Most of the time, anglers are in the right in confrontations with property owners over access to waterways.
But there’s little consolation in being dead right.
Such was the fate of Paul Dart Jr., who was floating Missouri’s Meramec River with friends with this summer. After stopping at a gravel bar, they were confronted by a property owner, who told them to leave.
Dart asserted that he had the legal right to be there. The property owner disagreed, and, according to witnesses, shot him dead.
In addition to being charged with second-degree murder, the shooter almost certainly was wrong regarding his property rights, according to Missouri case law. But Dart still is dead.
Most times, property owners are content to hurl obscenities and/or squirt water at those of us whom they believe are trespassing. But a confrontation regarding access can turn deadly just as suddenly as can an incident of road rage. Consequently, you are best advised to motor --- or paddle--- away promptly if you feel threatened. Far enough, at least, to be out of firearm range. Then call police, if you believe that you are in the right, and especially if you have been threatened with bodily harm.
But how do you know if you are in the right? On most lakes and reservoirs, the issue usually is clear-cut. Contrary to what they may think, property owners do not own the water that adjoins their land. Yes, local regulations may restrict how close you can get to a private dock or boat house. If you accessed the water legally, however, you have the right to fish most of it. Still, don’t assume anything. Be certain of the law before you challenge those who tell you to leave.
For flowing waters, and the oxbows associated with them, the access issue is far more complicated and rights vary from state to state. Generally, we have the right to fish navigable waters from a boat, no matter who owns the adjacent property.
One overarching constant in this muddled mess is the definition of navigable waters, according to the U.S. Code of Federal Regulations:
“Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.”
Still, a seemingly endless array of variables can play into the determination by states and courts of what flowing waters are “navigable” and public, as well as to what extent. For example, property owners in Virginia assert that anglers cannot wade a stretch of the Jackson River because they own the river bottom based on historical grants dating to the 18th century, before the colonies became a sovereign country.
In a case involving the Missouri River, meanwhile, the U.S. Supreme Court ruled last year that the state of Montana has the right to protect the public’s use and enjoyment of rivers, regardless of who owns the bottom. At the same time, though, the court decided that a utility that operates hydroelectric dams does not have to pay “rent” to the state for the river bottom.
Under the “equal footing” provision of the Constitution, states have title to the beds of navigable rivers within their borders. But that ownership is dependent upon the navigability of the water at the time of statehood. The court agreed with the utility that this particular stretch of the Missouri was not navigable when Montana became a state in 1889 and so could be privately owned.
Down in Mississippi, where anglers like to fish oxbows, the public’s right to a waterway applies to water between the natural banks. “The public cannot legally step out of the boat and onto the dry bank or bed of a public waterway without landowner permission,” said the Mississippi-Alabama Sea Grant Legal Program.
“If the water has flooded beyond the natural banks, that is not public water.”
In many states, the “ordinary high water mark” indicates the limit to which anglers can go. Consequently, they are in their rights to use gravel bars when rivers are low during summer, as long as they accessed the river legally.
That likely was the case for Paul Dart Jr. and his friends who were floating the Meramec River. But, sadly, an ill-advised confrontation made him dead right.