Posting Property vs. Stream Access

[Jimbo87]

SNJChef's post sparked a new question for me...and this question is not meant to circumvent/belittle your situation, I am very sorry to hear that you are having to deal with these issues.

That being said, I'll present the following scenario: Stream X runs the course of several miles, all of which are ATW. It so happens that a couple hundred yard or so length has "Posted: No Hunting/Fishing as it is private property etc." It is not posted on either side of this property.

Would this simply mean you can not walk through this person's property to fish the stream that it borders? As the waters in the commonwealth are owned by the commonwealth and no one individual, what would stop a fisherman from wading up stream through said "Posted" zone?

In effect, I'm assuming the property owner may forbid you to stand on the land that borders the stream, but can not stop you from standing in[/] that particular section of the stream?

However, my friend and I have talked about this before and he presented this argument: He is a white water river guide out west and said that out there it's different in that while no one individual owns the water, they do own the land underneath that water. This would then stop you from wading through the water because technically you are standing on their property.

From this standpoint you would have to then figure out just where that property line ends under the water etc., creating confusion and probably an argument that would extend for quite some time. Any thought on how this works in Pennsylvania? If you got through all of that - thanks!

 

[trout624]

Depends on the navigability of the stream. If navigable, the state owns the water and soil underneath the water in public trust and public can fish. Further, if navigable, the property owners property line begins at the low-water mark. If non-navigable, the property owner owns the soil to the middle of the stream (if he owns only land on one side), but could own the soil of the entire stream. (if he owns land on both sides of the water). So, like your buddy told you, the state "owns" the water, but a non-navigability determination precludes the public from touching the soil without potential trespassing.

Navigability is ultimately determinable by courts, so unless you know the water is navigable, it's best to get landowner permission, or else you could be sued for trespassing.

The Navigability of water is determined by measuring whether the water was utilized for some kind of trade/commerce dating back to the original land grants from the state, so it's a pretty hairy/fudgy/historical/arguable test relying on ancient evidence.

Also, check out some prior threads on here, it's been talked about extensively.

I

 

[m0nk]

Yeah, it's safer to assume in PA that if water flows along posted private property, don't fish there, even if you're wading. It's entirely likely that the land-owner owns that part of the stream accordingly to PA law.

 

[pcray1231]

Correct on the navigability part.

Navigable: State owns the water and the streambottom.

Non-navigable: State owns the water only, but not the streambottom.

Wading would be illegal on non-navigable water, presuming your standing on stream bottom, which is privately owned. You are permitted to float down, so long as you don't touch bottom or rocks or anything of the like.

As far as where the property line ends, if the stream is the property line, then the line is the middle of the stream. If the landowner owns both sides of the stream, then you can't go anywhere in that stream.

 

[Jimbo87]

It would seem that way according to what Trout624 said - most of the creeks/streams that I fish in SE PA would more than likely be determined non-navigable as they're small enough that there is no way that they would have ever been used for for any type of commerce.

 

[henrydavid]

Every situation is different but I know of a couple properties like that. The land owner does not have the property line at the creek posted, however they do not want anglers parking in front of their property and walking across it back to the stream.

I would enter the stream at public access and if you come up to an area that is posted at the stream then turn back, if not proceed on and if you are confronted excuse yourself and tell them you did not see any posted signs.

My logic is that any property owner that is vigilant about keeping fishermen from wading the stream along their property will have it clearly marked at the stream, if not then it's okay to wade through.

 

[pcray1231]

Yes, a history of commerce, or the ability to be used for commerce, is the test. Back in the old days, they used a bunch of these streams for commerce.

Literally hundreds of streams in PA have been declared navigable by the PA Congress. These declarations hold no legal water on their own. Though most of the time they were made because the stream in question was being used for commerce, so they are a nice piece of evidence in your favor.

But the only way to get it legally tested is to ignore signs, get charged with trespassing, and then take it to court and fight it. And of course, you stand a chance of losing. Only a handful of streams have actually been tested in this manner, though to date, the public has won every single one of them.

 

[Jimbo87]

PCray - I'm not sure what your source of information is, but where did you find it? Furthermore, let's put this added twist into the scenario: The same stream X, but 2 miles up from said "Posted" area, there is a Millhouse that uses the stream for power.

This would be a commercial use of the stream, thus deeming it navigable. The big question - that mill only uses one section of the stream, so can one section a stream be declared navigable and the rest not? Or, is it the case that if at any point on said stream is declared navigable the rest is automatically included?

 

[trout624]

Jimbo- "Rivers are not determined to be navigable on a piecemeal basis. It is clear that once a river is held to be navigable, its entire length is encompassed." Lehigh Falls Fishing Club v. Andrejewski

 

[Lonewolve]

Jimbo, using the water to create water power isnt navigable by any means, navigate or using the water to travel or transport goods by way of a body of water is what the navigable terms implies sheesh

 

[Lonewolve]

There is a literal book that contains the names of most of the waters that were navigable or used in such manner , This book an the decision of a judge an historical expert witnesses are what conclude what is navigable in the Commonwealth of Pennsylvania. the Lehigh battle was an earlier example as was the recent Lil j /Spruce creek / beaver debacle.

 

[Jimbo87]

Trout624 - "The Navigability of water is determined by measuring whether the water was utilized for some kind of trade/commerce dating back to the original land grants from the state, so it's a pretty hairy/fudgy/historical/arguable test relying on ancient evidence. "

PCray - "Yes, a history of commerce, or the ability to be used for commerce, is the test. Back in the old days, they used a bunch of these streams for commerce."

So Lonewolve, you may see how I arrived at that particular example. Regardless of whether it's a gristmill, shipping company, water skiing training center, my intended point doesn't change - and Trout624 answered that. You can't choose which section of the stream/creek/river is, and is not navigable to cater to your individual wants.

 

[Jimbo87]

Did some digging, came up with this as a general FAQ:

http://fishandboat.com/water/public/faq_public_waters.htm

Since there is no list of public waters, I wonder how (aside from a battle in court) you could find out what waters near you are in fact public?

 

[SNJChef]

Naw man no issues, my situation is we own 50 acres and the stream runs almost down the middle of the property. so they would have a long hike to get to the stream to fish by my cabin and bother me. I will allow fishing on my property if and when someone asks me. As far as is it legal my sister inlaw is a lawyer said it was, but really i don't care. I doubt that the individuals causing the problems can afford to fight it. very few people know the stream not stocked, just the A-holes that know about it don't deserve to be on it.

 

[pcray1231]

jimbo, apparantly I was not clear enough. Commerce not meaning a stationary grist mill. Commerce meaning:

"According to the United States Supreme Court in The Daniel Ball in 1870, waterways are “navigable in fact” when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in customary modes of trade and travel on water."

It is true, that to date, the courts have held that a stream navigable in part is navigable in it's entirety. Thus, anywhere where it retains it's name. So, the entire Allegheny River, for instance, is navigable, even where it's a headwaters brookie stream in Potter County.

The streams that "have been decided" as navigable, currently, are Allegheny, Mon, Ohio, Yough, Susquehanna, W. Br Susquehanna, N. Br. Susquehanna, Juniata, Schuylkill, Delaware, Lehigh, and Little Juniata.

It is not the case that a stream is assumed to be non-navigable unless it's been said otherwise. If it's not been determined either way, it is undetermined. The landowner is taking as big a risk in putting posted signs up as the fisherman is by ignoring them. And many deeds were simply wrong as drafted, navigability trumps a deed.

None, as in zero, have been decided to be non navigable. There are no definitely non-navigable waterways in PA. The vast majority remain legally "undecided" and are waiting for their day in court. Though of course some common sense has to come into play, if you can step across it, it probably ain't navigable!

Here is an interesting link from the early days of the PFBC. It's interesting reading regardless, but at the end, starting on page 137 they list all of the streams that had been declared navigable
by the state legistlature as of 1915. Like I said, this holds no legal water on its own. However, in the Lehigh and LJR cases, the judges used these declarations as evidence that commerce did indeed take place on said streams, thus favoring a win for the public. There are literally hundreds of them, including many that are very small indeed. It's a bit tough to figure out what's what, though, as the names of some streams have changed.

http://books.google.com/books?id=cngWAAAAYAAJ&dq=Laws%20of%20the%20commonwealth%20of%20Pennsylvania%20%2B%20%22cedar%20run%22%20%2B%20public%20highway&pg=PA146#v=onepage&q&f=false

 

[Chaz]

One of the tests for navigability is a stream being used for commerce, but I don't think a mill would qualify. What is meant by commerce in this case is, is cargo hauled downstream or upstream on the waterway. Was it ever used for travel by boat is another test.
Taken to the extreme, nearly every stream in the Commonwealth was at one time used to float logs(commerce), but that in itself doesn't neccessarily mean the courts will rule in favor of navigability. However, The courts have never taken away the Commonwealth's right to the water. This goes back to the beginning of the Commonwealth and Colony. And the Commonwealth can never give up it's right to the water. So in a way it's a taking by the landown to close his water, but he can't close it anyway unless he owns the land on both sides, he can only close his side. But you have to know this before you walk through.

 

[henrydavid]

I'm sorry but I really doubt most land owners in this situation are even familiar with navigatable waters. A simple knock on the door or a note left with your name address and phone number could clear up the issue.

Who needs lawyers and their bills,..... or the government for that matter.

 

[quillfly]

just thought of an awsome idea get a group of guys to run around the state paddleing all the streams offering guided trips , use public put ins and take outs boom commerce and travel and with the depth clearcence of a yak anything over six inches of water will be nav

 

[pcray1231]

Not sure a bunch of yaks would be considered commerce. It'd be a hard sell to say that recreation, even if there's money involved such as guiding, is a form of "trade" over a public highway. They're looking for a history of commercial transportation of goods.

 

[Lonewolve]

Commerce of the times was usually animal skins dried meat maybe corn traded between the Lenni Lenape or Shawnee this is how far back some streams are noted to my understanding