Public or Private?
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pcray1231
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Yes. I'm talking legally here, not common courtesy.
But you are "entitled" to access property for recreational purposes so long as you are not told not to.
Being verbally told, a sign, a fence, or a door, are all methods to tell you not to! So in the case that those are present, you cannot cross them.
It may be that a landowner only posts a portion of their property. And if that's the case, of course you can use the other portion.
The whole bit about signs every 30 feet and so is to make sure someone sees the sign. i.e. if there's only 1 sign and you entered in a fashion that you didn't see it, that's a legal defense for you. But if you DID see it, you saw it, you were told, and thus you cannot cross claiming some technicality on the detail of the signage.
The gray area is if there's a single sign well within a larger property boundary. i.e. did the landowner intend to post only part of his property? If so, there's no line, which part? If he intended to post the whole property why did I go through part of it before seeing the first sign? In those cases I'd venture neither the landowner nor the would be trespasser are in the right. If you see a sign, and it ain't clear exactly what is and what isn't intended to be posted by the landowner, then the safe route is to assume his whole property is posted, and either go ask him or go to the local tax office and determine where his property boundaries are and stay off of them.
In hunting season last year, we had a situation where a nearby landowner posted some land that wasn't his! We were on national forest. The maps showed an adjacent private property we wanted to hunt as well. We asked the landowner and were granted permission, though he didn't post, so we didn't need to. We go in there on a scouting trip, and at the boundary between the national forest and his land, there's a line of very fresh posted signs, with someone else's name on it. Thinking we misinterpreted the map, we told the initial landowner about it. He grumbled some guys name and said not to worry he'd take care of it. The someone else was a neighbor, who objected to people hunting his neighbors property because I guess it intercepted deer going to his stand on his property, and hence put up the signs to keep them off. Apparantly he did it like every year. The real landowner came down and removed all the signs. 2 days later, on the first morning, our stander on that land was approached by the neighboring landowner and told to leave. He asked the guys name, told him he had permission from the legal owner, showed a parcel map, and stayed.
My dad also had a problem at home. On his own property. My dad doesn't post, but a bowhunter had asked permission, and it was granted. On a walk one evening he noticed posted signs on a few acres. In the middle was a treestand and a salt block, lol. My dad called the PGC, but all they did was remove the salt block. Now access for that guy is denied, but only for him.
fisherboy3
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So, being one of the streems on the publicly owned streambed list, I was allowed to be up to the high water mark? The guy told me he owned half of the stream bed due to his recent land survey.
salmonoid
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Pretty much one thing is why it is not dealt with.
$$$
It costs money to go through the legal process and unless there is some pressing issue (i.e. a landowner decides to force the issue in court) or someone with deep pockets who is going to cover the costs of having a stream deemed legally navigable, the status will remain in limbo.
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No, unless it was one of the one's that has had its day in court and been deemed navigable from a legal perspective by proceedings in the courts...the short list of larger rivers that pcray posted earlier:
Allegheny River, Monongahela River, Youghiogheny River, Ohio River, Susquehanna River (including north and west branches), Juniata River, Little Juniata River, Schuylkill River, Lehigh River, and Delaware River.
If the stream in question is one of those^, then yes, you have legal standing to be in the streambed, on either side, to the high water mark, posted or not.
If it's anything other than those streams, the landowner is correct (assuming his knowledge of the physical property boundaries are accurate), and you were potentially trespassing if you were standing on his half of the streambed if his property was posted, or he stated he wished for you not to be there. (Sounds like he ultimately granted you permission, so you were ok in this case regardless.)
This is all to say the landowner was no more correct, or wrong, for assuming the land was private than you were for assuming the land was public. The publicly owned streambed list is only the DCNR's interpretation/opinion on what is navigable. Most of those streams (other than the ones specifically listed above) have not actually been tried in court, and there is just as much legal opinion in favor of the landowner's position of that land being private. Until they have their day in court it's just opinion vs. opinion, and you risk a trespass citation to fish privately owned, posted sections of those waters.
geebee
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that why I carry a quart size Ziploc in the back of my fishing vest when I fish near private property ( and most of the time in fact) - so I can pick up a bit of trash and it looks good to whip it out in front of suspicious landowners.
imho it never does us flyfishers any harm to be seen picking up trash - I do it even on the Tully, for others enjoyment as well mine own.
pcray1231
Well-known member
Only a judge can answer. It'd essentially be a property dispute. The bottom line is that you have valid reason to believe it's public property and you can be up to the high water mark. And he has reason to believe he owns the streambed, and you can't be there. Here's the deal.
The guy's deed very likely says he owns half the streambed. He probably is not lying about the land survey. And if you choose to fish there, he may very well choose to prosecute you for trespassing, and the police likely would not throw it out immediately.
If that happened, you could just pay the fine, and that'd be the end of it. Or, you could choose to fight it on grounds that the stream is navigable, and thus the streambed is public as the DCNR asserts. Assuming the landowner doesn't just drop charges at that point, it'd go to court. You'd both have to lawyer up.
In court, the judge would try to determine whether the stream is navigable. The DCNR's list means absolutely nothing on it's own. But it does likely mean that the DCNR was able to dig up some evidence of past commercial navigation on that waterway. Back in the 1800's many goods were transported by water, rather than horse drawn carriage on crappy rutted up mud roads that were often impassable.
The test of whether it's navigable is whether it is or ever was "capable of" being used for navigation in it's ordinary state. A past history of navigation, like the DCNR likely found, is pretty convincing proof that it was. And thus, presenting that same evidence, a judge should rule in your favor. You would not be charged with trespass. A judge may or may not order the landowner to back pay your legal fees. The landowner, and all others on that particular stream, would have to cede their claim to the streambed up to the high water mark, as the streambed itself is deemed public property. Landowners, though, may petition government for a reduction in their property taxes, or even a refund, since they don't really own as much as they thought, and thus have been overpaying property taxes all these years.
Or they could appeal to a higher court. And you go through the whole rigamarole again.
Or, ya never know, judges come in all sorts of persuasions, and court cases are rarely so predictable. And example of what could go wrong for you: precedent from past cases says a stream navigable in part is navigable in whole, but nowhere in congressionally passed statutes is that stated. So a judge could, in theory, disagree with past judges, break that precedent, and claim some of the stream to be navigable, but not the particular part you were on. In which case, you're guilty, out your legal fees, PLUS possibly the landowner's legal fees, plus whatever fine or form of punishment there is for trespassing.
Or you could appeal to a higher court. And you go through the whole rigamarole again.
Fun, huh?
FarmerDave
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These guys are right. Not 100% certain unless decided in court and if I am going to er, I gonna er on the side of the landowner. Ticking him off just makes it harder for the next guy.
Some streams do have a lot of history of being used for commerce and it would be likely that you would win in that case, if you wanted to spend the money.
Anyway, it sounds like you did everything right, provided you didn't see any signs ahead of time and weren't just trying to avoid the signs.
The landowner asked you a few questions. It sounds like you answered politely, so he said you could stay. No problem.
I have done the same thing as that landowner when I have caught people on my property without permission.
I also ask that they let me know next time. I like to know who is on my property.
Some streams do have a lot of history of being used for commerce and it would be likely that you would win in that case, if you wanted to spend the money.
Anyway, it sounds like you did everything right, provided you didn't see any signs ahead of time and weren't just trying to avoid the signs.
The landowner asked you a few questions. It sounds like you answered politely, so he said you could stay. No problem.
I have done the same thing as that landowner when I have caught people on my property without permission.
I also ask that they let me know next time. I like to know who is on my property.
PennypackFlyer
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FD, when i saw your "er" I thought you were talking about "Emergency Room"
franklin
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Yep and once the word gets out many of the other adjacent land owners will put up the signs as well. I posted my land and have my phone number on the signs. Never got one person asking if they could hunt. Yet every year or two I have to run some clown off that violates the signs and parks right by my stand.
PennypackFlyer
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I thought stands were suppose to be a certain distance from the road?
somersetian
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The way I always look at it is if there's no sign or gate then fish it. If someone asks me to leave I just leave, no argument its not worth it. Biggest thing to remember though is to carry dog treats!
The_Sasquatch
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With the Skuke, does that include the West Branch? It splits into 2 branches up around Cressona.
fisherboy3
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Being from New York, i stupidly didnt know the actual law of the high water mark. I always thought that you could wade up to the high water mark, whether navigable or not. Now I know. I politely asked him if he owned the other side, he said no. Thats when i asked what part of the property i was on he owned, he said the streambed i was on. Being a fly fisherman definitely helped though, he said hes tired of beer and bait containers on his property. And there were posted signs, but up on his property. Didnt think it would matter if I could wade up to the high water mark. After he told me that, he said I would like you to just ask next time. I said you want me to knock on the front door? He said you know what, if its just you, dont worry about it. We shook hands and exchanged names, and I was granted access.
Sylvaneous
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all this POSTING garbage didn't get going until the 90's. Prior to that, at least in this part of the world, the only people who posted were outlaws and paraniod freaks.
Then in the 90's a lot of things seemed to happen and people got posting-crazy. And a big part of it was fearing big government and someone getting away with something or taking advantage where they shouldn't. It didn't matter 10 years before.
Along with this is that if a stranger knocks on a door, instead of a neighbor or guest, which is how one should be treated, you are an invasion threat.
Again, referring back to the attitude change I saw happen in the 90's.
People just got freakin' crazy.
Syl
Syl -
I believe the posting craze occurred because society got stupid. When I say stupid I mean littering, greed and land abuse/entitlement in general from ATV's and other intrusions. Land owners just got tired of all the stuff that was going on with their land. I think the root cause for posting land is more of a society issue than anything else.
Ron
I believe the posting craze occurred because society got stupid. When I say stupid I mean littering, greed and land abuse/entitlement in general from ATV's and other intrusions. Land owners just got tired of all the stuff that was going on with their land. I think the root cause for posting land is more of a society issue than anything else.
Ron
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I also don't think that's anything new. There were plenty of miscreants with birthdates prior to 1980 too. It's your land, you paid for it, do with it as you wish. Post it, or not, your choice. I'm all for it, and respect it, and never will cross a posted sign without direct permission from the owner.
You own property on Fishing Creek right? Both sides of the stream or just one? If it's just one, I think I'll entitle myself to stand a foot short of the midline of the stream on the opposite side and fish bait (under a bobber of course, so it's not touching your stream bottom). I'll agree to clean up my worm container and Busch Light camo cans though. 😛int:
Maybe the asking about private land is an urban/rural thing. I'm from a small city with sidewalks. Kids run through my front and back yard all the time and I don't think anything of it. On the same token, if I see a stream and no posted signs I don't think twice about fishing it without asking.
I've been yelled at, threatened, etc. a few times and I apologized and usually left (Unless they told me I could stay). I've never had anything close to a physical confrontation though because I don't argue and do respect their wishes.
Personally I don't see anything morally or ethically wrong with fishing a stream that runs through someone's property if there are no posted signs. I will not go out of my way to ask permission if I don't see posted signs. I do that with the understanding that unlike city slickers with small yards, people from the country who have lots of land are pretty territorial and may get pissed and kick me out.
I've been yelled at, threatened, etc. a few times and I apologized and usually left (Unless they told me I could stay). I've never had anything close to a physical confrontation though because I don't argue and do respect their wishes.
Personally I don't see anything morally or ethically wrong with fishing a stream that runs through someone's property if there are no posted signs. I will not go out of my way to ask permission if I don't see posted signs. I do that with the understanding that unlike city slickers with small yards, people from the country who have lots of land are pretty territorial and may get pissed and kick me out.
