On rights of passage to streams, goodwill often is the guide

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On rights of passage to streams, goodwill often is the guide.

By Tim Renken, St. Louis Post-Dispatch
07/20/2001

"I enjoy wading our wonderful Ozark streams, but I have discovered that I probably have been trespassing. I have done as much research as the Internet will allow and have found very few streams that are fishable and on public land. I think if you were to do a column on wadeable streams here in Missouri, I and a lot of St. Louis anglers would benefit greatly."

Thus writes reader Steve Visintine of St. Louis. What should we tell him?

We won't tell him about wading streams on public property, because there aren't any - or very few.We won't tell him he wasn't trespassing, because he might have been. Then, again, he might not.

The issue is fuzzy because Missouri law in the matter of small streams is fuzzy. Don't blame the Legislature. The Missouri Supreme Court created the case law with a 1954 decision entitled "Elder vs. Delcour." You can read it online at http://www.ssu.missouri.edu/courses/AgEc257/watercourse.

Elder vs. Delcour decided a case between two men who wanted some kind of resolution of landowner and floater rights on Ozark streams. In the scenario George Elder and his wife were float-fishing down the upper Meramec River in Dent County when they encountered a fence across the river.

When they lifted the wire to get through they were stopped by the landowner, J.M. Delcour, who ordered them off. They proceeded through the fence and down the river, carried their canoe around an obstruction, waded, fished and floated, ate lunch on a gravel bar, then proceeded until they left the property.

The landowner sued for damages and trespass. The county court found for him, and the case was appealed until it reached the Supreme Court. Here's the syllabus of the decision:

"The Meramec River in Dent County is not a navigable river, and defendant landowner had title to the river bed. But the river is a public highway for travel and passage by floating or wading, for business or pleasure, including the right to fish. Plaintiff was not a trespasser when using the river for floating and fishing."

Under this and previous decisions and legislation, Missouri has three kinds of streams, navigable, non-navigable/public and non-navigable/private.

Missouri has just a few navigable/public streams. The Missouri and Mississippi Rivers are navigable. They are publicly owned to the high-water mark. No problem there.

Most of the state's streams fall into the other two categories. The difficulty arises in determining what stream fits where or what stretches of a stream fit where. Some stretches of most streams are floatable some times, not floatable others.

The difference is important because on non-navigable/private streams, presumably tiny creeks with just temporary water, there is presumably no right of passage.

Another source of confusion is what under this law constitutes "passage." The judge included floating, wading, fishing and camping on a gravel bar in the process of passage.

But how about parking a vehicle and walking across private land to the stream? That would seem to be trespassing. Many stretches of many small streams, though, can only be reached by crossing private land.What are Visintine and the many people like him to do?

Legally, this whole thing is tricky. The law is vague, but probably it has been left vague for a reason. Vague law is better than bad law.

If ever this issue were pushed in court or in the Legislature to a complete resolution, one side or the other likely would lose an important right. That risk is probably what has kept Elder vs. Delcour as the last word for 47 years.

The present system functions largely on goodwill. Owners tolerate passage by floaters and anglers who, in turn, behave as guests.

For Visintine and his colleagues, the right of passage on a stream includes no disturbance or damage beyond, perhaps, a few footprints and keel marks and, maybe, a blackened spot of a fire in the gravel.

To park on private land or cross it enroute to the stream, they must obtain permission or, even under Elder vs. Delcour, they are trespassing.
 


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