Frankstown Branch - Serious Issue With Landowner & Access

[SirJohnny]

Frankstown Branch - Major Landowner Dispute (4/16/2017)

All:

Ran into a rather irate landowner and his wife on the Frankstown Branch of the Juniata. Usually, I try to keep my fishing locations a secret on Facebook, but this needs to be told and there is a gigantic safety issue.

I have the Pennsylvania State Police involved (they came out to the stream), as well as the PA Fish Commission - District Supervisor.

Gentleman pulled a gun on another angler this afternoon and chased him down the stream (this was reported to me by the angler, and I did not see).

Gentleman threatened to get his gun and "shoot" me. I advised him to call the PA State Police (which he did). Landowner's wife then physically bumped her chest into me several times, screaming and yelling. I did not see any gun during my confrontation with these folks.

These folks attempted to keep me from passing through their section/property via the stream (I was in the stream the entire time).

An officer Kline from the PA State Police later arrived on the scene and interviewed me and took my information. Landowner wishes to press charges. Officer did not know stream laws, and would have to check with Fish Commission and others.

I fully expect to receive either a citation or court summons later this week or sometime next.

The gentleman has both sides of the stream posted. I believe the other side borders I-99 and might be Penn Dot property (but don't know).

If you look at the picture, you can see where he has run a bulldozer down to the edge of the stream and is actually moved ground in an area that gets regularly flooded. I am not sure if he actually bulldozed the stream bottom. This was reported to the PAFBC this afternoon.

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Here's what I do know. The entire Frankstown Branch and several named tributaries were declared navigable back in the 1700s. The text cited, is the same used for the Little Juniata vs. Donny Beaver case, in which the Pennsylvania anglers prevailed.

Remember, the Frankstown Branch was home to the Portage Railroad back in the 1800's. Lots of remnants exist with respect to the old canal lock and dam system from that time period.

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I am fully prepared to legally challenge this gentleman. I am also prepared to file civil suit regarding the threat (from both him and his wife) regarding the use of firearms, and illegally interfering with a person legally engaged in the act of fishing in Pennsylvania.

Just wanted to give a heads up ... as this could get ugly, and don't want to see anyone get hurt on the stream. This gentleman and his wife are mentally unstable and I am afraid he will result to using firearms if necessary.

Please post to other groups/discussion boards/where ever. Please feel free to use my name.


Sincerely,

John Coxey
(Altoona, PA)


Photo shows area of dispute.

 

[John96]

I am sorry to hear that your day of fishing had this B.S. thrown in. I wish you the best of luck in dealing with this. I ran into someone like this once, although not as severe, while hunting. It's never fun.

It may be worth while to share the specific location so that others know to avoid.

 

[SirJohnny]

John96:

- Frankstown Branch of the Juniata River.

- Approximately 3 miles south (upstream) of East Freedom, PA (along old US 220). About 1 mile south (upstream) of where Interstate-99 crosses the Frankstown Branch.

- Hope this helps.

John Coxey
(Altoona, PA)


P.S. The issue of angler safety outweighs any hotspotting concerns that folks may have.

 

[pcray1231]

FYI, the 1700's declaration of public highway made by the PA state legislature does not hold legal water.

It can be used as evidence that it's navigable. But it does not make it so. The PA legislature has no say in whether it is navigable. It's federal law and it either physically is, or isn't, a state legislature can't change that.

The Frankie has not been tested in court. Thus, neither of you are wrong. Well, one of you is, but you both have legally defensible positions. A court has to decide whether it's navigable.

 

[Dave_W]

Thanks for the heads-up on this bad situation.

Please feel free to keep us informed.

 

[PALongbow]

Not a good situation and do not support harassment of any kind. Shame it has come to this where people are confrontational over fish and land however it does not surprise me at all because the waterway clarification and history on navigable versus non navigable varies.

Probably not worth fighting the navigability versus non navigability. There is something called land ownership prior to the commonwealth of PA's involvement which could supersede any commonwealth acts such as commercial highways. Having said this every portion of PA was different in what occurred prior to and just after the Revolutionary War. Not a lot of people including agencies know or understand this portion of history in PA but they are now being informed. I would just advise fisherman to avoid private land or ask permission first.

Ron

 

[3oh4]

Fished the Frankstown Branch Monday but wasn't that high upstream.

Not to many things worse that can happen on a stream than running into an angry individual; then throw in a gun to the mix and that seals the deal.

If I'm not mistaken that is or is near where the stock the Frankstown Branch? Maybe that is part of the land owners rage in some fashion?

 

[afishinado]

The Frankstown Branch of the Juniata River is listed and declared by the DCNR as being navigable.

But this declaration has to be upheld in court, like the Little J was back a few years ago. I read some of the court case, and there was a ton of evidence that the entire Juniata and Little Juniata was used for commerce back-in-the-day.

It's very likely the declaration would be upheld, but who wants to go through all the trouble to fight the case in court.

I would be all for the DCNR list of streams and rivers declared navigable be enforced as such, while any private concern certainly has a right to challenge that ruling in court.

DCNR List of Navigable Rivers and Streams

It always seemed to me bassackwards that the Commonwealth has to prove in court their declaration that a stream or river belongs to all citizens rather than the private party having to prove their individual rights.

 

[3oh4]

I had a run-in in West Virginia about 3-4 years ago. I entered the stream from a bridge (bridges are public property) and no one actually saw me fishing but my jeep was parked by the bridge on a pull off. I knew upstream was private property but I had no idea about the water below the bridge. I fished downstream for a couple miles and I exited the stream at another bridge which was surrounded by public access. (First time I ever fished the section of stream) I walked the road back to my vehicle where I found a DNR officer and the landowner waiting on me. It was obvious the DNR officer was sick of dealing with the landowner from previous times and also I could tell he did not want to ticket me. He wrote me a ticket...

I appealed the ticket via an online ticket appeal just like you would do a speeding ticket etc. When I contacted the county courthouse about the deal and sent them my appeal their response was that I was 100% correct in my appeal and there was no way they could ticket me.

I don't know PA's laws but if the man entered from a public access point and exited at a public access point he may be able to fight it if the stream is navigable.


* Just wanted to add that I know the easy way is to avoid these sections and its not worth the battle but if you allow landowners to just start dominating waterways, then you start to lose the war by losing the small battles. I have seen Maryland become a b!tch to landowners and WV is just retarded b/c they have no law and leave it up to "interpretation". I hope the guy fights and wins!

 

[pcray1231]

Afish, the DCNR list is just collecting the declarations of public highway made by the state legislature throughout history.

And those declarations are legally meaningless, as is the DCNR list.

That said, the "real" test is whether it could be used for commerce. Having been used for commerce is very good evidence, if not outright proof. And for the most part those state declarations were meant to protect an existing commerce route from a troublesome landowner.

I'd say that being on the DCNR list means you are probably in pretty good shape going into a court battle, as it likely got on that list for the same history the courts will look for. But on it's own, being on the list is meaningless.

The landowner isn't challenging anything in this case. Unfortunately, it's on the landowners deed if he owns both sides. The legal status quo is that it's private. The challenger is the OP here, though he has a good case.

 

[lycoflyfisher]

So if a landowner wants to build a bridge or needs to run a utility line under or above a stream thats on the above referenced lists they have to get a submerged land license (SLLA) and pay an annual fee to occupy submerged lands of the Commonwealth. But there are situations all over the state where landowners still prevent anglers from walking these streams.

I hope that one of these situations gets big enough that there is a more definitive ruling across the state regarding ownership and access.

 

[franklin]

lycoflyfisher wrote:
So if a landowner wants to build a bridge or needs to run a utility line under or above a stream thats on the above referenced lists they have to get a submerged land license (SLLA) and pay an annual fee to occupy submerged lands of the Commonwealth. But there are situations all over the state where landowners still prevent anglers from walking these streams.

I hope that one of these situations gets big enough that there is a more definitive ruling across the state regarding ownership and access.

Realize if the issue becomes big enough it's more likely that many groups that support private land rights will push the legislature to pass legislation to stop the minority of the population that wants stream access. It is better to simply fight the small battles on those streams that have specific access issues as they arise.

 

[Swattie87]

franklin wrote:

Realize if the issue becomes big enough it's more likely that many groups that support private land rights will push the legislature to pass legislation to stop the minority of the population that wants stream access.

^If that happened, we may have to (temporarily) call a cease fire and join forces with the spincasters and yakkers. :-o

 

[krayfish2]

Was the fishing any good?

 

[lycoflyfisher]

franklin wrote:


Realize if the issue becomes big enough it's more likely that many groups that support private land rights will push the legislature to pass legislation to stop the minority of the population that wants stream access. It is better to simply fight the small battles on those streams that have specific access issues as they arise.

I guess what I am trying to say is that if landowners can restrict access to waterways that require SLLA for certain encroachment activities, why is the agreement needed for occupied lands of the Commonwealth? It should be more straight forward, we either give more rights to the property owners or if the streambed is deemed property of the Commonwealth in navigable waterways then anglers and boaters should be able to pass through if they stay in the stream.

It would be nice if we had more concrete definitions. If it's decided that landowners have the right to restrict access then I will be knocking on a lot of doors asking permission to fish. If we are given a more defined list of navigable streams and public Access is granted on those streams, great. In the latter case I'm sure we will still have landowners that will be quick to chase people from their properties if someone gets out of the stream channel.


They way it is now I feel leads to many confrontational situations where nobody is really right. With clearer definitions maybe we can avoid some of a these confrontational situations.

 

[franklin]

lycoflyfisher wrote:

franklin wrote:


Realize if the issue becomes big enough it's more likely that many groups that support private land rights will push the legislature to pass legislation to stop the minority of the population that wants stream access. It is better to simply fight the small battles on those streams that have specific access issues as they arise.

I guess what I am trying to say is that if landowners can restrict access to waterways that require SLLA for certain encroachment activities, why is the agreement needed for occupied lands of the Commonwealth? It should be more straight forward, we either give more rights to the property owners or if the streambed is deemed property of the Commonwealth in navigable waterways then anglers and boaters should be able to pass through if they stay in the stream.

It would be nice if we had more concrete definitions. If it's decided that landowners have the right to restrict access then I will be knocking on a lot of doors asking permission to fish. If we are given a more defined list of navigable streams and public Access is granted on those streams, great. In the latter case I'm sure we will still have landowners that will be quick to chase people from their properties if someone gets out of the stream channel.


They way it is now I feel leads to many confrontational situations where nobody is really right. With clearer definitions maybe we can avoid some of a these confrontational situations.

Your best approach, unless you are willing to be the champion of a contested stream, is to assume you don't have access rights. (I'm excepting those streams where it's already established that you do.)

 

[MBWCC]

pcray1231 wrote:
FYI, the 1700's declaration of public highway made by the PA state legislature does not hold legal water.

It can be used as evidence that it's navigable. But it does not make it so. The PA legislature has no say in whether it is navigable. It's federal law and it either physically is, or isn't, a state legislature can't change that.

The Frankie has not been tested in court. Thus, neither of you are wrong. Well, one of you is, but you both have legally defensible positions. A court has to decide whether it's navigable.

I believe you may be confusing federal designation with PA law. PA law states that a river is navigable if it is or ever was used for commerce. That is the sole requirement in PA law - there is no requirement for federal designation. Nor is there a requirement for prior court designation.

 

[pcray1231]

No, I'm not. The definition of navagability is rooted in federal law, not state. If it is navigable, though, it's the state that owns it. It's also typically state level courts which determine it.

You are correct on the definition and that no federal declaration is needed. You are only semi correct that no court case is "needed". If there was no court case, then it hasn't yet been deemed navigable or non navigable. It's one or the other, and always was, and always will be, we just don't know which. A fisherman takes a risk by going on it, but in theory so does the landowner by posting it. Whoever a court says is wrong will be liable for their wrong. De facto, though, lacking a legal determination the only legal document with sway is the deed, which often wrongly granted public land. So assuming the landowner has a deed which says he owns both sides, then the status quo is non navigable until challenged in court and deemed navigable.

The DCNR list is not a legal document. But it is a list of streams where the DCNR opins that enough evidence exists of historical commerce, that, if tested in court, the judge would rule on the public's side.

They may or may not assist in the court case, though.

The rivers that are certain are the D, Susquehanna (and both branches), Skuke, Lehigh, Juniata, Little J, Yough, Mon, Ohio, and Allegheny.

 

[PALongbow]

None of this really matters if land ownership occurred prior to the Pre/post Revolutionary War era and prior to the establishment of the Commonwealth of PA. Mill Dam Acts or commercial highways, etc does not apply. Research has proven this....again not too many people understand this important piece of history including people who think they know what is navigable or non navigable. These lands were exempt from any of the commonwealth laws regarding navigability. It takes extensive research but can be found however not all lands/streams fall under this criteria.

 

[JackM]

At a certain point in history of this Nation, all prior deeds and land grants became subject to a public easement for the purpose of travel and commerce. This probably constituted a "taking," but it occurred prior to, or simultaneous with the "takings" clause. Having ownership of a streambed by deed or land grant, is now and has long been subject to the public easement on navigable waterways. Navigability is a fact, viewed historically not by the way the waterway was used, but the way it was capable of being used at that point in history.

The government "owns" these easements and holds them in trust for the public.