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MtnMike
06-10-2009, 09:05 AM
Let me start by saying that this thread may belong in the conservation section or it may not belong at all. I went fishing on the South Holston yesterday for the first time in over a month and had a very unpleasant experience. I entered the river through the River's Way property where I have permission to do so. after about an hour of good fishing with a couple of friends, I decided to move upstream. I was walking the edge of the big island in the middle of the stream when someone began yelling at me from the far bank, he informed me that I was on private property and should go back down stream, he further stated that he owned to the center of the river and that if I wished to go upstream I would have to do so on the channel on the other side of the island. I did not enter into an arguement I simply said OK and walked back down the river and into the office at River's Way to see if they agreed with their neighbor's position.
The director had been investigating this very issue for several hours as I was not the only person who had been told that they were trespassing. This had never been a problem in the past, but the land was sold last fall and apparently the new owner is not happy about the number of people who fish on "his property". There seems to be a lot of questions about who is right on this issue, can we travel up and down the river once we are in the sreambead? In this case, I have permission on one side but not the other, so am I limited to only one side of the river or once in can I move back and forth? The question seems to come down to navigable water and the land beneath the water.
I have been told that the ground level TWRA folks will come down on the side of the landowner, therefore if they show up you will be treated as if you were trespassing. However the folks in TWRA headquarters aren't so sure. Here is the problem, I don't have the time, money, and maybe not even the desire to fight this and I believe that is what he is counting on. If no one fights it, he wins and we all have to stay off of his property. Here is the bigger concern, this effects us all. Most of the South Holston, Watauga, and many other streams are surrounded by private property. I understand not being able to cross private property, but if you are not allowed to move or walk on the streambed, then eventually enough wealthy people buy up all the land and none of us have anywhere to fish. This property used to be owned by a local farmer, oh what I would give to see the bait boys back on his banks.
This doesn't just impact wading, if you can't walk there then you also cannot drop anchor there, and who knows you eventually may not even be able to fish from a boat floating through there. This is a big deal. I hope someone or some organization has the time and the money to fight this. I know that many are afraid to because if the fishermen lose, then the precedent has been set and we have lost the river. That may be so, but as the farms are being sold, I think that we are going to lose the river anyway. Anyone who has fished the Rockhold stretch of river, the Hickory Tree Bridge stretch of river, even the ramp underneath the Weaver Pike Bridge if you move up or down you are on someone elses property. I am afraid that it wont be long till the only place you can fish one of the greatest rivers in the south will be the TVA property below the dam.
On the plus side, I did catch a beautiful 18" rainbow before things turned ugly.
Mike

silvercreek
06-10-2009, 09:11 AM
I have also been told that this is the law. Years ago a friend got caught on the Caney during unexpected generation just below one of the interstate crossings and sought refuge on an island in the river. The landowner called the law and when the water went down, he was cited for trespassing.

silvercreek
06-10-2009, 09:27 AM
MtnMike, I'm going to the south Holston this weekend for the first time. We are renting one of the cabins on Tva Rd south whihc is around the bend below the grates. Being renters we have access of that property. Where is River's way? I do not want to have an encounter simialr to yours? Thanks

schitzngigglz
06-10-2009, 09:28 AM
I was under the impression that as long as you are in the water and not on the bank then you are ok.

silvercreek
06-10-2009, 09:35 AM
The last time I fished the Caney I ran into some posted land below the rest area. I asked TWRA about that thinking there was public access up to the high water mark. I was told that is not the case. Hopefully there is a lawyer who frequents this board who can clarify the law.

MadisonBoats
06-10-2009, 10:14 AM
I believe the quickest resolution and most likely the best; would be to communicate with the landowner in some way. I find it best to use a letter when things could become tense in a situation like this one.... I would explain this situation and your side. Also, explain to the man that you/we respect his ownership of the land and care very much about maintaining it. Also, offer his some tips or to take him fishing. Add in Trout Unlimited, TWRA, and Conservation Groups protect his land value by maintaining stream habitat programs - these are fed by fishing enthusiasts.

I think you did well by doing as he asked and mention that too in the letter. This shows you are respectful and willing to work with him. In turn; I would offer up help or consideration in cleaning and picking up any trash or debris while walking his shoreline.

If that does not work; remind them he only currently owns the rights to the land in a legal manner. No one in this World really owns any of it and we are only her for a short-time and why not share with others cordially when there is not obvious loss of enjoyment to the owner...

The third-step is to...well, I am trying to be a better person so I shall not post...;)

silvercreek
06-10-2009, 10:30 AM
Sounds good if you can figure out who owns the land. For more remote locations, you are not likely to have online access to property records. Heck of a thing to try to do if you are only an occasional visitor to a stream. Anyway, I like to know what cards I hold and as many of his cards before I start negotiating. I do not want to blunder into a bad situation. Costs my friend $500 in bond or go to jail. He happened to have the $500. I would have had to go to jail.

gutshot
06-10-2009, 12:04 PM
All answers are on the internet, just not easy to find.

http://www.tsc.state.tn.us/opinions/tca/PDF/014/CityofMurfreesboro.pdf

The above document has helped me before in finding the exact code. Some key pieces are outlined below......the document is from 2000 so some legal changes may have occured, but I doubt that the legal definition of public ownership changed in a major way without everyone hearing about it. I think I found it before, but I am not sure what the "low water mark" is defined as, especially on a tailwater. I am sure the most expensive lawyer would win that fight in the end....

The ownership of the bed and banks of navigable waters within a
state ordinarily is governed by state law, subject to the paramount
power of the United States to ensure that such waters remain free for
interstate and foreign commerce. The ownership of such lands, as
between the state and riparian owners, is determined according to the
local law of the state in which they are situated.
65 C.J.S. Navigable Waters § 106, at 183 (2000). Navigable waters of the United States are public,7
and their use cannot be interfered with by the state or the riparian owners.


In Tennessee, where a waterway is “navigable” in the legal sense, it is deemed to be held by the state in trust for the citizens. State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746, 752 (Tenn. 1913). As such, neither the waters nor the lands underlying them are capable of private ownership. Id. at 747. “Under Tennessee law title to the bed of a navigable stream, to the low-water mark is publicly held and belongs to the State.” Uhlhorn v. Kaltner, 637 S.W.2d 844, 846


http://www.michie.com/tennessee/lpext.dll?f=templates&fn=main-h.htm&cp=tncode


39-14-405. Criminal trespass. —

(a) A person commits criminal trespass who, knowing the person does not have the owner's effective consent to do so, enters or remains on property, or a portion thereof. Knowledge that the person did not have the owner's effective consent may be inferred where notice against entering or remaining is given by:

(1) Personal communication to the person by the owner or by someone with apparent authority to act for the owner;

(2) Fencing or other enclosure obviously designed to exclude intruders;

(3) Posting reasonably likely to come to the attention of intruders; or

(4) Posting the property, in accordance with the requirements of § 70-4-106 (http://www.michie.com/tennessee/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=tncode&d=70-4-106&sid=34506339.ea821f9.0.0#JD_70-4-106)(b)(1)(B)(ii).

(b) It is a defense to prosecution under this section that:

(1) The property was open to the public when the person entered and remained;

(2) The person's conduct did not substantially interfere with the owner's use of the property; and
(3) The person immediately left the premises upon request.

(c) For purposes of this section, “enter” means intrusion of the entire body.

(d) Criminal trespass is a Class C misdemeanor.
[Acts 1989, ch. 591, § 1; 2005, ch. 297, §§ 1-3.]





I think if you were walking in the water the land owner had no legal action against you, BUT you could have him charged with harassment. Hunter/Fisher harassment is a new one for most POs so you have to explain it to them calmly when the land owner calls them about you. I will not do all the work for you, so you look up your river and see how it is defined........

Aw what the heck I am feeling good today.
http://www.lrn.usace.army.mil/cof/navigable_waters_list.htm

silvercreek
06-10-2009, 12:17 PM
I'll probablyscew up trying to cut and paste this, so here's a reference stating the High water mark seems to apply: www.nationalrivers.org/states/tn-law.htm (http://www.nationalrivers.org/states/tn-law.htm)

gutshot
06-10-2009, 12:23 PM
That is a poor website and I would be dubious of its statements without legal precedent being stated....

...as an example in Ohio land owners own to the middle of a waterway. Try steelhead fishing in Ohio and using the above website as your safety net. You will get owned and arrested.

ChemEAngler
06-10-2009, 12:29 PM
Here is a link to navigable waterways in TN. This list is for rivers that feed the Tennessee River.

http://www.lrn.usace.army.mil/cof/pdf/Tennessee%20River%20Section%2010.pdf (http://www.lrn.usace.army.mil/cof/pdf/Tennessee%20River%20Section%2010.pdf)

South Fork Holston River: (Holston River Mile 142.2) - Mouth to Mile 73.7 Head of Slackwaters of South Holston Lake.

I don't have a map that shows the river miles on it, so you will have to some research to see if River's Way area falls into this section. I believe it does. If it does fall into the section that is classified as navigable, then I don't think the landowner has a leg to stand on if you were standing in the water at the time of the incident. If you were walking on the island, then that is another scenario. I have fished in that area many times before and have never had any trouble with landowners, but I haven't been there since last fall.

MtnMike
06-10-2009, 12:33 PM
I just picked-up a copy of the September issue of Fly Fisherman magazine. There is an interesting article on a recent Supreme Court decision in this issue. The incident in question (Weber River, Utah) happened in June 2000 and the guide was cited for and convicted of criminal trespassing, this case eventually ended up in the Utah Supreme Court and in July 2008 the supreme court reversed the lower courts ruling and gave anglers the right to be in the sreambed after lawfully gaining access.
That's Utah, not Tennessee. Notice it took 8 years and is now being challenged with legislation. I've read a ton of stuff and haven't scratched the surface. I had lawful access and was a long way from the low-water mark, but if he calls the police or TWRA I believe that I will be cited for trespassing. I can fish someplace else, but I believe this impacts anyone and everyone who wants to continue to fish our streams.
Mike

flyman
06-10-2009, 12:33 PM
This will be interesting to see how this plays out. That portion of the river gets used quite a bit, I actually fear for the safety of the landowner.:confused:

gutshot
06-10-2009, 12:40 PM
I had lawful access and was a long way from the low-water mark, but if he calls the police or TWRA I believe that I will be cited for trespassing.
Mike


Sorry if you have no faith in our legal system. The TWRA officers might surprise you, they work for people who hunt and fish.

Maybe you can contact your local TU. They might be willing to help out here, afterall they need all the good stream access PR they can get after the Montana debacle.

Byron Begley
06-10-2009, 12:40 PM
Here is another problem I found by talking to TWRA about this same issue in Townsend. TWRA can not stock trout which are owned by the citizens of Tennessee on private water. So, if the issue becomes a bigger problem they can stop stocking. Sometimes when they threaten to do that, the landowners back off. Sometimes they don't back off and the stocking is curtailed.

Deeds and surveys of property on the Little River describe the property line as the center of the stream unless you own both banks. That property line moves over time as the river changes. You can float through but you can't touch the bottom without tresspassing.

Some States, Cities and Counties remove river bottoms from deeds when they are transferred. Eventually, over decades the problem goes away.

Byron

gutshot
06-10-2009, 12:44 PM
Byron is the little river in the place to which you are referring defined as navigatible?

silvercreek
06-10-2009, 12:46 PM
http://www.americanwhitewater.org/content/Wiki/do-op/id/access:tn Note the specific refernce to the South Holston. This looks like we are back to the landownercontrolling the river bed.

ChemEAngler
06-10-2009, 12:47 PM
Byron is the little river in the place to which you are referring defined as navigatible?
Sorry to jump in, but thought I would add this.

On the link I posted previously, Little River does show as being navigable up to Elkmont!!!

gutshot
06-10-2009, 01:06 PM
Forget about it, as it appears to be a private act. You'll need enough money to buy a politician to get that one changed.

MtnMike
06-10-2009, 01:07 PM
Coming from folks who have past experience with similiar issues I am being told that it will be local law enforcement who comes out, not TWRA. And they usually ask you to leave or be cited for trespassing. It bugs me that I could be cited for trespassing when I have lawful access from the opposite bank. I don't want this to be about one incident, I am concerned for the future ability to fish these rivers. If private landowners can stop you from walking or anchoring on the streambed then eventually we could lose the ability to fish this river everywhere except the upper end where TVA has property.

silvercreek
06-10-2009, 01:36 PM
So I guess you can accesss from the TVA property, wade out to the middle of the river and cast to the other bank, as long as you do not cross the middle of the river. Oh boy.

Grannyknot
06-10-2009, 02:10 PM
So I guess you can accesss from the TVA property, wade out to the middle of the river and cast to the other bank, as long as you do not cross the middle of the river. Oh boy.

Yes, and as long as your fly does not touch the bottom during retrieval. :biggrin:

silvercreek
06-10-2009, 02:33 PM
I only fish dries. See, even the law recognizes the pure form of flyfishing. Just joking. I've slung my share of wooly buggers, etc.

Byron Begley
06-10-2009, 03:31 PM
Little River is designated navigable but I thought that dated back to the days of logging and commerce. I was not aware of the private act. In our one instance two years ago an angler was wading on a section of Little River, the land owner owned both sides of the river and local law enforcement responded to the call. The angler was not cited but asked to leave. I think there are other threads and posts about that situation on this board back then.

Byron

silvercreek
06-10-2009, 04:39 PM
I've tried to find that act through FindLaw etc, but can't. I'd like to read it in it's entirety

gutshot
06-10-2009, 08:21 PM
I saw it as a scanned document from the harvard library / law review from 1907. Google is so hit or miss I wouldn't waste the time looking for it again.

That being said I am sure that this weak law is ripe for challenege if any fishing organisation would step up to the plate for angler's rights.

waterwolf
06-10-2009, 10:33 PM
Most places it is the high water mark. I had a similar situation on the Clinch a few weeks back with an ignorant landowner. I decided discretion was the better option, rather then fight someone who lacked the mental capacity to understand the law, no matter what his deed said, which is superceeded by eminent domain/state law/county law/federal law. Take your pick.

Sometimes it just isn't worth the battle...

BlueRaiderFan
06-10-2009, 10:53 PM
Most places it is the high water mark. I had a similar situation on the Clinch a few weeks back with an ignorant landowner. I decided discretion was the better option, rather then fight someone who lacked the mental capacity to understand the law, no matter what his deed said, which is superceeded by eminent domain/state law/county law/federal law. Take your pick.

Sometimes it just isn't worth the battle...


Wolf, so after all of this, what exactly is the law in Tennessee...I understand the navigable part, but can I get out of the boat and wade and what about the high water mark?

jarrod white
06-11-2009, 12:10 AM
as a landowner on a heavily fished river, I will say that anybody who says that you cannot wade in the river because he owns the river bed is a bone head!
I am not going to open my place to the public, but I will never tell somebody that they can't wade on my side of the river. I would also say that if one is caught by generation, he would be welcome to stay on dry ground until the water is safe to enter, or leave by crossing my property. People will always be people, and that means we will always have idiots in this world.

JW

gutshot
06-11-2009, 12:36 AM
Wolf, so after all of this, what exactly is the law in Tennessee...I understand the navigable part, but can I get out of the boat and wade and what about the high water mark?

This is from a Tennesse court of appeals ruling and explaination of that ruling from 2001. This sounds pretty solid to me, although I cannot find the exact code or a definition of low water mark in the code.

In Tennessee, where a waterway is “navigable” in the legal sense, it is deemed to be held by the state in trust for the citizens. State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746, 752 (Tenn. 1913). As such, neither the waters nor the lands underlying them are capable of private ownership. Id. at 747. “Under Tennessee law title to the bed of a navigable stream, to the low-water mark is publicly held and belongs to the State.” Uhlhorn v. Kaltner, 637 S.W.2d 844, 846



This is the most powerful statement in the entire paper, in my opinion, as it would decimate the rich man's ability to have a private act remove the waterway from the public's trust. Can TU, TWRA, or another organization dedicated to sportsman access to resources fight the south holston designation?

The rule in Tennessee has always been that the question of navigability of a stream
is one of fact which must be determined by a jury.

http://www.tsc.state.tn.us/opinions/tca/PDF/014/CityofMurfreesboro.pdf

silvercreek
06-11-2009, 07:59 AM
Nice summary gutshot. When in doubt observe the low water mark which I would think would include exposed islands. As far as the SoHo, well, watch your step. I still would like to have a more secific idea of where the angler who started all this had the problem. I think others would like to know as well. I wonder if TU or the TWRA could informally come to an understanding with this landowner. There are probably a number of locals who have a vested interest in keeping that river fishable, perhaps peer pressurre could prevail. It would be bad to lose a legal decision.

Grumpy
06-11-2009, 08:00 AM
The funny thing is, TVA or the CORPS has an easement on river properties:confused: I agree with Jarrod, there are some boneheads out there.
Also, the landowner does have the right to exercise his ownership, meaning, you can't wade or drop anchor.

Grumpy

silvercreek
06-11-2009, 08:10 AM
Good point Grumpy. The fact that there is a dam on this river may bring up more regulations and a stronger sense of public control over the stream bed. I also find it interesing that there is a mix of private and public land. For example the cabin we are renting is on private land that extends to the river, yet it is in The Cherokee National Forest according to the map I found (TVA Road South)

waterwolf
06-11-2009, 08:51 AM
There is a myriad of laws around this stuff, and courts are the only way to figure it all out many times. And none of us, especially me wish to deal with that nightmare. Just use your head on the river, and be courteous, over 25 years on rivers all over the country and only once, which was 2 weeks ago have I had an issue with a landowner, so I do not think it is common or something to fret over.

MtnMike
06-11-2009, 08:52 AM
I think this is much bigger than one land owner. There are plenty of land owners on the South Holston with the same attitude. I've never let it bother me too much in the past, because I have plenty of access to the river. This one bugged me because I had legal access from the opposite bank and I am still being told I can't fish or even walk through. Again I know other land owners who feel the same way. I don't want this to be about naming their names or pointing out their property.
My question is about the legal issue, because I am afraid that we are going to lose the privilege of fishing up and down this and other rivers. I have talked with local law enforcement and with other land owners who have called the police themselves and have been told that the law is on their side. They do in fact own to the center of the river and you will be asked to leave or cited. While I have not personally spoken with TWRA, I have been told by those who have that they will handle the same way that local law enforcement would. However, there seems to be a body of law (some of which has been posted here) that supports the fact that the land beneath the water cannot be held in private ownership and therefore the public, once gaining legal access to the streambed can move up and down the river. However, if a landowner calls law enforcement they will treat you as trespassing.
Everyone that I talk with agrees that no one wants to risk challenging this for fear of losing. Therefore we fish where we are allowed and stay away from those places that get all bothered when you get near their property. I have done this very thing for years now. I am just concerned that as more property sells along the river, the fewer places where we will be welcome. I've never attempted to fish anywhere that I didn't have permission first and I don't plan to anytime in the future, but I do enjoy the freedom to move up and down the river. Usually I am not crossing any property lines, but now I realize that private property could mean that I only have permission to fish the side I entered from.
I think that the Supreme Court decision in Utah was very interesting, but no one can know if a court in Tennessee would rule in a similiar fashion. And everyone I have talked to has said we are not willing to risk it, will just fish where the owners are friendly.
This doesn't change my ultlimate concern, but on another note, this should remind us to be kind and considerate and help take care of the property where those land owners are friendly to fisherman. For example, the Rockhold stretch of river, that is private property. I know those folks and they are friendly toward fisherman. But just a thought, someone else owns the farm on the other side of the river. So far they haven't run out and told anglers to stay on their side, but they could. That is my concern.
Mike

kytroutman
06-11-2009, 09:15 AM
I agree with Mike, especially considering the number of "absentee" landowners who are purchasing the river front properties. I'm not sure what has been communicated to some of the new owners as far as easements, property rights, etc. by those selling the land. Clarification can go a long way to settle the disagreements and also avoid a potential blowup in the future.

Green Weenie
06-11-2009, 09:27 AM
as a landowner on a heavily fished river, I will say that anybody who says that you cannot wade in the river because he owns the river bed is a bone head!
I am not going to open my place to the public, but I will never tell somebody that they can't wade on my side of the river. I would also say that if one is caught by generation, he would be welcome to stay on dry ground until the water is safe to enter, or leave by crossing my property. People will always be people, and that means we will always have idiots in this world.

JW


Kudos to you, sir. If more people felt this way, this wouldn't even be an issue.

troutfanatic
06-11-2009, 04:45 PM
The same thing happened to me on the South Holston several weeks ago. I contacted Frank Fiss at TWRA. He said he has had several complaints since mine and that the TWRA lawyer will begin looking into it beginning June 15. I sent him this website that explains the National River Law http://www.adventuresports.com/river/nors/us-law-menu.htm . Maybe we will find out something definite. Mr. Fiss said he has actually had the same experience before. Maybe if more people contacted him, he would know that the problem is widespread. Thanks. Tight lines. David Moore. :smile:

Frank C. Fiss
TWRA - Fisheries Management Division
P.O. Box 40747
Nashville, TN 37204
615 - 781 - 6519 phone
615 - 781 - 6667 fax
Frank.Fiss@tn.gov (Frank.Fiss@tn.gov)

BlueRaiderFan
06-11-2009, 05:54 PM
This is from a Tennesse court of appeals ruling and explaination of that ruling from 2001. This sounds pretty solid to me, although I cannot find the exact code or a definition of low water mark in the code.

In Tennessee, where a waterway is “navigable” in the legal sense, it is deemed to be held by the state in trust for the citizens. State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746, 752 (Tenn. 1913). As such, neither the waters nor the lands underlying them are capable of private ownership. Id. at 747. “Under Tennessee law title to the bed of a navigable stream, to the low-water mark is publicly held and belongs to the State.” Uhlhorn v. Kaltner, 637 S.W.2d 844, 846



This is the most powerful statement in the entire paper, in my opinion, as it would decimate the rich man's ability to have a private act remove the waterway from the public's trust. Can TU, TWRA, or another organization dedicated to sportsman access to resources fight the south holston designation?

The rule in Tennessee has always been that the question of navigability of a stream
is one of fact which must be determined by a jury.

http://www.tsc.state.tn.us/opinions/tca/PDF/014/CityofMurfreesboro.pdf


To be fair, I don't have an issue with wealthy people. I do have an issue with stupid wealthy people. I guy would have to be an idiot to tell me I can't wade in the river once I've anchored my boat. Even an island is stretching it if I'm just anchoring the boat. Now, if I go on the island, pitch a tent, start a fire, spend the night, etc, that would be an issue. A person that has a problem with fishermen, even on their bank, is just asking for laws to be changed against their point of view. In Britain, they have land use rights that I believe anyone can cross their land at anytime, as long as they close gates etc. I don't remember what it's called. Just be reasonable people.

Tippet
06-11-2009, 08:34 PM
I asked this question to a very reliable source. He told me it all depends on how the deed is written. He also said that deeds to properties that lie on public waters are being changed when the properties are sold sometimes but not all the time.

However he said that a land owned before the dam was built, and has remained in the same family (inherited not sold) would have all legal rights to high water mark. In all reality how many properties are still around that have stayed all in the family.

With that said properties bought after the dams were built may have deeds that say the high water mark, but they might be easier fought in court due to the fact they bought the property knowing the public navigable waterway. This is not fact by any means, but I thought it makes a little since.

RuningWolf
06-11-2009, 10:27 PM
As well as others including TWRA’s lawyer a couple years ago. The Clinch and some other tailwaters as well as streams the owners property lines go to the middle of the river. There is no high water mark on the Clinch until you get downstream of 61 bridge. The landowners can charge you with trespassing if you are wading. I have heard of some streams that you cannot even canoe through the owners land if he does not want you to. I know that is the law in Penn. and our waterway laws are very similar.

TVA was trying to get the Clinch declared navigable so they would have more control over water quality issues, however TVA also said that that would not change the ownership of the bottom. The lawyer went into some detail as to why that was, to make it short it would not be navigable for commercial traffic, guides and such do not count, it must be for transportation such as barge traffic ferrying goods.

Most land owners don’t care if you are polite. However I do know of some individuals who have been told never to set foot on some peoples property again.

I also heard that some people who waded up to the pay to fish access where asked to pay the fees, leave or be prosecuted for trespassing. I was told by the above mentioned legal authorities the owner was within his rights

Grumpy
06-12-2009, 07:58 AM
Funny thing, a coonhunter has the right to chase his dog through private property, he can't hunt, but has the right to go after his dog/

Grumpy

silvercreek
06-12-2009, 08:03 AM
One last post on this and then I'm going to shut up. The laws seem more pointed to the low water mark than the high water mark in controlling public access. The stream must be navigable for public access to the low water mark. The South Holston seems to have been declared not navigable, and therefore the land owner owns the streambed to the middle of the river.

MadisonBoats
06-12-2009, 08:32 AM
Is it not interesting how menial and trivial certain issues in life have become! I mean; look how hard it can be at times to enjoy life! Look how divisive Man has made the World.

I just wish things in the World would change and people would change! I am not talking about arguing access rights. I am implying that life has become a journey of fights and arguments.

I used to have a very bad temper and would let it get the best of me. It felt better at times; but, I always looked back in regret that I could have handled things better.

My new intentions in this World are to try and leave it better in some way and to make a positive impact on others.

I understand property owner's reasons too. They may have been robbed, vandalized, or be worried about liability.

I think we do need to work as a group of sportsmen, to lobby and promote positive relations with land owners and the general public. In doing this; we will gain more respect, more results, and more fishing opportunities.

That is my nice lesson for today:biggrin:

waterwolf
06-12-2009, 08:38 AM
I also heard that some people who waded up to the pay to fish access where asked to pay the fees, leave or be prosecuted for trespassing. I was told by the above mentioned legal authorities the owner was within his rights

Complete myth. Personally knowing each and everyone of the landowners who currently and in the past leased out the fishing rights on their properties. I can say with 100% confidence this has never happened on the Clinch. Sure if someone drove in it could happen, or if someone was walking in their field, but never while in the river.

There is one landowner on the Clinch who owns the river bottom to my knowledge and that is Mike Wright near 61 bridge. He actually owns to the oppostie bank, however he told me years ago he had no desire to enforce it.

The gentleman that ran me off is wrong, according to the county, and the state. I have never investigated any other tracts of property as there has never been a reason, as most landowners are amiable people who don't go around looking for a fight with others who are causing no harm. In the grand scheme of things, what happened to me does not matter, I could care less, and cared less at the time. It is what it is, and it isn't worth creating a huge issue over something so incredibly trivial. I went on my way, no worse for the wear, and will respect his wishes out of nothing more then a little courtesy. Some battles just aren't worth fighting, if you know what I mean.

stuart
06-12-2009, 12:54 PM
SO, is the SoHo navigable by the Army Corps of engineers? Look at this site.
http://www.adventuresports.com/river/nors/states/tn-law.htm
Here is the answer to an email I sent the VA DGIF.
The rivers you mention are not in my region but I can answer your questions generally. Navigability of rivers (a legal term which has nothing do with the ability to physically navigate a body of water) is determined federally not by the state. Where ever a river has been ruled navigable, it is open to the public for transportation and for fishing, including wading. You may not fish from anyone's property without their permission nor enter their property for any reason if it is posted against trespassing. Low water bridges may be legally crossed and there should be no fences obstructing passage on a navigable river. The only exception I'm aware of is portions of the Jackson River in Alleghany County which has been ruled navigable but four landowners have obtained a court decision that gives them exclusive fishing rights in their portions of the river.

So if it is navigable you do have the right to be there and NO Law Enforcement can tell you otherwise. Don't take my non-professional advice on this but research it and don't be overran by the land owners. I fully agree with landowner rights and don't want to disobey them but they should respect our rights as fishermen and our rights to river usage.
Here are some others to look at.
http://www.nors.org/us-law-who-owns.htm
http://www.americanwhitewater.org/content/Wiki/do-op/id/access:tn
http://www.sciotoriverfriends.org/corps.html

STU

duckypaddler
06-12-2009, 04:11 PM
While no one could guess how a court might or might not rule, the true word navigable has not been defined by the law. I know many streams we paddle, and especially creeks that are only runnable after huge rains have caused some contention in the past. While I would not tresspass, and wading might be a stretch on navigating. If you are in a boat in any form, I think you would be fine. Feel free to point out the law to any officer as they are usually ill informed and likely to side with the landowner even if you are doing nothing wrong.

http://www.waldensridgewhitewater.com/accessrights.htm Feel free to check this link to give some more insight to the actual laws.

canerod
06-13-2009, 09:16 AM
Mike contact me at mmfarm@ccvn.com dave

stuart
06-16-2009, 09:32 PM
I carry that copy of that email in my fishing lic so if I ever have a problem. It has the warden's name and # on it for any doubters.

STU

uceddiec
06-17-2009, 03:51 PM
I always understood it to mean that no one owns the flowing water unless it comes from a stream on private property or you are on water crossing a secured goverment building. Also the guy I would think would have to prove he owns the land with documents to have you removed. How ever leaving was smart till you could prove him wrong. I found this web link so give it a read and see what you get from it.

http://www.nationalrivers.org/states/tn-law.htm

fourx
06-18-2009, 05:09 PM
I have been yelled at and have had fire arms discharged (into the air) the last time I fished the waterline above some private property on the Clinch.
I found out that it was a drunk OLD man who grew up on his farm on the Clinch's banks. He was drunk and mad that a portion of the land he had given his son in law/daughter had been sold so a fella could put up a cabin and put some "Sports" in it for pay (the roadbed had just been dug).
So, he's mad at the world now and will probably take it out on anybody holding a graphite stick anywhere near HIS property. I heard that before the land sale that the man was about the friendliest person you'd meet.
I just left and will fish the river elsewhere. I actually take the man's side although the 12ga. blast was a little unnerving.

4X

BlueRaiderFan
06-18-2009, 06:03 PM
I disagree. There is never a reason to discharge a firearm to ask a person to leave your property. You are could have sued for damages based on that alone and besides that, it's not moral. Why in the world would that be neccessary? Good God.

troutfanatic
06-18-2009, 06:58 PM
I found this US Army Corps of Engineers website which list all of the navigable streams in Tennessee in the Nashville district. http://www.lrn.usace.army.mil/cof/navigable_waters_list.htm The Obed river, Holston, South Holston, Watauga, Elk, Hiwassee, Ocoee, Clinch, Caney Fork, are all listed on the document. This means that these are considered navigable rivers and landowners do not own the land under them according the Tennessee Law. :smile: I am forwarding this to Frank Fiss at TWRA. Tight lines. David Moore. :p

kylemc
06-23-2009, 01:46 PM
as a landowner on a heavily fished river, I will say that anybody who says that you cannot wade in the river because he owns the river bed is a bone head!
I am not going to open my place to the public, but I will never tell somebody that they can't wade on my side of the river. I would also say that if one is caught by generation, he would be welcome to stay on dry ground until the water is safe to enter, or leave by crossing my property. People will always be people, and that means we will always have idiots in this world.

JW

You are a good man Jarrod. Thanks for letting us camp on your piece of paradise.

Your friend,
Kyle

woolley bugger
06-24-2009, 11:03 AM
Well I hope this guy soon finds out that people have rights to wade the river. It would be a shame if this guy is able to continue to have fishermen cited for trespass. I'm not sure if we've heard the whole story on this.
Squeak Smith is looking into the matter and should have a report for us soon.

We're got a thread running on this matter on the BRFFF

http://www.brfff.com/forum/index.php/topic,5848.0.html

wade safe

woolly bugger

waterwolf
06-25-2009, 08:19 AM
I have escorted people off of property where they were not supposed to be at gun point. I have never shot at anyone, but if someone is trespassing land I own then they will be escorted off in a curt and direct fashion so they do not ever come back.

MadisonBoats
06-25-2009, 09:35 AM
I would expect to be scared off of property that was 'posted' as private.

You usually can get a feel for someone's personality pretty quick through associative thoughts. So, if you look like you are up to no good; then you are probably are up to no good.

If you look like a 'Saturday Afternoon Fisherman'; well, I believe I would be a little less animated in the process and just convey my request that they stay off of the property.

Frustration always results from a lack of control. I think many landowners illustrate this when they become abrasive to fisherman, etc. However, I believe some have warranted worries derived from some past experience.

A man that gets frustrated very easily is one that can be beat at anything very easily and most of the time that man will beat himself...:rolleyes:

Composure is a virtue that we all need to work on. It is very difficult for myself at times due to my adrenaline beating me in the head. However, I have found that by practicing it more often; it becomes more attainable each situation and more rewarding...

ZachMatthews
06-25-2009, 10:32 AM
Hey boys -

Let me put on my lawyer hat here for a second. I am licensed to practice law in Tennessee, but this isn't my area, so take this with a grain of salt. I have researched it for an article we didn't end up writing in American Angler, however.

Back in the 18th century, the U.S. Supreme Court ruled that the public waterways would be held in public trust so long as they were "navigable," subject to the states' rights to vote to make the rule different. The "default" federal rule is this "navigability" rule. However, states can vote to revoke the public's right to use navigable waterways. Typically this happened in states with strong landowners' lobbies in the past.

Arkansas follows the navigability rule. Georgia does, but with tight limits. North Carolina does not follow the rule. Tennessee actually does and takes it a step farther by letting the Corps. define which waters are navigable (as discussed below).

See, the problem is that the term "navigable" is pretty darn vague. In Arkansas and many "blue-collar" or what you might call 'public friendly' states, the rule is that the public can stand on the stream bed to the high water mark of the river on any water that can be floated successfully by canoe. That opens up all the Arkansas tailwaters to fishing and many streams.

On the other hand, in Georgia, the high water mark rule applies only to rivers that are "commercially" navigable, which the Supreme Court of Georgia has recently held means only rivers that can accept enormous 137-foot long barge traffic (i.e. a modern commercial use of the rivers). In Georgia there was a challenge when someone tried to float the river with a raft containing a bale of cotton and a goat (trying to use an 18th century navigability standard), but the court wasn't buying it.

North Carolina is the most extreme state we have in this region: they have revoked the navigability standard or at least limited it to the point that the landowner actually does have the right to have you cited for trespassing while standing in the streambed on any privately-owned water. You can only fish NC tailwaters legally because the Corps. or the State or the TVA actually owns the property they flow over (i.e. the Nantahala below Nantahala Dam).

Tennessee is closer to the Arkansas rule, except it uses the low water mark instead of the high water mark.

Here's the law:

In Tennessee, where a waterway is “navigable” in the legal sense, it is deemed to be held by the state in trust for the citizens. State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746, 752 (Tenn. 1913). “Under Tennessee law title to the bed of a navigable stream, to the low-water mark is publicly held and belongs to the State.” Uhlhorn v. Kaltner, 637 S.W.2d 844, 846 (Tenn.1982).

To be “navigable” such that it invokes the prohibition on private ownership, a waterway must, in its ordinary state, be capable of and suited to navigation by vessels employed in the ordinary purposes of commerce. Cates, 127 Tenn. at 584-86, 158 S.W. at 749. The determination of whether a waterway meets the definition, and is, therefore, navigable is one of fact to be determined by the jury. Southern Ry. Co. v. Ferguson, 105 Tenn. 552, 562-63, 59 S.W. 343, 346 (Tenn.1900).

That last sentence is critical. In Tennessee, technically only a jury can decide whether a piece of water is commercially "navigable" or not. However, the Tennessee courts have, at times, used the Corps. of Engineers ruling on navigability instead. See City of Murfreesboro v. Pierce Hardy Real Estate, Inc. 2001 WL 1216992 (Tenn.Ct.App. 2001).

This is a bit complicated, but when the Federal government pre-empts the state in areas like this, then the state defers to the Feds' laws. In effect, if the Corps says a river is navigable in Tennessee, then a Tennessee jury is not *allowed* to find any other way. What that means is, if the Corps list of navigable waters includes the area you were fishing, then you were not trespassing.

The Corps' decision about a particular waterway can be best figured out by calling the local Corps' office to see if they have made a determination. But, as previously noted in this thread, the Corps' website has a great list here: http://www.lrn.usace.army.mil/cof/navigable_waters_list.htm

Hope that helps explain this complicated area of law. It varies from state to state, but you all have it very good in Tennessee.

Zach

MtnMike
06-25-2009, 11:11 AM
Thanks for jumping in on this one Zach! I had remembered reading something on your site about this very issue once before, but I couldn't find the exact post to make a reference or refresh my memory. My original question truly was about the legality of this issue and the resulting consequences of those answers, because I believe the future fishability of this river is at stake. I regret that this post has been used (even in other forums) to attack the land owner. He asked me to stay off of his property and I did (I never said I was happy about it). My question is can he do that, especially considering that I had legal access from the opposing shore? And if he can, then how long till other land owners begin to do the same thing and we can't fish anywhere on this river? There are many land owners up and down this river, some will grant you access, some will not, some will let you fish once you have gained rightful access some will not. I respect all of that, I just want to know what are my rights? I for one believe this river is too valuable to the public to be held in private ownership. Just my 2 cents.
Mike

ZachMatthews
06-25-2009, 11:38 AM
Mike -

He is entitled to keep you off of his property from the low water mark. You are entitled to walk in the river within the low water mark boundaries. Some places in the river, this wouldn't be possible (deep, straight stretches). But, if you were standing in the bed of the river with water flowing around you and the water wasn't running high, you were not trespassing. I agree that landowners should be respected. Many of them pick up a lot of trash, etc.

However, I have seen a real trend toward gentrification of river banks in Arkansas on the White and Little Red, in Georgia on the Toccoa, in parts of western North Carolina, and yes, in Tennessee. If the landowners had their preference, most of them would bar all anglers from their sight. They bought the land for the peace and quiet and the private access to the river. I get their point of view; I just don't care.

Our rivers and fish are a public resource and should be kept that way. Landowners like this guy need to be politely educated, but if necessary, they should be fought in the courts. Pennsylvania anglers successfully battled the land-snatcher Donny Beaver on the Little Juniata in 2007-08. That kind of battle will have to be re-fought again and again, but it's worth it.

Zach

silvercreek
06-25-2009, 12:33 PM
I vowed to post no more on this, but I must break my word. Zack you have provided some well researched information. I have one question for you. If you will kindly refer to my post (post 17) the american white waters refers to an 1899 Act which specifically declared the South Holston upsream of the Bluff City bridge as not navigable. I never could find that act on the web. Does the Corps declaration of the South Holston as a navigable stream negate that Act? Thanks for your good work.

ZachMatthews
06-25-2009, 12:59 PM
Silver Creek -

Now we're into a discussion of the doctrine of pre-emption, which isn't especially complicated but can get a bit dicey (especially since it's not my area). Generally speaking, when the federal government steps in and completely "occupies a field," then the federal law pre-empts state law. The best example I can think of of this doctrine is with these marijuana legalization movements.

Marijuana is an illegal drug per the federal government. It's scheduled and all that. Some states have voted to legalize marijuana. Their votes do not actually "legalize" marijuana; they simply make it no longer a state-law offense to own or smoke weed. It would still be illegal under federal law and a federal law enforcement officer (such as a DEA Agent) could still prosecute you for possession, etc. The feds have "occupied the field" when it comes to drug interdiction, and the state law just sort of overlays that law.

In this case, it looks to me like the Tennessee courts have taken what they call judicial notice that the feds have occupied the field of navigable waterway determination. Thus, the Tennessee courts will defer to the federal agent (here the Corps of Engineers)'s decision as to what is navigable and what is not. Since the Act you reference is very old, and the Corps has apparently ruled at least some of the South Holston to be navigable since then, then the federal agent's determination would pre-empt the old state law, as long as their determination included the area you are describing.

Now, if the area you are asking aboutis not within the boundaries of the area the Corps declared to be navigable, then we're back to that jury question. Juries decide facts, judges decide law; that's how our system works. The jury would be entitled to decide whether a section (which had not been ruled on by the Corps) was "navigable" or not. The judge would then apply the law that says navigability in Tennessee means you can wade to the low water mark. In this case, Tennessee passed a law that said the section was not "navigable." Judges can overturn old laws, especially when conditions have changed. However, generally speaking a judge is not going to overturn an act of the legislature unless the law is unconstitutional, which this one most likely is not. Otherwise the judge runs the risk of being slapped on the wrist by the Court of Appeals, and they hate that.

If the river is not navigable at all, it is treated like private land. Of course, if it came to it, you could always ask the Corps to make a new determination. They'd file an affidavit with the court giving their opinion and under the pre-emption doctrine the court would give that opinion great deference.

That seems to be the way admiralty lawyers have analyzed Tennessee law and I agree with their analysis.

That site you linked is a good reference. The thing to keep in mind is that nothing you read on the internet is ever going to give you a 100% tailored answer to given conditions on the ground. If you got arrested for trespass, you might be forced to make these arguments in court. I think they're strong arguments, but this is not a black and white area.

Zach

silvercreek
06-25-2009, 01:17 PM
Thanks Zack. It looks like as far asthe SoHo is concerned there are some very complex issues. You insight has been very valuable.

gutshot
06-25-2009, 03:57 PM
Sounds like a good "setup situation" for the TWRA, TU, FFF, or some other organization who wants to get kudos for supporting angler access to waterways.

What I mean by a "setup situation" is that the organization sends in someone with the intent of the landowner challenging that action and then the organization takes the side of the angler.....for legal representation. This is more about the court costs of the fight, not the ticket.

ChemEAngler
06-26-2009, 10:11 AM
As you can imagine the rumors are flying around this issue.

The latest is that the landowner in question only has a problem with a few anglers from River's Way. He said that they were rude to him on multiple occasions, and he decided to teach them and others a lesson by not allowing them to fish on his property. Whether it is his property is still being debated.

However, I would hate to think this whole thing came about because of a couple of disrespectful anglers ruining it for all of us. Just because someone is a member of a lease doesn't mean they are more entitled than others. I participate in two leases on two tailwaters, and have never thought that I should be entitled to fish a stretch of water.

MtnMike
06-27-2009, 09:24 AM
For the record, I understand that the folks at River's Way and the land owner have come to an agreement and are seeking to work together in a good relationship. For that I am thankful. I suspect that it is most likely that someone acted in a fashion that he deemed inappropriate or disrespectful. Again, since I started this thread, I want to make it abundantly clear that I never intend for this to be about one landowner. Maybe I gave out too much information about the location to begin with. I was trying to create a clear picture about my experience. There was no arguement, He asked me to leave, I said OK and left. There was no angler in the stream, I wasn't even fishing, just walking up the stream next to the island. I confess that I thought about saying something, because I was in disbelief, but thought better of it and decided to go in the office and see what was going on. I was very frustrated about the implications of this, the idea that I could have legal access to enter the stream from the opposing bank but could be limited to one side of the river was a very frustrating thought to me. I am glad that the two parties seemed to have come to an agreement in this situation. But surely, we can all see why this would be a great concern for all anglers ability to fish this great river, not in this one spot but all the way up and down the stream. Even the trails that go down stream below the grates will eventually bring you into "private water".
Mike

FishNHunt
06-29-2009, 06:19 PM
I have had run in's with land owners on this subject and have asked several "officers" what the regulations were and the answers will be as clear as mud to you when they get threw talking... (the way they like it I believe). The best one came years ago while duck hunting on Douglas lake. If you've never seen Douglas lake in the winter we'll, it's pretty close to dry. We arrived, set up well outside the required 100 yards of a visiable dwelling and went to shooting as legal light set in. Shortly there after a man came down and commenced to give us a good thrashing about being on his land. I said "sir we are not on your land". He informed me again that I was and ordered me to leave. Then right before I lost my cool I asked him "sir how much land to you pay taxes on"? His responce "that lot up there" I then said go get back on your lot before I call you in for hunter harrassment. He left and shortly there after a big pretty boat marked with TWRA pulled up. The warden stepped out of his boat and looked at our blind now setting 2 inches deep in water because we didn't want to move it as the water came up and said "you fellas aren't tresspassing anymore". The man had called in on us and the warden told us that we were indeed tresspassing before the water came up. The landowner has rights to the water line. I was pissed and expressed my opionin and it was that someone could in affect only pay property taxes on one acre but as the water goes down have control of (in some places) hundreds of acres. His responce... yep! Now on Tellico and Fort Loudon it's totally different... it's to the high water line.

Steve Wright
06-29-2009, 07:21 PM
Douglas is different than any other TVA impoundment.........due to the rush & need for power for Oak Ridge during WW II ,TVA did not purchase the land per se . They have a flood easement only .......so original property owners retain their land to the river channel.The land was not cleared in the normal fashion.
When Cherokee was built....farms were bought,but savy owners retained agricultural rights on some parcels....yes some people have built fine homes not realizing that a garden can be grown in their front yard by heirs of those ag rights.


Cherokee & Douglas Dams are identical ( power house design ) to save time they used design of Cherokee to build Douglas Dam .

The Swann family was very influential & almost stopped the impoundment .....until they were privately told the need.

JimmyC
06-30-2009, 12:41 PM
"Better river access a goal of TWRA's John Gregory"
http://www.knoxnews.com/news/2009/jun/28/better-river-access-a-goal-of-gregorys/


Not a lot of info, only the age old "we're going to be working on it." Now would be a time for input, ya'll.

ZachMatthews
07-02-2009, 02:17 PM
Steve -

First, are you the author of "Ozark Trout Tales"? I really admire that book.

Second, do you have any further background into that story, of the Swanns being told of the need for Oak Ridge? It's very interesting. Are there any books on this?

Zach

stuart
07-03-2009, 08:53 PM
Oak Ridge? As in the Nuke place? That is a really neat pc of history there. And this family was told of it while in the makings in order to convince them to sell? That is so cool.

STU

cockeye valdez
07-13-2009, 11:36 AM
I fish the area in question almost every week, have for several years even before the land in question was purchased by the new owner who is not from the area or state. I can tell you that he is determined to keep everyone off his property. I've heard that he has called T.W.R.A. to the property and they agreed with him and told the fishermen they were tresspassing. Another land owner, a very nice gentleman told me that his property lines go to the center of the river. However he will allow fishermen to walk up the river but does not give them permission to walk across his property.
The owner causing the problem has developed the property and spent a significant amount of money doing so, my guess is that he has the funds to fight a legal challange. I suggest we (someone) contact T.W.R.A. and have them post an explanation similar to the ones that list seasons and slot limits.

gutshot
12-23-2009, 08:55 PM
Any news on this issue?

Steve Wright
12-25-2009, 07:19 PM
I met him a couple of months ago, nice guy;just protective of his property.

gutshot
12-25-2009, 08:58 PM
I guess the question was, is it his property legally (below the low water line) and what has the TWRA lawyer decided about the issue?

Steve Wright
12-25-2009, 10:12 PM
Call TWRA & ask them. I'm sure you will get a definitive answer.