Public or Private?

[fisherboy3]

I was fishing an unstocked section of a stream today upstream of any stocked areas. Casting to rising fish i heard a voice behind me ask how I got down to where I was. I told the guy I had walked the stream down from the public section of water. Apparently where i was fishing he owned the propert behind me. I had asked if he owned the other side of the stream, he said no. What are the laws reguarding public vs private? I thought you could wade up to the high water mark if the landowner only owns one side.

 

[ryansheehan]

Depends on weather the waterway has been deamed navigable. I dont know where one would find that list. But if the guy had a kings land grant like the folks on the Jackson river then he owns everything.

 

[RyanR]

ryansheehan wrote:
Depends on weather the waterway has been deamed navigable. I dont know where one would find that list. But if the guy had a kings land grant like the folks on the Jackson river then he owns everything.

I don't think a King's land grant would amount to a hill of beans in Pennsylvania because I don't believe the Pennsylvania courts legally recognize it like the Virginia courts do.

 

[Swattie87]

If one side is open and one side is posted you can stand in the stream (up to the midpoint of the stream) on the open side. You cannot stand or touch the stream bottom in any way (including with your fishing gear) from the midpoint of the stream on, on the posted side. Regardless of navigability the water itself is public, so you can fish it in theory...provided the stream bottom is not, so you can't touch it in any way (including with just your fly) if it's posted.

As others have mentioned if it's been declared navigable by the courts in PA, then you can stand on either side up to the high water mark. Generally speaking only the biggest rivers have been declared such by the courts, so odds are it hasn't.

In your case, whether you were in the right or wrong likely depends on exactly where in the stream you were standing...if your feet were on the open side of the midpoint you're ok, if they were on the posted side of the midpoint you were trespassing.

 

[Maurice]

Swattie87 wrote:
If one side is open and one side is posted you can stand in the stream (up to the midpoint of the stream) on the open side. You cannot stand or touch the stream bottom in any way (including with your fishing gear) from the midpoint of the stream on, on the posted side. Regardless of navigability the water itself is public, so you can fish it in theory...provided the stream bottom is not, so you can't touch it in any way (including with just your fly) if it's posted.

As others have mentioned if it's been declared navigable by the courts in PA, then you can stand on either side up to the high water mark. Generally speaking only the biggest rivers have been declared such by the courts, so odds are it hasn't.

In your case, whether you were in the right or wrong likely depends on exactly where in the stream you were standing...if your feet were on the open side of the midpoint you're ok, if they were on the posted side of the midpoint you were trespassing.

^ +1

 

[PALongbow]

Depends on the stream. If the stream is deemed non-navigable then it means just that however there may have been exclusions such as commercial use which don't apply to fishing. I own land on Fishing Creek and pay taxes on it including the stream bed property. There was no exclusions on my taxes to deduct the stream bed so basically if you are standing in the stream or the stream bank you are trespassing and it will be treated as such.

Also did you ever hear of asking permission to fish? For some reason that is a lost art. People just assume the creek and land is open for use....maybe its due to the entitlement society in which was have now a days.

Ron

 

[pcray1231]

The "verified" navigable list is Allegheny River, Monongahela River, Youghiogheny River, Ohio River, Susquehanna River (including north and west branches), Juniata River, Little Juniata River, Schuylkill River, Lehigh River, and Delaware River.

That's "verified", meaning no question about it. There's another 100+ streams that the DCNR lists as navigable, including some notables such as Penns Creek, Elk Creek, Spring Creek, Fishing Creek, etc. But the DCNR list is based on ancient state declarations of those waterways as public highways. Since navigability is a federal thing, those declarations carry no legal weight. However, they were typically made out of need, to protect an existing navigation route from some private threat. Capability of commercial navigation is the test under federal law, and hence a history of commercial navigation is proof of that capability. The state declarations can be and have been used as evidence of that history. But it doesn't end up on the "verified" list until it's tested in court and a judge agrees.

In most of these cases the deed may show a landowner owning the streambed. But if there's a history of navigation, its federally navigable, and federal law predates the deed and grants the public rights. Thus the deed was made in error and the unlawful parts are void. So for all these streams, the answer currently is "maybe it is, maybe it isn't", but somebody needs to trespass, get taken to court, and choose to fight it in court on grounds of navigability in order to find out who's right and who's wrong. The DCNR list could be regarded as a list where, if you did go to court, you'd have some evidence to show and thus be more likely to win.

This stuff about "King's grants" are in a few select cases where the deed to the property was granted by the King of England prior to the Declaration of Independence. Hence, despite legally meeting requirements for navigability, the deed predates the federal navigability law and thus trumps it.

As for the law, the above is right:

If navigable: Streambed is public property up to the ordinary high water mark.

If not navigable: The streambed is private. If the landowner posts, you can float through, but not touch bottom, or fish. In the event that the stream itself is listed as the property line on the deed, the landowner's property extends to the middle of the stream.

 

[fisherboy3]

So I was trespassing. The water I am sure is non-navigable. I asked him if he wanted me to leave and he said no it was fine. He was just tired of bait guys leaving beer cans and bait containers. By the end of the conversation between us he he said if it was just myself it was fine.

 

[pcray1231]

Also did you ever hear of asking permission to fish? For some reason that is a lost art. People just assume the creek and land is open for use....maybe its due to the entitlement society in which was have now a days.

Agreed that, whether posted or not, it's in good form to ask for permission on private property. This is out of common courtesy, not law.

Legally speaking, though, unless you have some indication to the contrary, it is indeed ok to "assume" it's open for use. And in many areas of the state, that's not only the law, but it's the accepted culture, and it's certainly not a "new" thing, if anything the courteous gesture of asking despite a lack of signs is what's new.

Pennsylvania is an "implied consent" state. Meaning a lack of indication to the contrary is implied consent by the landowner for the public to use the land. Indication to the contrary is usually signs, but it can take other forms, including verbal. And note that not all states are implied consent states. There are 29 implied consent states and the other 21 are essentially the opposite, where lack of consent is to be assumed until indicated otherwise.

On the other hand, many hunters and fishermen, even when faced with posted signs, will claim some BS like "it's not signed", or "he doesn't have signs every 30 feet". That's all BS. Those are written as guidelines for landowners, not requirements. If you see a sign, even just 1 lonely sign with no signature, you've been notified that this landowner does not consent to trespassers. And it's on you to figure out his property lines and stay out of the whole of his property.

 

[fisherboy3]

Almost all of the water I fish is public. I try to stay away from posted areas because I was not 100% on the whole public/private thing. But last night did let me get a good look at a 20+ inch brown that ate my emerger, went to land him and he got caught up on some dead branches in the water. Broke me off in the slow water..

 

[PALongbow]

It really boils down to the individual as to their time and money spent in the court system trying to defend their actions that were brought on by trespassing. The landowners should also know their boundaries and how the stream was classified. The first thing I did was had my land surveyed and dug into the stream classification. Really the good old fashioned way is to just ask permission to access the property and never assume its free range.

Ron

 

[pcray1231]

Law:

(b) Defiant trespasser.--

(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(i) actual communication to the actor;

(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders;

(iii) fencing or other enclosure manifestly designed to exclude intruders;

http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.035.003.000..HTM

Precedence:

Open lands that are not posted or fenced off are presumed open for recreational use by the public, especially in rural counties where hunting and outdoor activities are common.

Commonwealth v. Sweeley, 29 Pa. D. & C.4th 426, 433 (C.P. 1995)

 

[ryansheehan]

RyanR wrote:

ryansheehan wrote:
Depends on weather the waterway has been deamed navigable. I dont know where one would find that list. But if the guy had a kings land grant like the folks on the Jackson river then he owns everything.

I don't think a King's land grant would amount to a hill of beans in Pennsylvania because I don't believe the Pennsylvania courts legally recognize it like the Virginia courts do.

I know, just being salty that one of the best tailwaters in my state has been mostly cut off.

 

[pcray1231]

And, by the way, here's the DCNR list of "public streambeds" (meaning navigable). Note the disclaimer:

NOTE: The waterways identified herein as having publicly-owned streambeds have been compiled by the Commonwealth over time from various sources. Identification is based upon information believed to be reliable and persuasive evidence of such ownership. The identification of a waterway as having a publicly-owned streambeds herein is not intended to be a final determination that the waterway is navigable under state or federal law. Moreover, other waterways not identified herein may be navigable under state or federal law, in which case their streambeds would also be publicly-owned. The Commonwealth reserves the right to add or remove waterways identified as having publicly-owned streambeds as additional information becomes available.

i.e. we did some research, and based on that research, this is what "WE" think is navigable and could be defended as such in court. But we don't get a say in it, and most haven't had their day in court.

http://www.dcnr.state.pa.us/cs/groups/public/documents/document/dcnr_009715.pdf

 

[PALongbow]

I think the court system and everyone involved really doesn't want to deal with this issue because if all of a sudden the state says the creeks ares now navigable the landowners will be requesting tax exemptions on their land. This would be no different than when a township, state or municipality takes property to put a road through....taxes on that particular land that was taken would be now be exempt. I see a big loss of taxes if this were to happen...

Ron

 

[pcray1231]

That's certainly true, but I doubt that's why its not dealt with.

It's just that you can't lump em all together and say lets decide on a whole lot of them at once. Each one has to get challenged individually. And you don't go to court unless there's a disagreement to challenge.

i.e. if a member of the public trespasses on one of the above, and chooses to put tens of thousands of dollars into fighting it legally instead of a few hundred to pay a simple fine. Or if some interest decides to sue a landowner. Those cases DO happen (see LJR), but fairly rarely. When they do, then there's a lengthy court case about that stream and ONLY that stream, with both sides losing money in the legal fees.

In most cases there isn't a problem, or not enough of a problem, that anyone really can justify ponying up the cash necessary for what will ultimately be minor gain if they win.

For instance. That short little posted stretch below Paradise on Spring Creek. Is Spring Creek navigable? I believe so, Bellefonte was a port town for gosh sakes. So is that posted stretch illegal? You bet. But it's what, 200 yards? Is it worth it to put thousands of dollars into gaining 200 yards? No, and not only for the money, but it'd start a war with landowners. Landowners and fishermen alike would group together. Many of those landowners own land on streams that aren't navigable and don't currently post, but would after fishing groups pick a fight with them. We could win the court battle and gain 200 yards of Spring Creek but lose far more than that in the grand scheme.

So it typically only gets fought when there's a particularly agregious violation by someone with less than noble intentions that makes people want to fight them. Like Spring Ridge Club and the LJR.

 

[PALongbow]

I think there is enough open space for people to fish. People who are worried about small posted creek areas should either help pay the taxes on the posted land or buy land for themselves. For some reason people in today's society feel entitled to everything including private land access.

Ron

 

[franklin]

Swattie87 wrote:
If one side is open and one side is posted you can stand in the stream (up to the midpoint of the stream) on the open side. You cannot stand or touch the stream bottom in any way (including with your fishing gear) from the midpoint of the stream on, on the posted side. Regardless of navigability the water itself is public, so you can fish it in theory...provided the stream bottom is not, so you can't touch it in any way (including with just your fly) if it's posted.

As others have mentioned if it's been declared navigable by the courts in PA, then you can stand on either side up to the high water mark. Generally speaking only the biggest rivers have been declared such by the courts, so odds are it hasn't.

In your case, whether you were in the right or wrong likely depends on exactly where in the stream you were standing...if your feet were on the open side of the midpoint you're ok, if they were on the posted side of the midpoint you were trespassing.

Be careful. Often the property line is not the stream. May have been at one time but since stream beds move a lot of property boundaries were updated to actual mapable boundaries. Same with road beds.

 

[Nymph-wristed]

PALongbow wrote:
I think there is enough open space for people to fish. People who are worried about small posted creek areas should either help pay the taxes on the posted land or buy land for themselves. For some reason people in today's society feel entitled to everything including private land access.

Ron

I don't know if it's necessarily entitlement, though if it is there are some contributing causes, perhaps... Despite the caveats to the contrary all over the documents, if a state posts a list of wild trout streams, for example, and presumably uses license revenue and/or taxes to do the assessments, fishermen may do their research (even Google maps drive bys and "street view" hunts) then drive two hours to find nothing but new posted signs on a new "discovery." I don't fish posted water and don't encourage it in any way, but I can see the dilemma for some guys. On the other hand, if I am a land owner and see in a published doc or web page that a new Class A/B is running through my previously unposted land, I may fear a new influx of fishermen, and post accordingly.

One question for pcray because the legal information is good stuff (thanks!): I was told years ago that the line of posted signs form a virtual barrier. Is this true? So, if I don't cross a line of postings, I am not a definitely not a defiant trespasser--although I may inadvertently encroach on private land?

Of course, as PALongbow rightly said, asking permission would take care of the gray area.

 

[Swattie87]

franklin wrote:
Be careful. Often the property line is not the stream. May have been at one time but since stream beds move a lot of property boundaries were updated to actual mapable boundaries. Same with road beds.

Good point franklin. We'll add an "In theory" to my post. I think in practical purposes the midpoint of the stream would likely still be used in many cases.