trespassing or not

[roland]

I`ve asked several people whether or not it`s trespassing when you enter a stream with public access and wind up up or down stream possibly on another`s property? 1/2 say the owner doesn`t own waterway and it`s ok and the other 1/2 don`t know.Any insight would be a great help.

Thanks,
Roland

 

[ian_brown]

Here's my understanding of PA law: it depends on whether the waterway is navigable. If not, the property owner can own the stream bed and bar access. If it is navigable, the property owner can bar access to the banks of the stream, but not to floating or wading.

 

[JackM]

ian is right, and in PA, though you could be civilly liable for trespass, you cannot be prosecuted criminally unless actual notice against trespass has been given through signage or orally. Most landowners will post signage if they object to access along the stream. I generally assume permission if there aren't signs, but if the creek seems to run through a developed area of property, I'll try to seek permission unless I have other reason to believe the landowner allows fishing access.

 

[Gone4Day]

JackM wrote:
ian is right, and in PA, though you could be civilly liable for trespass, you cannot be prosecuted criminally unless actual notice against trespass has been given through signage or orally.

I’m not the lawyer, but I think criminal trespassing is different from civil trespassing and signage doesn’t have much to do with it. Criminal trespassing usually involves actual damage or theft. Civil trespassing is more like a speeding ticket.

 

[JackM]

While an intent to do harm may make an act of trespass criminal without signage, signage is crucial to criminal liablity where there is no such intent:

18 Pa. Statutes § 3503. Criminal trespass.

* * *

(b) Defiant trespasser.--

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;
iv. notices posted in a manner prescribed by law or reasonably likely to come to the person's attention at each entrance of school grounds that visitors are prohibited without authorization from a designated school, center or program official; or
v. an actual communication to the actor to leave school grounds as communicated by a school, center or program official, employee or agent or a law enforcement officer.

Except as provided in paragraph (1)(v), an offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. An offense under paragraph (1)(v) constitutes a misdemeanor of the first degree. Otherwise it is a summary offense.

(b.1) Simple trespasser.--

A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place for the purpose of:
threatening or terrorizing the owner or occupant of the premises;
starting or causing to be started any fire upon the premises; or
defacing or damaging the premises.
An offense under this subsection constitutes a summary offense.

A speeding ticket is a summary offense. A misdemeanor, on the other hand, is the grade for simple drug possession, simple assault, petty theft, etc.

 

[Padraic]

ian_brown wrote:
Here's my understanding of PA law: it depends on whether the waterway is navigable. If not, the property owner can own the stream bed and bar access. If it is navigable, the property owner can bar access to the banks of the stream, but not to floating or wading.

I believe only two waterways have been declared navigable by the courts. The Little J and The Lehigh. Even the Delaware, Susquehanna, Ohio and the other great rivers of PA that support motorized traffic, could, in theory, be posted. And until a court case opened them up again... stay out!

From a realistic perspective, if a landowner does not put up signs at the border of his property where it abuts public land, he'd best be understanding of people wandering on. If you're asked to leave, leave. Don't argue. Be polite and you may get invited back. It's happened to me.

The only place I got yelled at in that situation was when I crossed into private property where someone had pulled down all the signs. The landowner was angry at the situation more than me, but he was so angry he had plenty to spill over. In that case, getting in his face would have just made everything worse. The only thing that got me upset was the guy said there are no trout in the stream... I guess the suckers there look kinda funny. Like great big brown trout that someone stocked in there....

 

[Wulff-Man]

As the others have said, if the stream is "navigable" the landowner can only own up to the bank and you can wade as long as you stay within the high water mark (this was the basis of the Little Juniata case). If it is not "navigable" the landowner also owns the stream bed, so you can not set foot on the stream bed if he doesn't want you to. Now, if the other side of the stream is open to the public, that brings up an interesting question. I believe that the landowner only owns to mid-stream, but maybe this could vary with the deed. The landowner doesn't own the water, so you should be able to fish from the public side. Another interesting issue is whether you could canoe through a non-navigable private stream without trespassing. I believe you can, although that then brings up the question as to whether the stream may be navigable, if you can easily float it for long distances.

Concerning Padraic's statement about rivers being officially declared navigable in court, I believe that if they meet the general characteristics of a navigable stream, they are considered navigable. They don't have to be declared navigable. This is only necessary if there is a dispute big enough that someone wants to take it to court. In the Little Juniata case the state told Beaver that it was their opinion that the stream was navigable and he should desist from claiming it as his own. He continued to dispute this, but I'm not sure who then eventually filed the court case.

The practical issue is whether the stream you want to fish is navigable. Although it may be arguable whether "small" creeks that you can canoe long distances are navigable, I wouldn't be getting into arguments with landowners along small creeks over the issue. Even for streams that are as big as the Little Juniata, if the landowner doesn't want you wading through, I would avoid it or check with the PFBC. Maybe they don't really have the right to keep you out, but they may think they do, and it may take a letter from the authorities or even a court case to settle it. But I wouldn't worry about wading the Dealware, Susquehanna, and Ohio rivers alongside private property (except in the small headwaters, but where does that line begin???!!!).

 

[Bamboozle]

Here is the navagability issue on the PFBC website:

http://www.fish.state.pa.us/water/public/faq_public_waters.htm

I use the signage/ask/run method.

If I see a sign I go else where; if I don't I look for someone to ask; if I don't find anyone where there is no sign, I fish. If I hear gunshots, I run!