troutbert wrote:
The law is not archaic.
I'm only responding to this part because the rest I agreed with. The above is just opinion which you are entitled to, but others are entitled to think it is archaic.
It's archaic, but I am OK with it being archaic.
I believe it is the same way in all of the original 13 states. Streams once navigable are held in public trust because they were the highways back then. But when was the last time you saw a barge, or a log raft floating down Penns Creek to market?
As we added more states, these laws in the newer states were different. Some might say less archaic.
For example, in Ohio, navigability apparently only applies to actual navigation. I think other states are similar. Land owner can apparently own the land under a navigable stream and can restrict it's use to just navigation.
I vaguely remember a court case on the Grand where a landowner owned both sides of the river. He decided he wanted to keep everyone out. It went to court, and he sort of lost, but not entirely. I believe the ruling was that he couldn't restrict people from floating the river. But he could stop people from fishing. It was awhile back and from memory so I could be wrong. My point is, in many ways PA's navigability laws are archaic ... IMHO of course. I am OK with that and won't try to defend it by saying it isn't.
Playing devils advocate from this point forward...
By ruling that stream beds of navigable rivers are held in public trust, therefore, open to the public for however the see fit... At the same time, not providing a list of navigable streams... That opens up the possibility of a land grab by the state, does it not?
In the LJ case (I think), the land was granted to the Espys (sp) way back before this country was formed by none other than William Penn. Apparently the deed included the stream? I believe the Espies truly believed they owned the stream bed as well. But there was enough evidence to show it was used for commerce back in the day, so Donnie lost the case in spite of what the deed may have said. It was a gray area, and once it went to court, Donnie was gonna lose. Like most of you, I liked the decision for personal reasons.
But lets say I owned both sides of a smaller stream. Clearly not navigable today, and not navigable in the past under "NORMAL" conditions.
Now, lets say I post that land because it was abused all too often by slob anglers. Then some guy comes along and despite the signs, commences to fish it. Lets use the fictitious name, Richard Cranium.
I ask him to leave, and Richard flips me off and decries that he has the right to be there as long as he doesn't leave the channel. Me being a mild mannered giant, instead of getting into a confrontation or stuffing Richard under a rock, I decide to call the authorities to have Richard arrested for trespass. It takes them an hour or so to get there because I live a few miles beyond BFE. Meanwhile the rock idea is sounding more appealing to me.
Anyway, the authorities finally arrive. Richard decides to use his law knowledge obtained from the innertubes to argue with the cops. Then he resists, gets tazed and arrested. He fights the trespass charge, claiming it is navigable. I fight back. During research, it was found that the area was logged 200 years ago, and the stream, with the help of temporary dams was used to float the logs. Isn't that commerce?
But is it normal conditions?
I say it isn't. But me going up against the state? What chances do I have of being successful?
With some streams it is pretty obvious, but with others, it isn't.
