALongbow]

I saw a fisherman last year duck back into my wood lot. I didn't think much about it but decided to investigate about two hours later. I found that they guy not only took a dump he did it on my access road out to the creek. What a slob.

The other day I went up to my property line and found two fresh empty bait containers and soda bottles that someone decided to leave behind and people wonder why landowners posts their land.

Ron

 

[pcray1231]

The way I read it I would assume if I can float a log on it at any stage, even flood stage it is a navigable waterway. That would open up a LOT of water!

Yes it would. Though I don't know if log floating represents "commerce". Still, while the letter of the law asks if it "could" be used for commerce, the courts have used whether there's evidence that it "has" been used for commerce. That's an important difference.

Still, way back before automobile and trains, water was the primary mode of transporting goods. The old arc/barge thingies and their boatmen went on an awful lot of smallish streams.

As for the question on Spring Creek, Bellefonte was a port town. Sort of. This exact question came up, as Centre Cty had a requirement that it's county seat be on a navigable waterway. Thus, when Milesburg was set to become the Cty seat since Spring Crk was not navigable, some local businemen dragged a small barge up to Bellefonte, the state deemed it navigable, and hence Bellefonte became the County seat.

They later altered the stream to make it easier. The dam and narrowed walls downtown were to make that stretch (which was rapids) less swift and narrowed to make it deeper. Basically, that's the point where boats went up to. Which gave rise to the Gamble Mill (still there, although rebuilt after a fire, I think), and a iron making business (old mill right along the stream there). They took their goods to market by boat downstream.

 

[pcray1231]

I am guessing that in a court battle, it's likely that the stream I live on would be deemed navigable in fact, at least near its mouth, which as I understand would then mean all the way to its headwaters.

If it were deemed navigable in fact, you'd be correct on the all the way to the headwaters part. Any part of it that carries the same official stream name.

I would posit that even if you think you are legally in the right, the fair and ethical thing to do if you are going to fish your way through posted property would be to ask the landowner for permission or at least to inform them you plan to fish through feet wet.

Disagree.

IF you owned the streambed and didn't post, then I'd agree, the ethical thing would be to ask the landowner, even though I could legally fish (in PA) without doing so. It's still ethical to ask here, and in other state's it's required, even if you don't post.

And IF you owned the streambed and do post, the ethical thing is just to stay away. I'm assuming, of course, that the signs say "No Trespassing" and not "Ask permission before entry." Your responsibility is to accurately express your intent through signage. My responsibility is to adhere to what the signs say. If I just read "no trespassing", I'd assume you also do not want someone knocking on your door all the time. Besides, I'd have to trespass to get to your door....

But if it's navigable, you don't own the streambed. YOU ARE NOT THE LANDOWNER. And there's no ethical requirement for me to ask you before entering land that is owned by the public. That's utterly ridiculous.

Of course, I have to be sure not to leave public land and enter yours.

(and I say this having no idea what stream it is and whether it is navigable, so I'm not saying it is).

Since it's an open question on whether it's navigable, even though you may own both banks without question, you don't know whether you own the streambed itself. And you should have as much risk in "assuming" ownership as a fishermen has in "assuming" ownership and trespassing. If you were taken to court and lost, the situation is exactly the same as if you had put "No trespassing" signs up around your deer stand in the middle of State Forest, as you tried to exclude the public from public land.

Spring Creek? Navigable, in my opinion. Are parts of it posted by private citizens? If so, have at it.

Yes.

1. City of Bellefonte posts it in town. Not sure on legalities here, I assume it's with permission of the PFBC, or maybe even officially BY the PFBC.

2. On the upper end of this section, there's a few landowners who post.

3. Right below Paradise, there's a VERY short posted stretch, cables and fences and all.

4. There's some posted ground up in Houserville and Lemont.

5. Right at the source, there's a Quarry who posts.

 

[foxtrapper1972]

Attention: Please notice my land is not posted. If your land is not posted you are welcome to mine. If your land is posted, go home and use your own.

 

[PALongbow]

I think people manage their land for different purposes. I really got tired of fishing areas that were cleaned out by entitlement minded fisherman so instead of crying about it I purchased my own land where I could manage it the way I see fit. I have come to the conclusion that if you don't own the land you can't manage it and have no control over what happens. I have my land open only to those that want to practice catch and release and have permission by me to access my property. If you don't like my rules then you have 26 miles of stocked stream where you can keep all the fish you want and access at any time.

Ron

 

[laurelrun]

"I can" isn't the same as "I should."

When I spend time in the outdoors away from my own home, the last thing I want to do is hassle or be hassled by anyone. I go to enjoy myself. Many creeks I have fished, I have come upon areas that cannot be safely waded due to depth, topography, or dead falls. Safest bet is to get out and walk around. Depending on the locality, that could put you on private property without permission -posted or otherwise.

I'll stick to "I should" and fish public lands and places that I have permission to be.

Conversely, "I can" call the cops on anyone I find on my property since it is posted "NO Trespassing" even though I'm no more legally required to do that than a person in a suburban sub division. However, I prefer to avoid involving the authorities, because I think two human beings can talk such things out if they are reasonable.

It'd be a waste of time to fish through my property in a warm water trickle. But if someone showed up wading through, I'd be well within my rights to follow them the entire time. I can. Legally. But that doesn't equate to I should.

If that's the windmill someone else wants to tilt at, good luck. I'd rather go fish someplace else instead.

 

[pcray1231]

Conversely, "I can" call the cops on anyone I find on my property since it is posted "NO Trespassing"

However, I prefer to avoid involving the authorities, because I think two human beings can talk such things out if they are reasonable.

Not sure I understand this. The person passed up a no trespassing sign. It wasn't a sign that asked them to talk to you first. It wasn't a sign that said "if you pass this point, we'll talk it out, and I may throw you off depending on how that goes". "No trespassing" is a rather clear instruction. If you go and talk to them, I mean, what are they gonna say? "Oh, I didn't realize you meant ME"?

Most likely you'll ask them to leave, and they'll leave to avoid prosecution. But they certainly win that exchange. They trespassed, with the most likely outcome being that you never see them, and the worst outcome being that you ask them to leave, which you can do even without the signs. So what were the signs good for? To scare off the law abiding while giving advantage to the a-holes?

The whole "I post, but ask me and I may let you" thing bugs me too. If the sign says that, great, I salute the landowner. But usually it doesn't. It just says "No Trespassing". And some of those who place those signs may want me to ask, while others don't want bothered at all and would consider me knocking on their door and bothering them to be a worse offense than actually trespassing. I typically assume the latter and just steer clear. But then a buddy will tell me how good he did somewhere.

"Oh, but the sign's are 30 years old, and a new landowner bought it 10 years ago and doesn't care." Then he should take the dang things down!

or

"He just doesn't want anyone up around his house, you're ok if you stay down on the stream". Then the signs should be placed up closer to the house! There's no law saying a landowner can't open part of their property while keeping other parts off limits.

Landowners, your signs should say exactly what they intend. If you want people to ask permission, then the sign should tell people to obtain permission before entering. If you're just worried about people driving down your lane too far, then put a sign saying "walk-in only". If you want people to stay away from your yard but don't care about the woods portion, then just surround the yard with em. If you want to allow only catch and release, then put up signs saying "fishing permitted on a catch & release basis only". Poor signage is a major headache.