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  #1  
Old 06-10-2009, 09:05 AM
MtnMike MtnMike is offline
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Default Land Owners?

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
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Old 06-10-2009, 09:11 AM
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silvercreek silvercreek is offline
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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.
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Old 06-10-2009, 09:27 AM
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silvercreek silvercreek is offline
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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
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Old 06-10-2009, 09:28 AM
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schitzngigglz schitzngigglz is offline
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I was under the impression that as long as you are in the water and not on the bank then you are ok.
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Old 06-10-2009, 09:35 AM
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silvercreek silvercreek is offline
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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.
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Old 06-10-2009, 10:14 AM
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MadisonBoats MadisonBoats is offline
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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...
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Old 06-10-2009, 10:30 AM
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silvercreek silvercreek is offline
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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.
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  #8  
Old 06-10-2009, 12:04 PM
gutshot gutshot is offline
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All answers are on the internet, just not easy to find.

http://www.tsc.state.tn.us/opinions/...rfreesboro.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/lpex....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(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/na...aters_list.htm

Last edited by gutshot; 06-10-2009 at 12:21 PM..
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  #9  
Old 06-11-2009, 10:27 PM
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RuningWolf RuningWolf is offline
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Default Per TVA's legal staff

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
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  #10  
Old 06-12-2009, 08:03 AM
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silvercreek silvercreek is offline
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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.
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