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Waterway Rights info on PA streams

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2013/9/6 11:40
From Hunker
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Me and my buddy were discussing waterway rights on streams in pA and he told me that you can fish any stream as long as your in the water and not on land which would be trespassing, I know you can't fish 'any' stream as long as your In the water, but how do you know what streams are which? . I know the little J had this issue recently and a few others. My friend recently got back from elk creek at Erie and he said that some propery is posted but you have to stay in the water to avoid trespassing. Any info info on this would be appreciated

Posted on: 2013/10/11 2:54


Re: Waterway Rights info on PA streams

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My understanding is the water has to be considered “navigable” and you must stay within the high water mark. Those a lot smarter than me can hopefully confirm or correct this.

Posted on: 2013/10/11 6:04
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Re: Waterway Rights info on PA streams

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From Westmoreland County (near fairgrounds)
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Rolf has the answer. I will add that navigable means the waterway was historically used for commerce. Ultimately it may take litigation to settle the question of navigability on a particular water (as it did on the Little J, thank-you Alan Bright!).

I doubt any of the Erie tribs can be demonstrated to be navigable.

Posted on: 2013/10/11 7:31
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Re: Waterway Rights info on PA streams

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Historical research showing that it was used for commerce. Being able to float a canoe down the creek means absolutely nothing.

The two notable cases were the Little Juniata and the Lehigh.

In a waterway that doesn't meet this requirement the landowner who owns the bank also owns out to midway of the creek. The other bank owner has the other half.

If the stream ran through an area which was private on one side, and public on the other, you would be within rights to stand in the middle of the stream, but could not access or even stand, on the far side of the stream, regardless of "high water mark."


Posted on: 2013/10/11 11:00
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Re: Waterway Rights info on PA streams

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From Pretty much everywhere at some point, Thorndale today.
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Yeah, the DCNR put out a list and map of streams it holds to be "navigable". Of course, they are not the final say, a court is. And only 10 or so have been determined to be navigable in court, while the DCNR's list had literally hundreds, meaning most of them remain legally undecided on the question of navigability.

i.e. if the DCNR has your stream on its list, yet there is posted land. Then the only way you can settle it is to trespass, get caught AND prosecuted, go to court claiming navigability as your defense, have the losing side appeal a number of times, till finally it see's a higher court who will make the determination. When that happens, if the landowner loses, they have no penalty, other than court fees. If you lose, you have court fees PLUS the trespassing fine. But hey, the DCNR will be on your side, so, there's that.

The courts look for historical evidence of commerce. That's all that matters. What "commerce" entails is up for debate. Does it include a regular raft route to transport goods? Probably. How bout if somebody did it just once? What if goods weren't on a raft, but they floated logs or barrels of oil downstream? What about a small stream where they built a splash dam in the logging heyday?

The DCNR list is based on historical PA legislature "Declarations of Public Highway". Most are from the 1800's when water was the primary mode of travel and commerce, and the PA legislature made the declarations to protect a commerce route as a favor to someone or other. As it turns out, these declarations do not, on their own, hold legal water to show a stream as navigable, but they might be pretty good evidence to use in your favor should you want to put yourself in front of a judge, especially if you can dig up WHY they were declared public highways by the state congress.

There have been, as I said, about 10 cases over time. In every instance where this has seen a court, the stream has indeed been declared navigable. Private interests have never won in PA. That said, the 10 that have seen their day are the clearest, most straightforward examples. Delaware, Lehigh, big and little J's, Allegheny, etc. I can't imagine anyone trying to claim they AREN'T navigable. But some of these smaller streams, like, say, Pine and Elk Creeks (tributaries to Penns), are both indeed on the DCNR's list, but probably a much tougher sell to a judge.

Posted on: 2013/10/11 11:10

Edited by pcray1231 on 2013/10/11 11:29:03
Edited by pcray1231 on 2013/10/11 11:30:47


Re: Waterway Rights info on PA streams

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From Pretty much everywhere at some point, Thorndale today.
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Here's the DCNR map, for what it's worth. They hold all of these to be navigable. Again, they don't get the final say, so this doesn't mean that a judge would agree!

http://www.dcnr.state.pa.us/forestry/ ... ublicstreambeds/index.htm

None of the Erie tribs are included. But nor is the list all inclusive, i.e. a stream may not be on the list and still be "navigable".


Posted on: 2013/10/11 11:20


Re: Waterway Rights info on PA streams

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From Landenberg, PA
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they have to be navigable AND the landowner doesn't hold a Crown Grant which specifically lists the river bottom - that was the case in NY on the Salmon and in VA on the Jackson, where in both cases the private interests won.

There are crown grants in PA but none have been publicized to be owning the river bottom too - so far...

Posted on: 2013/10/11 11:36
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Re: Waterway Rights info on PA streams

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Interesting. I'd never heard of a Crown grant in PA.

Basics of the law is that a "regular" deed in PA may say you own the streambed, but national law also says that navigable waterways are public property. So in the case of a navigable waterway and a landowner claiming ownership, it's an ownership dispute with both sides having legitimate claims to be the rightful owner.

In such a case, whoever was granted ownership FIRST wins. And in most cases, deeds were given out after the Declaration of Independence, so, the public wins.

In the case of a Crown Grant, well, that grant predates the U.S. becoming a country. Hence the Crown Grant wins.

Posted on: 2013/10/11 11:39


Re: Waterway Rights info on PA streams

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Quote:

geebee wrote:

There are crown grants in PA but none have been publicized to be owning the river bottom too - so far...


On what stretches of stream? And how do you know this to be the case?

Posted on: 2013/10/11 12:15


Re: Waterway Rights info on PA streams

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2012/10/24 19:22
From Landenberg, PA
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Quote:

troutbert wrote:
Quote:

geebee wrote:

There are crown grants in PA but none have been publicized to be owning the river bottom too - so far...


On what stretches of stream? And how do you know this to be the case?


PA was one of the original 13 colonies where King George granted lands to English nobles. That was stated in the Recitals of the Jackson and Salmon river cases.

Crown Grants don't necessarily cover streams, it can be any land - and unless they specifically mention the river bottom (which some do) or in the Brewster Mass. case the sea bottom, they don't apply as PA like most other states hold the stream & sea bottoms in Trust as a commonwealth.

However, they are a form of legal title which is not negated by the Declaration of Independence - so if you held title to the stream bottom as a result of a Crown Grant of lands which was later subsequently legally transferred, the State cannot lay claim to it.

In the Jackson river case the State did lay claim to it but the private interests sued and won.

The Douglaston Salmon Run in Pulaski on the Salmon river is actually a Crown Grant - that used to be Douglaston Manor - and they own the river bottom because the title deed specifically includes it - hence you can float the DSR but you cannot anchor, wade or touch bottom.

the reason that some do was the gathering of freshwater mussels and eels, and in the case of the sea shore oysters and kelp.

i've been following these cases since 2008 when i was fly fishing the beach on Cape Cod and a homeowner repeatedly tried to insist that i leave 'his' beach on a number of occasions.

he eventually called the cops which i warned him not to do. so i had him arrested and cautioned for harrassment - the Cape cops are well versed in the law. which i subsequently carried a copy of in my license holder - which quite a few anglers do now since it was posted on Stripersonline a lot people printed it off.

As i mentioned earlier, you can fish in front of the Kennedy Compound if you don't mind an audience - but not John Kerry's place i think...






Posted on: 2013/10/11 13:11


Re: Waterway Rights info on PA streams

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I used to do a lot of research on properties that were part of the original Penn leases. I never heard of a "Crown Grant" in Pa.

Posted on: 2013/10/11 13:23


Re: Waterway Rights info on PA streams

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I kind of did know the Crown Grant story in NY, though not in as much detail as you described.

Like I said, I never heard of any in PA.

But thanks for the info, it's something to keep an eye out for.

As for PA, crown grants aside, on all of these streams I kinda see us, the public, as holding a trump card, so to speak. That doesn't mean I think we oughta declare war and fight for every inch that is rightfully ours. Because a lot of inches aren't rightfully ours, and if we started said war, we'd lose access to those. But knowing the law does give me some comfort in that, if it came to it, we COULD fight and win quite a bit. And when the stakes are high enough, we do choose to fight an isolated battle here and there. With good results, like the LJR and Lehigh cases.

Pat

Posted on: 2013/10/11 13:56


Re: Waterway Rights info on PA streams

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2012/10/24 19:22
From Landenberg, PA
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Quote:

franklin wrote:
I used to do a lot of research on properties that were part of the original Penn leases. I never heard of a "Crown Grant" in Pa.


cool. well there is no PA list that much i do know, but then VA and NY have no lists either, so that's not unusual.

Crown Grants are freehold not leasehold and in perpetuity.

William Penn received the Entire Province of Pennsylvania under Crown Grant. The Grant gave him the power to lease land.

PA like the other 12 colonies was all crown land - as was the UK. the land my parents house in England is built on was originally King John's.


one interesting fact i did find was that the NY Staten Island Ferry was and still is a Crown Grant.

you just have to trace the title back - in NY there is a musuem with the original Grants for the Bronx and Brooklyn.

edit: i just found this link

http://familysearch.org/learn/wiki/en ... ania_Historical_Geography

wiki also confirms it...

Posted on: 2013/10/11 14:38

Edited by geebee on 2013/10/11 15:02:53


Re: Waterway Rights info on PA streams

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2006/9/9 16:08
From Erie Co.
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Anyone see Ancient America the series on history charnel? efforts are being done to dismiss Crownland deed's; do they work if they in fact did not hold the deed in the first place?
runin stones are being found throughout the united states and Lewis and Clark my have been witness many others.

Posted on: 2013/10/11 18:47


Re: Waterway Rights info on PA streams

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2013/4/23 19:39
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This is probably a crazy idea, but...

If a waterway wasn't historically used for commerce, but some form of commerce began on it today, would it then be considered navigable?

Posted on: 2013/10/11 20:48



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