Lehigh River Private Again

[ryansheehan]

Swattie87 wrote:

salmo wrote:
Landowners will say it is public when it comes to maintaining the property and private when it comes to access.

Bingo. While I fully respect landownership, and the landowner's right to post or not post, or whatever on their land, ^that mentality bugs the snot out of me. Can’t have your cake and eat it too on that one. If you want to argue that the bridge abutments, guardrails, gravel shoulders, etc are your private property then you should get to pay to maintain them. Since private landowners don’t, and tax dollars do, those are owned by the public. I'm with the OP, you SHOULD be allowed to slide your butt on that concrete to your heart's content. Whether the courts would see it that way is another matter.

I'm gonna play Devils advocate here, because there are two sides to this. If I owned land where the government built a bridge on my property over a stream I should not have to maintain that bridge nor grant people access to slide down said bridge. I'm not saying this is the case in this post, I've never fished the river and have no idea about its navagability or land access. I'm also not a lawyer but believe that government is overly abusive in taking away landowners rights. I firmly support the navagability laws but I do wish they were more clear and easy to interpret. I am very familiar with the issues of navagability on the Jackson river here in Virginia. I don't want to go into a long rant but it is criminal what some landowners have done, imo. As I said I see both sides, I would never call a landowner who legally posts a jerk. I would go to great lengths to make sure that someone illegally posting property was brought to justice.

 

[foxtrapper1972]

Bridge structure is public. River is public. If you don't touch the land you are fine. Buying/owning land both sides of a stream might be a way for some to try to deny access but I can wade in or float in and that is fine on the few waterways that have the navigable designation.

New York is slightly different (it is actually unclear i think) about whether you can wade or even touch the bottom with an anchor but you can float through.

In my view there is something very wrong with charging money or denying access to waterways or lakes or the ocean. Those things should all be there for everyones enjoyment forever. Imagine if the rich eventually bought and posted everything. It would be terrible.

 

[foxtrapper1972]

I was standing on a public bridge and let my fly drift down into a stream that was posted. Legal or no? (not officially ruled a navigable waterway but perhaps could be?)

 

[Swattie87]

foxtrapper1972 wrote:
I was standing on a public bridge and let my fly drift down into a stream that was posted. Legal or no? (not officially ruled a navigable waterway but perhaps could be?)

The water itself is still public, so as long none of you or your gear touches the river bottom, which if posted and non-navigable, is private, you're ok. Fish with well lubed dries and grease up that leader.

The same logic applies to yakkers. They can float through posted, non-navigable property so long as none of them or their equipment ever touches the stream bottom. If it does, it's trespassing.

As always, how local law enforcement on the scene would interpret this when summoned by the landowner is anybody's guess.

 

[pcray1231]

That's not fully true Swattie.

If river is non-navigable - Water and fish are public. There's an easement that allows you to float through for the sake of navigation, but you're not allowed to have any fun while your at it, lol. There is no recreation right. Can't fish, even from a bridge. If kayaking, you can't, for instance, turn around and go back through a fun riffle. No fun stuff. Straight through, get to the other side of posted property, then have fun. A strict reading of the rule says that even if you float through, you'd better not scrape bottom, and definitely not throw anchor.

If river is navigable - Water, fish, and streambottom up to the low water mark are publicly owned. Between the low water mark and high water mark is privately owned but with an access easement (so that the public can access it's own property). There is the right to recreation, so you can float, fish, etc. to your hearts content, provided you access it legally and stay below the high water mark.

And it appears with the 2012 case - if the river is navigable, but that particular section is not (so navigators had to walk the boats around or something) - The streambottom is privately owned for the purposes of taxes, rents, improvements, etc. However, because the river as a whole is still navigable, the public easement still exists to the high water mark, with recreation rights. At least, that's the way my non-legal mind interprets the 2012 Supreme Court decision. Trust this part of it at your own risk. Different courts could interpret it differently.

And, as in the Lehigh case, the river was previously declared navigable in court. Until further notice, that holds true for the entire river. If a landowner wanted to fight it, and say his particular section isn't navigable, he may have grounds to get a new case regarding that section alone. But even if he won, it'd fall under that 3rd category, as the rest of the river is navigable. Still wouldn't be able to exclude the public, but he'd have more taxes to pay, lol.

The case in Montana, the landowner was a power company with a dam and hydro plant where previously there was a waterfall. The state wanted to say due to navigability, it was state land, and the power company had to pay rent to the state. A money grab. The ruling was that this particular section was never navigable and thus the power company the rightful owner of the streambed. Thus, being the owner, they owe no rent. Even though the river as a whole is still navigable.

 

[Swattie87]

pcray1231 wrote:
That's not fully true Swattie.

No fun stuff.

Well fine then! I'm just gonna go find some public concrete to slide my butt down with trapper instead of FFing.

 

[PALongbow]

Landowners wouldn't need to post their land if people would just ask to fish and also respect the property while there. Posted land is usually a result of some jerk that felt entitled to the property and abused it....Notice I used the word 'entitled'. Seems like a real society problem today.

Ron

 

[foxtrapper1972]

I've asked. Sometimes YES often NO. Explain I am catch and release flyfishing....even barbless....Said I'd pick up any trash I saw....NOPE. NOT GETTING ON.

Perhaps some is related to jerks throwing trash etc but a fair amount is just people who want the place private for whatever reason. And they want the deer and trout for themselves in some cases....which is fine.

I'm going looking for a slab of nice concrete now.

 

[PALongbow]

I respect anyone who follows the right process to obtain access to land. I also understand the landowners own the land and can do anything they like, they pay the taxes and have the right to establish thier rules. I have lost some good hunting areas due to change of mind from the landowner or even changes in landownership. I'm okay with that and move on. Plenty of other areas to hunt and fish if you work at it. Unfortuntly the days of just accessing land at will is over. For some reason the lost art of asking permission is also gone.

Ron

 

[pcray1231]

Landowners wouldn't need to post their land if people would just ask to fish and also respect the property while there.

PALongBow - The law in Pennsylvania is assumed invitation. If there are no posted signs or other information suggesting the landowner doesn't want you there, then it is ok to assume the landowner allows you to be there. It is the responsibility of the landowner to inform the public if he does not want them on his property. Otherwise, they can assume he's ok with it.

In return, the landowner is not liable for any injury you may encounter on his property (unless he is injured on an improvement you made specifically FOR the public to use).

On the other hand, if a landowner does exclude the public but allow individuals by permission, then he is liable for any injury they may sustain on any improvement whatsoever while on the property, whether that improvement was meant for visitors or not.

You may disagree with the law. And it is different in other states. But that's the law in Pennsylvania. In some circles it is considered poor form to ask permission. Maybe the landowner doesn't want a dozen people per day knocking on his door. The law is expressly set up for sportsmen to have free access to land, and to legally protect landowners for all liability. That's the assumed status quo. A landowner certainly has a right to change the rules on his property, but he is to make his intentions clear, and give up legal protections in the process.

Agree about respecting the property, though.

 

[mav1958]

pcray1231,

I don't doubt your knowledge of the law. That does sound crazy though. Where does the state draw the line? Can I walk into your backyard and grab a beer if there isn't a sign telling me not to.
Public access to private land always seemed to be the norm in the past. I've always thought PA was unique in that regard.

I've heard of the other extreme out west, where some ranchers actually gate public roads to prevent access to public land that they graze.

 

[Stimey]

on the liability: I have lost hunting access because of this. Years back a women got hit with a stray bullet and landowner was also sued. Even if they aren't liable a lot of land owners have now locked down access rather than deal with a potential law suit if someone is injured on/from their property, even though I believe there is a law in place now that protects them. Anymore, from a landowners perspective they have nothing to gain and potentially everything to lose if something happens.... perception can be stronger than reality.

 

[franklin]

PALongbow wrote:
I respect anyone who follows the right process to obtain access to land. I also understand the landowners own the land and can do anything they like, they pay the taxes and have the right to establish thier rules. I have lost some good hunting areas due to change of mind from the landowner or even changes in landownership. I'm okay with that and move on. Plenty of other areas to hunt and fish if you work at it. Unfortuntly the days of just accessing land at will is over. For some reason the lost art of asking permission is also gone.

Ron

Have to agree. I just posted my land again after some yahoos decided to trespass. I will aggressively enforce.

 

[pcray1231]

Can I walk into your backyard and grab a beer if there isn't a sign telling me not to.

Yes, you can walk into my backyard if I don't let you know in some manner that you are not welcome. That doesn't have to be a sign. It can be a fence, or me verbally telling you. But yeah, it's my responsibility as a landowner to let you know if you are not welcome.

We are an assumed permission state when it comes to simple trespass.

You, though, can't take anything of mine without asking, including the beer. And you can't enter any structures, including jumping a fence, and obviously walking through my front door, or in my barn. That's no longer simple trespass and becomes breaking and entering, or in the case of the beer, theft.

If you were not invited by me, and get hurt on my playground equipment I have for my kids, I'm not liable, even if it was caused by it being in a state of disrepair. I have no duty to warn you of dangers. For me to be liable they'd have to prove I intentionally set a trap intended to harm people. On the other hand, if I post it, then give you permission to be on my property, and then you get hurt on my playground equipment, I may be liable, especially if it was in a state of disrepair and I didn't warn you. By posting and offering permission I created a duty to warn and become liable for negligence in protecting "guests".

What I shouldn't do is build the public anything. If I put up a dock for the people to fish from, even if I didn't invite them personally, I made it for the public to use, so I'm liable for any injury it causes. They have to show that my intent was to make it for public use, though.

 

[ryansheehan]

pcray1231 wrote:

Can I walk into your backyard and grab a beer if there isn't a sign telling me not to.

Let me know when you make it to Virginia, you can have six

 

[Gone4Day]

npaszko wrote:
Has anyone heard of a 2012 Supreme Court Case?

The 2012 SCOTUS ruling on navigability was so narrow its doubtful it applies anywhere but the Great Falls of the Missouri. In oral arguments both sides agreed a waterfall is not an impediment to navigation. They can be portaged around, modified or scaled by a variety of methods without adversely affecting commerce and the transport of goods.

But the Falls of the Missouri was a bit different. It’s actually a series of five waterfalls dropping over 600’ in 10 miles. It took the Lewis & Clark expedition nearly a month to navigate them. Only later did they learn of an overland route that would have cut the time to 3 days. When Montana became a state, that section of river had a history of being avoided for commerce. Only after dams were built did it become navigable.

In the end, nothing really changed, they upheld the status quo. Most of it was federal land anyway, PPL just leases it from them. Montana wanted to claim the riverbed under state law and charge back-rent to PPL but SCOTUS said no.

 

[moon1284]

Get off my lawn...

 

[mav1958]

pcray1231,

Thanks, you learn something new everyday!

ryansheehan,

Thanks for the invite. I get plenty at my son's house in Leesburg. ;-)

 

[testynesty]

Anymore, from a landowners perspective they have nothing to gain and potentially everything to lose if something happens.... perception can be stronger than reality.... Stimey hit this nail dead on the head!!! They don't know you, and they most likely don't care to...
I'm not one to be overly cautious of posted signs, "honestly, I'm not trespassing, I'm just fly fishing"!!!! Ha
But I have been asked to leave property, which I have. But I have also knocked on doors in the middle of nowhere and been greeted with nothing but welcomeness and kindness. It can go both ways and I haven't figured out how's to know which way it will from the end of their driveway....

 

[PALongbow]

pcray1231 wrote:

Landowners wouldn't need to post their land if people would just ask to fish and also respect the property while there.

PALongBow - The law in Pennsylvania is assumed invitation. If there are no posted signs or other information suggesting the landowner doesn't want you there, then it is ok to assume the landowner allows you to be there. It is the responsibility of the landowner to inform the public if he does not want them on his property. Otherwise, they can assume he's ok with it.

In return, the landowner is not liable for any injury you may encounter on his property (unless he is injured on an improvement you made specifically FOR the public to use).

On the other hand, if a landowner does exclude the public but allow individuals by permission, then he is liable for any injury they may sustain on any improvement whatsoever while on the property, whether that improvement was meant for visitors or not.

You may disagree with the law. And it is different in other states. But that's the law in Pennsylvania. In some circles it is considered poor form to ask permission. Maybe the landowner doesn't want a dozen people per day knocking on his door. The law is expressly set up for sportsmen to have free access to land, and to legally protect landowners for all liability. That's the assumed status quo. A landowner certainly has a right to change the rules on his property, but he is to make his intentions clear, and give up legal protections in the process.

Agree about respecting the property, though.

A landowner could also assume that said trespasser is posing harm to him personally and his property. It's probably better to ask permission than to assume access to ones property.

Ron