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  #11  
Old 11-03-2010, 10:48 AM
Bfish Bfish is offline
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It acknowledges that waters can be privately owned. My understanding of the case law in TN, is that flowing waters being privately owned is not well defined. This "cornerstone" amendment provides blanket protection to the privateers. No wading is IMO going to become common and no floating areas may also be come more routine.
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  #12  
Old 11-03-2010, 11:47 AM
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NDuncan NDuncan is offline
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Quote:
Originally Posted by Bfish View Post
It acknowledges that waters can be privately owned. My understanding of the case law in TN, is that flowing waters being privately owned is not well defined. This "cornerstone" amendment provides blanket protection to the privateers. No wading is IMO going to become common and no floating areas may also be come more routine.

You are wrong, unless the US supreme court ever reverses its decision that all navigable rivers in the US are 'held in trust by the states' for the public up to the high water mark. They have also determined that any river is navigable, even only by a kayak/canoe or other small craft and that barriers, such as dams or waterfalls do not make then unnavigable if it is possible to take out, and put in around the barrier. The supreme court has also made the rulings on the basis of use for recreation, fishing, and navigation. You may also be on the shoreline below the high water mark. Even if the river flows though private property, the river, up to the high water mark belongs to the public. This is a federal standard and no state law may supersede it.

http://www.adventuresports.com/river...tes/tn-law.htm
http://www.waldensridgewhitewater.com/accessrights.htm

Tennessee state law:

69-1-101. Navigable waters are highways.
All navigable waters are public highways, including those declared navigable by special law.
[Code 1858, 1299; Shan., 1808; Code 1932, 3074; T.C.A. (orig. ed.), 70-101.]


Declared Navigable waters in TN:
http://www.lrn.usace.army.mil/cof/pdf
/Tennessee%20River%20Section%2010.pdf

http://www.lrn.usace.army.mil/cof/pd...River%2010.pdf

I remember earlier this year Byron was talking about the possibility of some townsend property owners wanting to close the river because of tubers, but if you notice in the first link, Little from elkmont down to its mouth is designated as navigable, and thus even if townsend property owners have a deed that says they own up to the middle of the river, they don't. They only own to the high water mark, as determined by the State Appeals court back in 2000.
http://www.tsc.state.tn.us/opinions/...rfreesboro.pdf
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  #13  
Old 11-03-2010, 12:13 PM
Crockett Crockett is offline
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I have to go with Byron on this he said the ammendment was a great thing for hunters and fisherman and repeatedly urged us fly fisherman to vote for it in his fishing reports. I am quite sure he wouldn't do that if it was really some sort of sly trick to restrict wading across private waters.

Read today's fishing report it may help some of you better understand the importance of this: http://littleriveroutfitters.com/pag...ing/report.htm
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  #14  
Old 11-03-2010, 12:44 PM
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ChemEAngler ChemEAngler is offline
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I too consider it a victory. In these times when everybody is looking for someone to file a lawsuit against, I think it is in our best interest to be proactive and address the issues before they become reality.

Click on the link below for a lengthy discussion about property owner's rights relating to streambed ownership on the SoHo:

http://littleriveroutfitters.com/for...Holston+Wading

I believe that there was a similar discussion regarding Little River in Townsend, and Byron stated that in Townsend some property owner's do actually own the river bottom.

I don't see how this amendment affects a set of laws regarding property ownership, those of which are completely unrelated.
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  #15  
Old 11-03-2010, 03:31 PM
Bfish Bfish is offline
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Quote:
Originally Posted by ChemEAngler View Post
...

I don't see how this amendment affects a set of laws regarding property ownership, those of which are completely unrelated.
If the stream flows through private property, it could be closed to wading and possible float fishing. The amendment acknowledges that property "right" in a legal sense and I don't agree with that property right.
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  #16  
Old 11-03-2010, 04:04 PM
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NDuncan NDuncan is offline
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Quote:
Originally Posted by ChemEAngler View Post
I believe that there was a similar discussion regarding Little River in Townsend, and Byron stated that in Townsend some property owner's do actually own the river bottom.

I don't see how this amendment affects a set of laws regarding property ownership, those of which are completely unrelated.
The deeds may in fact state that the property line goes to the middle of the stream. In the Murfreesboro case I posted above, the courts ruled that the deeds description didn't matter, because the land in question was on the Stone's river, and was declared navigable, just as LR from elkmont on down has been, and thus the stream to the high water mark belonged to the public. The issue in the case was the city was purchasing a strip of land along the river for a greenway, the owner wanted to be paid for the acreage of the land + 1/2 the river, but the city said the river wasn't his to sell and the courts agreed.

The main issue when dealing with this is that even when the law is on your side, it may require going to court to prove it. And I doubt anyone wants that hassle. I think the real issue with regard to the property intent of the amendment is hunting. It is saying that even though you have the right to hunt, you can't just hunt on anyone's private property.
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  #17  
Old 11-03-2010, 04:07 PM
Bfish Bfish is offline
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Quote:
Originally Posted by NDuncan View Post
You are wrong, unless the US supreme court ever reverses its decision that all navigable rivers in the US are 'held in trust by the states' for the public up to the high water mark.
Unfortunately there is about 3x the number of declared navigable streams that have not been deemed navigable in TN. Including streams such as Harpeth, Collins, Calfkiller, Caney, most of the Sequatchie, headwaters of the Buffalo, and most any tributary creek.

Your correct though, on navigable rivers we generally have the right to wade to the high water mark, although even that is sometimes controversial.

Also just because one can float a stream in a boat does not make it navigable. In most cases it takes a legal opinion, which usually requires interstate commerce to have taken place in the past. Rarely is float-ability a consideration.

EDIT, ah you posted while I was typing.
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  #18  
Old 11-03-2010, 08:08 PM
Crockett Crockett is offline
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Well I had no idea there was this problem with it. I was one of the 90% of Tennesseans who were duped into voting for this I guess. Thanks for enlightening us Bfish I just wish you had posted something about this before the vote though.
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Last edited by Crockett; 11-03-2010 at 09:43 PM..
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  #19  
Old 11-03-2010, 10:20 PM
Bfish Bfish is offline
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Quote:
Originally Posted by Crockett View Post
...Thanks for enlightening us Bfish .....
Just my interpretation. Hopefully I am wrong. The intent of the amendment is good, I just think the wording is weak.
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  #20  
Old 11-04-2010, 07:35 PM
Jim Casada Jim Casada is offline
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Todd--It's basically a pre-emptive move, and something like a dozen other states have taken similar steps (our amendment here in S. C. passed big-time yesterday). It's doesn't totally cast things in concrete, but it does serve to make anti-fishing and anti-hunting forces have additional barriers to surmount in their ongoing attack on these rights. If you want scads more detail, go to the National Shooting Sports Foundation's web site or do some other Internet research.
Oddly enough, your argument or concern is almost precisely the one our highly liberal local newspaper used in coming out in opposition to the amendment.
I follow these things pretty closely, and anyone who thinks our sporting rights aren't under assault isn't apying enough attention.
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