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Thread: Wading Rights

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    Wading Rights

    The other day I was wading in a river and near a bridge. There were two gentlemen on the bridge and we got into a discussion about wading and legal issues. It seems as though the land on one side of the river is posted by the owner. Okay, so I know no one is allowed to cross his land in order to get to the river. However, these gentlemen said that the owner owns the property 1/2 way into the river, that includes the river bottom, and you are not allowed to wade on his side! Now I don't know if this river is considered as 'navigable' or not. But this is the first time I've heard about this type of law. On other rivers I've fished, yes I know that there's a place on the Salmon River that has a separate ruling, like the branches and main stem of the Delaware, the Beaverkill, Willow, Neversink, Conhocton, Genny and others, I've always thought that wading is permitted up to the 'high water mark'.

    So, do any of you KNOW the facts about this? Can you reference and cite the specific ruling or regulation. I'd like to be able to respond to this landowner because I'd like to fish there again and would like to know what I'm getting into or maybe should stay out of.

    Also, how do you find out if a river is considered 'navigable' for the purpose of refering to land ownership up to the 'high water mark' ?

    Thanks.

    Allan

    Allan

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    Re: Wading Rights

    This is from the NY DEC web site:

    "Q. May a person travel in a boat or canoe on a waterway which is posted?

    A. Yes, but travel may not include fishing. A person in a vessel has a right of passage on a navigable waterway, even if the bed of the waterway is privately-owned and is posted. A waterway is navigable if it is capable, in its natural state and ordinary volume of water, of transporting, in a condition fit for market, of floating logs or manufactured or agricultural goods to market. A navigable waterway need not be navigable in both directions, nor need it be navigable 12 months of the year. Furthermore, a waterway's navigability is not destroyed by rapids or other temporary obstacles so long as the rest of the waterway is otherwise navigable. Where such obstacles exist, the right to public navigation authorizes a boater to get out of the vessel and walk alongside the boat to get around such obstacles, or to portage around such obstacles, even over private property above the mean high water mark, so long as the portage is by the most direct and least intrusive safe route possible. The right to navigation does not otherwise authorize the public to go on private land above the mean high water mark, even for access to or egress from a navigable waterway. A 1997 ruling of the New York State Court of Appeals indicates that the public right to navigation does not include the right to walk on the bed of a waterway to fish, or to anchor for the purpose of fishing where the bed of the waterway is privately-owned; or to fish while navigating through privately-owned waters."

    So it seems the public has the right to float and get out to avoid obstructions on navigable waterways but not wade or fish when the land is posted - even on the riverbed.


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    Re: Wading Rights

    That is why NYS has to purchase public fishing rights - if it was public already there would be no need to do that. And the PFRs only apply to fishing and do not give permission to camp, hike, swim, or do anything other than fish.

    I think in a select few rivers - like the Hudson - NYS has taken ownership of the river. But that is something you cannot count on.


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    Re: Wading Rights

    Mayfly, after I read your post, a particular spot on the upper Beaverkill (above Roscoe) immediately came to mind. There is a state parking lot and access trail to the river. At the point where the trail meets the river there are Public Fishing Stream signs on both banks of the river. However as you wade downstream you will reach a point where there are only Public Fishing Stream signs along the far bank, and POSTED signs along the near bank. Many years ago a friend and I waded down into this stretch, thinking we were okay since we were wading in the river, albeit closer to the side with the POSTED signs. After a while the landowner came out and sternly told us that we had to leave. We politely explained that we thought we could fish there because we accessed the river from public property and waded down, remaining in the water at all times. He explained that he actually owned to the center of the river, and said that was why the public fishing stream signs were only on the far bank at that point. As far as I know, many years later the posted signs are still there.

    Quote Originally Posted by Mayfly View Post
    Can you reference and cite the specific ruling or regulation.
    I'd like to be able to respond to this landowner because I'd like to fish there again and would like to know what I'm getting into or maybe should stay out of.
    I don't believe there is any one regulation which applies to every situation.
    From what I understand many factors can come into play.
    I know you mentioned you are familiar with the Douglaston case on the Salmon, but this link provides more insight into property ownership along rivers and ownership of the streambed. It also discusses the Navigable-In-Fact vs Navigable-In-Law concept.

    liibulletin: Douglaston Manor, Inc. v. Bahrakis

    IMHO the only way to really be sure of where you can legally wade is to check the deed for that particular property, to see if it states ownership to center of river, to the high water mark, or to the low water mark. For example I know for a fact that there are property owners on the West Branch of the Delaware in NY (who own property on only one side of the river in this case) whose deeds state that they own to the normal low water mark. This would mean to the water’s edge during normal flows. In PA along the Delaware I believe the deed would instead read to the high water mark; i.e. to the point where a recent storm might have deposited debris up on the bank.

    You also might be able to check with the DEC to verify that the landowner in question does actually own to the center of the streambed. I believe the DEC investigates complaints of improper posting of property. On the other hand I would also say that most property owners know exactly what their rights are, and more often than not are the ones who are correct when it comes down to who can legally access their property.


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    Re: Wading Rights

    IfliFish,

    I think I know the area you were refering to. I want to understand this. Am I correct in thinking that it would be ok to wade on the half of the river that had the public fishing signs on? If so, are you allowed to fish the other half as long as you don't wade there? It sounds kind of silly to me, but there are many laws that are. Thanks in advance for any info.


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    Re: Wading Rights

    Quote Originally Posted by flyman23 View Post
    IfliFish,

    I think I know the area you were refering to. I want to understand this. Am I correct in thinking that it would be ok to wade on the half of the river that had the public fishing signs on? If so, are you allowed to fish the other half as long as you don't wade there? It sounds kind of silly to me, but there are many laws that are. Thanks in advance for any info.
    I'm no lawyer. Not even a para-legal. Just guessing that, according to what's been described, the landowner owns the bed of 1/2 the river. He doesn't own the water, fish or anything in the water. Therefore, while you may not be permitted to 'wade' or walk on the streambed, you may be permitted to fish it by being on the 'legally permitted side' and casting across the centerline. Just don't use nymphs along the bottom!

    By the way, who owns any island in a river? Is it too determined to be owned by its location relative to the bank(s), a separate parcel of land, or owned by the state(or federal) government?

    Allan

    Allan

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    Re: Wading Rights

    Islands are funny. Most of the islands in the Delaware between NJ and PA above Treasure Island were taken over years ago by the Feds to settle disputes between NJ and PA.


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    Re: Wading Rights

    I've had one problem fishing the Delaware in 20 yrs. The island at Equinunk. About 5 yrs ago I was wading and fishing like I had done a hundred times, and down to the river comes the nephew of Mr. Frosch. Now, I had never had a problem with Mr. Frosch, fished both banks for years, I had heard stories of shots being fired at boats, but could never confirm this. This gent says he is the nephew of Mr. Frosch and owns the bottom of the river and the island. I had seen posted signs there and was told the signs were there to keep campers out. We had a confrontation about the Kings Grant to his family many years ago to which I replied "I think we kicked the King's ass a number of years ago." He was not happy at all and threatened to unleash his dog on me. I asked him how tall was his dog at the shoulder, he asked why, and I replied, I will get in the water deeper than his shoulder is tall and that he would find his dog downstream with his lungs full of water. This set him off pretty good and he started screaming and yelling and all that good stuff. He was going to build a fishing lodge and control this section of the river, yada, yada, yada. Well, I have yet to see construction comence, and I still fish that section of river, mostly at o'dark thirty in the morning, and have never had a problem since. That's not to say that he is not watching and a new confrontation will take place. I love that spot and will continue to take my chances, good thing it's big water!


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    Re: Wading Rights

    Quote Originally Posted by iFliFish View Post
    I don't believe there is any one regulation which applies to every situation.
    From what I understand many factors can come into play.
    I know you mentioned you are familiar with the Douglaston case on the Salmon, but this link provides more insight into property ownership along rivers and ownership of the streambed. It also discusses the Navigable-In-Fact vs Navigable-In-Law concept.

    liibulletin: Douglaston Manor, Inc. v. Bahrakis
    Given this excerpt from that link:


    "The Second Circuit finding that the Salmon River is navigable-in-fact grants to the public the right to navigate its waters, but the right to navigate does not extend to fishing since the river does not qualify as a navigable river at common law. The court finds that the easement the state retains to allow the public to pass through the waters "does not involve a surrender of other privileges which are capable of enjoyment without interference with the navigator" quoting Smith v. Odell, 234 N.Y. 267, 272 (N.Y. 1922).

    After deciding this threshold issue of law, the court analyzes several other issues: whether the state of New York had the power to transfer this ownership right and if in fact such ownership right was transferred by the state in the 1792 grant. The court held that the State has the authority to convey such property rights based in part on evidence that New York often purchases public fishing rights from private riparian owners of navigable-in-fact rivers. The court examines the language used to convey the property in 1792 and finds it "sufficient to transfer to the grantee the bed of the river and associated exclusive right of fishery." Douglaston at para. 17 (citing Trustees of Brookhaven v. Strong, 60 N.Y 56, 71-72 (N.Y. 1875)).

    Unanswered Questions
    The Douglaston decision may cause private owners along navigable-in-fact waters, where the land grant does not specifically include a reservation to the state of private fishing or other rights, to begin to exclude the public from such non-navigational activities. This could present a great hindrance to the public enjoyment of those rivers. The State may, in turn, increase efforts to acquire the fishing rights on these rivers for public use.
    The court seems to emphasize the fact that the Plaintiff owns the riverbed. When the private owner on a navigable-in-fact river does not hold title to the riverbed, does the right to exclude the public end at the river's edge? Does ownership of property on only one side of the river also carry with it private fishing rights? The court does not clarify which facts are significant and what may trigger an exception to the rule. Also, it remains to be seen how the court will treat rights which are even further removed from navigation, such as swimming.

    Fishing guides in particular now stand to lose a great deal of business if this decision is endorsed by many private riparian owners. On the other hand, a decision against the Plaintiff in this case would have removed private incentives to maintain river beds and fish populations."

    I'm not sure that fishermen want to push the issue.
    Tickets are just tickets, but do we really want to tick off landowners so much that one (or a group) decide that they want to get it back into the courts(as if they need to) to get the "questions" answered and have ANOTHER precedent in their favor? "OH, it wouldn't neccessarily get that far..." I hear you say. Well, two like minded individuals could decide who would be the plaintiff and who would be the defendant and get it to court... and try their hardest to keep it there. Enough money does not seem to be a problem for some who own property on the D.

    Of course, just my opinion.

    MY advice... tread lightly (pun intended).

    John
    Some circumstantial evidence is very strong, as when you find a trout in the milk.--Henry David Thoreau

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    Re: Wading Rights

    I guess this raises the valuable point that much of our fishing is on private land and is at the discretion of the landowner. Therefore, maintaining friendly relations with landowners is important to our sport.

    Down in NJ fishing streams are increasing being posted. One issue is of course is more and more people building homes along streams. However, the number one reason given for closing a stream is littering - which should be something easily fixed, but sadly it is not.


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    Re: Wading Rights

    Quote Originally Posted by flyman23 View Post
    IfliFish,

    I think I know the area you were refering to. I want to understand this. Am I correct in thinking that it would be ok to wade on the half of the river that had the public fishing signs on? If so, are you allowed to fish the other half as long as you don't wade there? It sounds kind of silly to me, but there are many laws that are. Thanks in advance for any info.
    That's how I've approached the area since then. The only problem is that the deeper slot where most of the fish hold, runs along the public side. So to wade on that side means you're standing on top of most of the fish.


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    Re: Wading Rights

    I love that "kick the king's ass" quote! Great soundbite!!! Check out the other current post titled "New York State Hits Bottom," which sounds like the guy you describe below.

    Quote Originally Posted by babyblue View Post
    I've had one problem fishing the Delaware in 20 yrs. The island at Equinunk. About 5 yrs ago I was wading and fishing like I had done a hundred times, and down to the river comes the nephew of Mr. Frosch. Now, I had never had a problem with Mr. Frosch, fished both banks for years, I had heard stories of shots being fired at boats, but could never confirm this. This gent says he is the nephew of Mr. Frosch and owns the bottom of the river and the island. I had seen posted signs there and was told the signs were there to keep campers out. We had a confrontation about the Kings Grant to his family many years ago to which I replied "I think we kicked the King's ass a number of years ago." He was not happy at all and threatened to unleash his dog on me. I asked him how tall was his dog at the shoulder, he asked why, and I replied, I will get in the water deeper than his shoulder is tall and that he would find his dog downstream with his lungs full of water. This set him off pretty good and he started screaming and yelling and all that good stuff. He was going to build a fishing lodge and control this section of the river, yada, yada, yada. Well, I have yet to see construction comence, and I still fish that section of river, mostly at o'dark thirty in the morning, and have never had a problem since. That's not to say that he is not watching and a new confrontation will take place. I love that spot and will continue to take my chances, good thing it's big water!



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