Land permission [Archive] - Fly Fishing Forum

: Land permission


Jeff
01-21-2002, 01:01 PM
Ok so I have been meaning to post this for awhile and yes I know it has been talked about other boards but wanted to see if anyone has any information or where I might go to get information on this.

Over Christmas My dad and I where fishing up on the East Fork of the Lewis above Day break park. We walked to the end of the park and then down clearly below the normal High water mark and kept walking up. We came apon a guy fishing whom got out and told us that we were tresspassing on his land. I said I was sorry but I thought it was normal high water mark which we were clearly below. He said no he paid taxes to the middle of the river. I apologized again. He was very nice and end up letting us go on up to fish since no one else was around so I had no problem with that and thanked him.

But here is my question I thought in Washington it is public land up to the normal high water mark on all navigatable rivers (which means you can float it in some sort of boat). Is that everyone elses definiton. Does anyone have a link to the actual law/

Thanks

JJ

PS: the run fished way better from the other side so it probably won't be an issu for that run but man up stream on that side sure looked to be a nice run.

GBSkunk
01-21-2002, 01:46 PM
Jeff, I don't know about Washington but here in Oregon the state has to determine that a river is "navigable". Just because you can float it does not mean that you have access to the high water mark. Here is a great link to more info. http://statelands.dsl.state.or.us/nav_kilchis_trask.htm

TL's,
Dave

fredaevans
01-21-2002, 06:43 PM
Dave's going down the right path. The basics of the law say if a river, stream, whatever, has been classified as navigable (think this is a US Gov. rather than a State determination) after you gain access to beach below "normal high water" the 'ground' under the river/stream is public land.

If the river/stream has not been classified as 'navigable' then the ajoining land owners "own" the ground under the water to the 'thread of the stream.' Back to the Lewis, don't know which catigory this river falls into but if it's classified as 'navigable,' be nice, then tell the fellow to 'p.... off.' Not a nice way of telling him to look up and understand the laws of the United States. If the water is not classified as 'navigable' he's got you ... of course you could always ask him to 'prove' he was/is the land owner.
fe

roballen
01-21-2002, 07:06 PM
I agree with the above posts but would add that the states have completely failed to protect the public trust and have allowed the deeding of public property to private individuals.
The federal test of navagability is the only Legal test for navagability. The states have not followed that standard.

The federal test is basically. CAN the river be floated in a traditional water transportation devise (BOAT) for the purpose of commerce. It doesn't have to be used that way only that it can be used that way. There is a lot more to it than that but thats what it biols down to.
Since there are fishing guides that operate on that section of the East Lewis it is clearly navagable according to the federal test. And the federal test is the ONLY!!!!! I releat ONLY!!! legal way to determine navagability.
Because almost all rivers in the northwest have the potential of being used by professional fishing guides in boats they are (or should be) considered legally navagable for title purpose and therefore public land up to the ordinary high water mark.

On the other hand you stay out of that run !!! it's mine I tell you MINE! :O)

fredaevans
01-22-2002, 01:17 PM
Old memory bin here but at one time the theory of guide boats and nav. waters was 'tested' in the State of Washington. Does anyone know what, if anything, became of that?

We have a similar situation here in the Medford, Oregon area. The two major streams (Rogue and the Applegate). The first is a you have access below high water the second is to the 'thread of the stream.' With the second I can assure you the adjoining land owners 'protect their rights' to the point of sillyness. Test it and you will meet the local Sheriff. Period.
fe

fish-head
01-24-2002, 10:54 PM
Actually the law goes both way's on some river's in Oregon .Some river's you can fish out of a boat only , you cannot drop anchor , and there is no high water mark . Or if the land - owner who own's on both side's of the river bank they own the river bottom also ,and there is no high water mark at all .Not sure if this helped or not ? Fish-Head

pmflyfisher
01-24-2002, 11:44 PM
Wow I am glad I don't have to deal with those rules here in the
Midwest.

Would be in jail for sure out there with out a personal Oregonian guide, just to show me where you can and cannot fish, let alone how to fish for them. :whoa:

Cannot even anchor, never heard of that on a river

roballen
01-25-2002, 02:22 AM
fish-head

My only problem is that Oregons laws are wrong. the only law that it truly applicable is the federal laws based on the doctrine of equal footing. The problem is thatOregon and other states have misdefined what constitutes a river that is navagable for title purpose. All rivers that are navagable for title purpose are lands that were given to the states for the express reason to be held in trust for public use. State laws are irrelevant and in the case of Oregon Violate the public trust .

The only legal way to know if a river is navagable for title purpose is the federal test of navagability which states. That any river that CAN act as a highway for commerce by traditional modes of transportation on the water is a navagable river.
The river does not have to be used that way it's only important that the river can be used that way. There are very few rivers that cannot be used in such ways. Many rivers are used that way on a daily basis yes public access below the normal high water mark is not allowed. This is a serious violation of federal law and needs to be addressed seriously.
The public is being kept from their public lands and landowners are paying undue property taxes for lands they do not own.

fredaevans
01-25-2002, 05:14 AM
"Fish-head" what you've described is/was my case #2 of ownership/title to the tread of the stream. In the case of the Applegate this would indicate that it is not classified as a 'navigable' stream by the US Gov. And you're right Andy, legally you can float the water but not anchor as this would be considered 'tresspassing.'
fe

pmflyfisher
01-25-2002, 08:38 PM
I agree 100% with Roballen

Fred before I enter Oregon waters I will need a complete debriefing of this subject matter.

Whats going on in Oregon anyway ?

fredaevans
01-26-2002, 07:21 AM
Rob, do you know which Gov. Agency would have info on which rivers are classified as 'nav?' You bring up an interesting point and I'd like to pursue it.
Fred

PS: it could be (perverse maybe) fun to throw a handgranade into the local chicken coop.

pmflyfisher
01-26-2002, 07:36 AM
Fred, yes please get that resolved legally before I set foot in Oregon waters.

I don't think I can retrain my self from 40 years of experience walking the rivers of the eastern and midwest states with their rules which follow the federal rule, described above.

I should have known with Oregon bordering California you may have radically different state laws then the rest of us.

Is that why there is no NFL, MLB, or NHL teams there ?

:tsk_tsk: :tsk_tsk:

fredaevans
01-26-2002, 08:15 AM
sports teams (NFL,MLB, etc) is we'd prefer our bond money's be directed towards improving our school systems, etc., than providing a new stadium for a team that may not be there in a couple of years. Never could figure out why a community would put millions and millions of its credit on the line to build something for team owner ... who could pull the plug on them at any time.


Oar-E-Gons a pretty conservative group of folks, gets worse as you move south and east away from Portland. Medford here is the largest city in the southern half of the state. With that in mind had a fun conversation with someone in Seattle and pointed out that the total population of Medford could sit in Seattle's football stadium. But that's why 'combat fishing' is an extreamly rare situation down here. You want a mile of river pretty much to yourself, don't want to drive more than 30 minutes. Piece of cake, and that's a fact.

Schools are rated some of the best in the State (report out on that yesterday), crime level is minimal, People slow down and let you into traffic, we waive at a Cop driving by, many of us actually know the name of the mailman. But you pay the price in the wage levels for most positions.

But this also explains why so many Californians sell out when they retire and move north to our area. It's interesting to see where ("statisticly") we're (based on income levels) considered to be one of the 'poorer' counties. Based upon actual wealth, we're rated as one of the highest. Lots of retired folk on Soc. Sec.

So endeth the lesson on Southern Oregon.
fe:rolleyes:

pmflyfisher
01-26-2002, 09:30 AM
Fred, okay I promise never to bring that up a again. But if you had more professional sports teams it would divert people from the outdoor resources available, and you could possibly have even more rivers to fish in peace. We are really all envious. Don't worry I won't tell anyone, but it appears the californians already know about it. Oh california, will be there in three weeks for four days of my normal LA business meeting death march. Interesting I have travelled all over europe and north america on business, when I go to california it is always LA.

Moonlight
01-26-2002, 10:33 AM
Court fights over Navigable Rivers have been going on for at least 100 years in Washington and are still being argued on numerous cases. I don't have alot of specifics as others posting on the issue but I do know from earlier study that Shake Bolts were cited as having been floated down a particular river and that was adressed by the court as being enough to call it navigable for commerece.
An Old Timer used to talk about "the famous battle of the Quillayute" and that was a case about navigabity on the Q. at the confluence back in the 1950's a land owner posted no tresspassing and many took offense. I am not certain but this may have been the shake bolt case. At the time no boats were being used for fishing other than Native Dugout canoes.
There is no single rule as far as I know that sets a criteria and lawyers can stay busy for years working out agreements on a single river. Personally I just pick a repectful time of day and go visit the land owner and ask for permission to tresspass and help him keep vandals and litter bugs at bay as often as I am around his digs. Most after meeting you will relent and grant you permission. If its really a good spot you might consider a small gift (BRIBE) of wine or always a hatchery fish.

fredaevans
01-26-2002, 07:34 PM
I don't ever recall being refused passage. Frequently get the message about closing gates, trash, etc., but what the heck it's his land and we need to respect it for what it is. This lack of respect shut down the Windchuck just south of Brookings, Or a couple of years back. Limited access at best but some good water was available. One rancher even put in 'arrowhead' gates and ladders over his cattle fences.

Some **** heads (sorry for the profanity but this must be what they had for brains) didn't want to clime a short ladder/had rods over so they just cut the fence. You can guess the rest.

And Hal, the reason we don't have a population 'crush' is Oregon has just a bit over 3.5 million people in the State. 80% of them live within an hours drive of Portland. Coming down I-5 with Salem (State Capital) in your rear view mirror and not a lot of folks left. Jackson County (Medford) and surrounds has something like 180,000 people counting pets. Josephine County to the north is about 2/3rds , maybe, of this. Next 'population' center going north is Roseburg which is an hour drive at freeway speed.

Life is good, and don't move here.:smokin:

fish-head
01-27-2002, 12:43 AM
Rob , I think might you be miss guided on this 1 . The way I understand it along with many ranch owner's is . The day Oregon was deeded state hood that some river's were deemed Navigable and Non Navigable . Now I have heard many story's about how they decided on how which was what ? As I posted before there are many river's in Oregon that have different regs. on them .If we are talking about the gate , Here is the Law , It is deemed a Non Navigable River ,Which mean's an Angler has the the Right to float the River .But Cannot fish out of a floating device . You have to know where you are at all time's , or you will be issued a Tresspasssing ticket . Fishing or not , Even if you have your anchor out in a run . If the land owner own's land on 1 side of the River they own till the middel of the River bottom , goes both way's . If the land owner own's on both side's of the river they own the bottom all the way across . There is no high water mark PERIOD . If they own it RESPECT there wishes if they will let you fish on there property or not ?Smartest thing you can do is ask what will that hurt ?PM it is not like evrybody will give you a ticket , or tell you get off ther land out here .......People don't understand that this is there BACKYARD , just like eveybody else has .They are not bad people , they just want to have some Privacy at time's .Rob if I have time come down and fish it with me , so you can see for your self . Fish-head

roballen
01-27-2002, 01:16 AM
Thats exactly the problem! The state deeded lands that were not theirs to deed. Because they failed tp properly determine what rivers were navagable! The Appelgale(which I have never seen) Is obviously from what you are saying navagable according to the federal test of navagability. The state of Oregon was wrong to deed thoes lands away. In doing so they violated the public trust.
If a river is capable of being used as a highway for commerce , say a guided fishing trip , the river is navagable for title purpose. The use did not have to exsist at that time it only matters that it could have, which is obviously the case.

All I am saying is that the State Of Oregon illegally enforces tresspassing laws that should not exsist because they are superceeded by federal law. These states that do this need to be taken to task they need to be sued for violating the public trust and taken to federal courts where the law is more clear.

pmflyfisher
01-27-2002, 10:12 AM
Fred, for sure I won't be fishing the Applegate River out there.

Why even bother drifting it to fish when you cannot fish from the boat and only can set foot in those area of the river which are not posted as private ?

Might as well just walk in (if possible) on those sections which are public.

Not my type of fishing lots of other rivers out there to go to.

I am sure the state of oregon though stocks this private stream and the land owners don't complain though right ?

How many other rivers in Oregon are like the Applegate ?

Fred, are you sure Oregon is still part of America or did California annex you guys into their divergent thinking on state laws also. I am dealing with them right now on work. Sometimes I think we just spin them off into a separate country the way they think and their legal system.

fredaevans
01-27-2002, 07:41 PM
west of Medford is the only one of it's kind in the area. I think the Williamson over by Klamath Falls may be the same. There is some public access via parks, river runs next to a road, etc., access but it's pretty limited. Limited to the point I may go there for 'jollies' once or twice a year but that's it. Also fairly limited fish run; this plus limited access ... why bother.

And as for the Californian's, we stop them at the Oregon Border, issue them temp. visa's for a max. weeks stay. Over stay and we hunt them down like rabid Dogs.:smokin:

Forgot to add: there have been a couple (historic) attempts to take a large chunk of Southern Oregon and several northern Calif. counties and form their own State. It was to be call Jefferson State. The local PBS radio stations actually are called "Jefferson State Radio."

pmflyfisher
01-28-2002, 09:06 PM
Jefferson State now thats a new one on me.

We even learn american history on the fishing forumn !!

Will have to look that up though.

KerryS
01-29-2002, 06:22 PM
Hey Fred,

What ever happened to the idea that there would only be on ramps to the freeway? I remember when someone actually introduced a bill to the Oregon legislature to remove all of the off ramps from I5.

The State of Jefferson thing was big when I lived in Medford some 25 or 30 years ago. Glad to hear it is still talked about.

pmflyfisher
01-29-2002, 08:19 PM
What no off ramps and forming a new state, what kind of people hide in that area of SW Oregon ?

Perhaps that is where Eric Rudolph is and what about DB Cooper (?? think that is the name of the guy who jumped out of the plan out of Portland 20 years ago and never been found) ?

fredaevans
01-30-2002, 07:34 AM
sticker went. But it was to the effect of 'have a nice vacation ... then leave!' Not that unusual for southern Oregon Cities to only have on/off ramps at the faaarrr ....... ends of the community. Ashland, Medford, Grants Pass all come to mind on this one.

Planners idea (I guess?) was you can come here ... if you must ... but we're not going to make it easy.:hehe:

pmflyfisher
05-10-2002, 10:45 PM
FYI

Very interesting 1930 Wisconsin legal decision on definition of navigable waters, plus a little history lesson. Based on the Ordinance of 1787.

Remember to always check the state law where you are fishing. Many apply the navigable definition described below.


201 Wis. 40, *; 228 N.W. 144, **;
1930 Wisc. LEXIS 69, ***
NEKOOSA-EDWARDS PAPER COMPANY, Appellant, vs. RAILROAD COMMISSION OF WISCONSIN, Respondent.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF WISCONSIN
201 Wis. 40; 228 N.W. 144; 1930 Wisc. LEXIS 69

November 8, 1929, Argued
March 4, 1930, Decided
PRIOR HISTORY: [***1] APPEAL from a judgment of the circuit court for Dane county: AUGUST C. HOPPMANN, Circuit Judge. Affirmed.

Action begun December 10, 1926; judgment entered July 26, 1929.

Action brought to review an order of the Railroad Commission in denying the plaintiff a permit or license to maintain a dam on Four Mile creek, a stream flowing into the Wisconsin river. Application for the permit was made under secs. 31.31 to 31.33 of the Statutes, which applies to streams "not navigable for any purpose." The license was denied for the reason that the commission found as a fact "that Four Mile creek at the proposed dam site . . . and for a considerable distance above that point is navigable in fact, and a dam in that location, therefore, cannot be licensed under secs. 31.31 to 31.33 of the Statutes, but must be authorized pursuant to secs. 31.05 to 31.09, inclusive, of the Statutes," applicable to navigable streams.

The circuit court upheld the order of the Railroad Commission. Petitioner appealed. It contends:

1. Four Mile creek is not navigable at common law or declared so by statute.

2. That at most it is only a "floatable" stream, upon which, prior to 1911, the riparian [***2] owner had the right by common law and statute to construct a dam.

3. That plaintiff having acquired the riparian right prior to 1911, it cannot be divested thereof by legislation subsequent thereto.

4. That Four Mile creek is not navigable in fact for any purpose, not even "floatable."

DISPOSITION: Judgment affirmed.

CORE TERMS: stream, navigable, dam, creek, water, logs, navigation, river, navigable waters, commerce, public use, fishing, highway, mile, navigable stream, riparian rights, riparian owner, navigability, obstruct, boating, territory, floating, flowage, float, ownership, pleasure, railroad commission, public right, navigated, floatable

HEADNOTES: Navigable waters: Stream navigable in fact: Power of state to regulate use: Right of riparian owner to erect dam: Powers of railroad commission: Findings of commission and of court: Evidence: Sufficiency.

1. Under sec. 1, art. IX, Const., embodying verbatim art. 4 of the Ordinance of 1787, relating to navigable waters, there is no distinction between a "navigable" stream and a "floatable" stream, and any stream which is of sufficient capacity to float logs to market is navigable in fact, it not being essential to the public easement that this capacity be continued throughout the year, but only that it have periods of navigability ordinarily recurring from year to year and continuing long enough to make it useful as a highway. pp. 45, 46.

2. On such a stream the riparian owner may not obstruct navigation or the public use of the waters against the consent of the state, as the federal government granted to patentees title to the land subject to the public use. The state holds in trust for the public all rights incident to such public use, and for the protection thereof has the power to regulate the use of the stream. p. 48.

3. In an action to review an order of the railroad commission denying a permit to the owner of all the land subject to flowage on both sides of a creek to build and maintain a dam therein under the provisions of secs. 31.31 to 31.33, Stats., which are applicable only to streams not navigable for any purpose, the evidence is held to sustain the findings of the commission and of the trial court that prior to 1860 logs were floated down the stream for several years, that small boats from time to time navigated it, that it is suitable for navigation by canoes and rowboats, and is navigable in fact. p. 43.

4. Because the right of the commission to issue the requested permit depends on whether or not the stream is navigable, the commission had power to find the fact as to its navigability as a necessary incident of its jurisdiction. p. 48.

5. Evidence that the creek was profitably used prior to 1860 for floating logs to a sawmill at its mouth, although its use for such purpose had long since ceased, was proper to show its navigability; and while the public right may have originated in the older use or capacity of the waters for navigation, such public right, having once accrued, is not lost by the failure of pecuniary profitable navigation. Hence, the creek being a navigable stream as a matter of fact, as found by the commission, it is public water to which the public has a right to resort for fishing, boating, or other public purpose. pp. 46, 47.

On motion for rehearing:

6. The riparian rights of the property owner are subject to the public rights in a navigable stream, and until a dam has been lawfully built in such a stream there is no vested property right to obstruct navigation by building a dam therein, it being a matter within legislative control as to the extent and manner in which the riparian owner may obstruct such a stream, limited, however, by the state and federal constitutions; but even the legislature may not unreasonably restrict navigation in a stream navigable at the time of the adoption of the constitution. p. 50.

COUNSEL: For the appellant there was a brief by Goggins, Brazeau & Graves of Wisconsin Rapids, and oral argument by R. B. Graves.

For the respondent there was a brief by the Attorney General and Suel O. Arnold, assistant attorney general, and oral argument by Mr. Arnold.

JUDGES: CHARLES H. CROWNHART, J.

OPINIONBY: CROWNHART

OPINION: The following opinion was filed December 3, 1929:

CROWNHART, J. The evidence before the commission warrants a finding that prior to 1860 logs were floated down this stream for several years. It warrants a finding [*43] that small boats from time to time navigated the stream. It warrants a finding that at the time of the application for the permit the width and depth of water of the stream at the point of the proposed dam, and for a considerable distance above, made it suitable for navigation of canoes and rowboats. It is from [***3] fourteen to forty feet wide. It has a watershed of 126 to 150 square miles. By removing obstructions of logs and brush the stream might be navigated by small fishing craft for quite a long distance--ten miles at least. In fact, the stream has been so navigated quite often. For 600 feet above the dam site the stream is forty feet wide with a depth of two feet to two and one-half feet--fairly uniform. The commission ascertained by actual view, and from the evidence adduced, that the stream is navigable in fact. The trial court sustained the finding of the commission, and the evidence fully sustains the findings of the commission and trial court.

The English common law on the subject of navigable streams does not obtain in this country generally, and especially it does not obtain in Wisconsin. By the English common law navigable waters were limited to tide waters. But here the common-law rule extends to waters navigable in fact. 27 Ruling Case Law, pp. 1302-1306;

When the first white men came to Wisconsin, the streams of this state which were capable of floating a canoe were used as highways of commerce to carry furs to market and to bring back supplies to the fur traders. Later they became the highways of the early settlers, and still later the highways of a very large commerce in the logging and lumbering industry. What was true of Wisconsin was largely true of all the Northwest Territory.

By the Ordinance of 1787 it was provided that the articles thereof should be considered as "articles of compact between the original states, and the people and states in the said territory, and forever remain unalterable, unless by common consent." Art. 4 provided:

"The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor."

The term "carrying places" aids in the construction of what were considered "navigable waters." At that time navigation in this territory was principally carried on by canoes and other small water craft. The "voyageurs" would proceed up a stream to the very limit of its availability to float such a craft, whereupon the load and the craft itself would be carried over to another stream and the voyage continued. Such was the method of carrying the commerce across the state by way of the Fox and Wisconsin rivers, the Fox being considered navigable, and navigable in fact as so used nearly to the Wisconsin. Such was the commerce from Lake Superior to the Mississippi by way of the Brule and St. Croix rivers, where the Brule was so navigable to within a mile and a half of Lake St. Croix, although the Brule is a stream of many rapids and along its upper reaches narrowed to but a few feet across and a few inches deep. So it was with other streams. History gives character and meaning to the navigable waters forever made free by the Ordinance of the Northwest Territory. When lumber came in demand in the West, the great forests of this territory, and of Wisconsin in particular, were decimated, and the logs were floated down practically every creek and rivulet in the state. The waters of small creeks were held back by dams in the spring freshets for a head of water to float the logs later on. Thus a great and valuable [***6] commerce was carried on, assisted by pike pole and batteau, over and upon the creeks and rivers of the state.

In 1841 the territorial legislature of Wisconsin declared navigable all rivers and streams of the territory which had been meandered by the United States surveys, and forbade the making of any dams therein without legislative permission. Thereafter, by special acts of such legislature, dams were permitted in such streams. Number 9, Territorial Laws 1841.

So, too, from the earliest beginnings of our statehood the people of the state, through their legislature and their courts, recognized and regulated their navigable streams and commerce, and have so recognized and regulated them to the present day. Ch. 34, R. S. 1849.

When the constitution of the state was adopted, by art. IX, sec. 1, the Ordinance of 1787, relating to navigable waters, was carried into the constitution verbatim. From the adoption of the constitution of the state, the legislature was regulating dams on small streams of the state. To illustrate: By the General and Special Laws of 1851 a boom was authorized on the St. Croix river, and dams were authorized across the Peckatonica river, Sugar river, Little Wolf river, Baraboo river, and others. In 1870 a boom was authorized on Big Rib river, and dams were authorized on Big Rib river, Peckatonica river, Red river in Shawano county, and on the Nimakogan and Totogatic streams. In 1868 dams were authorized across Big Rib, Little Wolf, Apple, and Willow rivers; also Bogus creek, Lyndon creek, and Duck creek. Every session of the legislature passed its quota of special acts authorizing dams and booms to aid commerce on the small streams of the state.

The appellant contends that there is a difference between navigable streams and floatable streams. In any times since cited with approval, this court set that matter at rest. To quote a paragraph of the syllabus: "It is the settled law of this state that streams of sufficient capacity to float logs to market are navigable; and it is not essential to the public easement that this capacity be continuous throughout the year, but it is sufficient that the stream have periods of navigable capacity ordinarily recurring from year to year, and continuing long enough to make it useful as a highway."

There a dam had been erected on Levis creek, a small stream in Jackson county, without legislative authority. Action was brought to abate the dam and for damages. It was shown that logs had been floated down the stream for a number of years, principally during the spring freshets, by means of men along the banks who used pike poles or hand spikes to keep the logs in the stream. The creek was very crooked and it required a good deal of labor to get the logs down. But the court held the stream navigable in fact, and free for public use as a highway of commerce.

Under our decisions we perceive no distinction between a "navigable" stream and a "floatable" stream, and it has been held that in this country, where the right of the public has been extended to use streams for driving logs, the terms "navigable" and "floatable" are practically synonymous, and such is the situation here. Such a stream is a public highway.

The use of Four Mile creek for floating logs has long since ceased. It is now used only for pleasure, fishing, and boating. But the evidence that it was profitably used prior to 1860 for floating logs to a sawmill at the mouth of the creek was proper to show its navigable capacity. Once shown to be navigable in its natural state, it is presumed to be navigable and "forever free." Being navigable, the public may use it for the public rights incidental thereto of hunting, fishing, or pleasure boating. Indeed, courts have recognized, and now more than ever before recognize, the public's interest in pleasure and sports as a measure of public health. In fact, navigable waters, in contrast with non-navigable waters, is but one way of expressing the idea of public waters, in contrast with private waters. Boating for pleasure is considered navigation as well as boating for pecuniary profit.

Many of the meandered lakes and streams of this state, navigable in law, have ceased to be navigable for pecuniary gain. They are still navigable in law, that is, subject to the use of the public for all the incidents of navigable waters. As population increases, these waters are used by the people for sailing, rowing, canoeing, bathing, fishing, hunting, skating, and other public purposes. While the public right may have originated in the older use or capacity of the waters for navigation, such public right having once accrued, it is not lost by the failure of pecuniary profitable navigation, but resort may be had thereto for any other public purpose. Our state has for many years been extensively engaged in the propagation of fish and the stocking of the waters of the state with fish fry in order that the public may more fully enjoy the sport and recreation of fishing. By reason of the state's enterprise in behalf of the public, the small streams of the state are fishing streams to which the public have a right to resort so long as they do not trespass on the private property along the banks. Four Mile creek, under the decisions, is a navigable stream as a matter of fact, as found by the Railroad Commission, and it is public waters to which the public have a right to resort for fishing and boating or other enjoyment. That ought to be too plain for reasonable controversy.

The appellant makes the further contention that as it owns all the land on both sides of Four Mile creek at the point where it proposed to build its dam, and all the lands subject to flowage by reason of such dam, by reason of such ownership and its riparian rights incident to such ownership of the land, it has the right to build and maintain such dam without legislative sanction. Such contention is clearly untenable. It is incompatible with the fact that the stream is navigable and public. On such a stream or body of water the riparian owner may not obstruct navigation or the public use of the waters against the consent of the state. The federal government, by its patents, granted to patentees title to the lands subject to the public use. The state holds in trust for the public all such rights incident to such public use.

The appellant further contends that the Railroad Commission did not have power or jurisdiction to determine the navigability of the stream. The appellant sought a permit from the commission to build a dam across the stream. The right of the commission to issue the permit depended upon the fact as to whether or not the stream was navigable. As a necessary incident of its jurisdiction to grant the permit requested, the commission had jurisdiction to find the fact as to navigability of the stream. Under the facts of the case, it is fundamental that the state has the power of regulation of the use of Four Mile creek, to the end that navigation shall be free to the public, together with such other public uses as usually pertain public waters.
By the Court.--The judgment of the circuit court is affirmed

The following opinion was filed March 4, 1930:

CROWNHART, J. (On motion for rehearing.) The appellant moves for a rehearing and urges that it acquired, prior to 1911, riparian rights by reason of ownership of the lands on both sides of Four Mile creek, where its dam is built, including any flowage by reason thereof. It relies upon the decisions of this court in and "/The appellant fails to properly interpret those decisions with reference to the general rule as to riparian rights in navigable streams.

Prior to 1911 the legislature of this state, by law, had authorized the erection of dams on streams that had not been meandered or declared navigable under what were known as the "mill dam" acts. The dams in the two cases supra were so built. In the Conn Case the plaintiff sought to abate the dam as a nuisance. The court fully recognized the right of the public to use the stream to float logs, but held that under the legislation in question, so long as of navigation, the dam did not constitute a nuisance.

In the McDonald Case the action was to abate a dam used to create power to generate electricity, and for damages caused by the flowage of plaintiff's lands. The court there held that the legislature had authorized the dam, and plaintiff's remedy was for compensation for damages by reason of the taking of his lands for flowage.

Both of these cases recognized the right of the legislature [*50] to regulate the use of streams navigable for the floating of logs. Both recognized the rights of the riparian owner to make any reasonable use of the streams not inconsistent with the public rights therein.

The appellant here contends that its riparian rights were vested property rights, appertaining to the ownership of the lands adjacent to the stream prior to 1911, which the legislature could regulate by the act of 1911. The riparian rights of the property owner, as we have seen, are subject to the public rights in a navigable stream. Until a dam has been lawfully built in a navigable stream there is no vested property right to obstruct navigation by building a dam therein. It is a matter within legislative control as to the extent [***15] and manner to which the riparian owner may obstruct a navigable stream, limited, however, by the state and federal constitutions. Even the legislature may not unreasonably restrict navigation in a stream navigable at the time of the adoption of the constitution.

The legislation of 1911 has been upheld both by this court, in court, in the same case on appeal,-- By the Court.--The motion for rehearing is denied, with $ 25 costs.

Jumbo
05-14-2002, 11:38 PM
let's go to court

avid
05-15-2002, 12:19 AM
Originally posted by Jumbo
let's go to court


http://www.americanwhitewater.org/archive/article/131/

http://www.americanwhitewater.org/archive/article/379/

http://www.nwsteelheaders.org/river_access_navigability.htm

http://statelands.dsl.state.or.us/pendingstudyrequests.htm

http://www.sandysteelheaders.org/navigability.html
from this page:

An example of this is steelhead fisherman Ray Dezellem of Arlington arrested for trespass near Service Creek on the John Day River on Sept. 26, 1998. This case has been dismissed. This is for being on the bank below the high watermark of a river that state records show meets federal standards for navigability. If a waterway meets the federal test for navigability, it is navigable, and falls under the Public Trust.

Citizens should not be arrested for being below the normal high watermark of such a waterway. Many County District Attorneys understand this and will not prosecute. Others might and therefore conflicts will continue until the Oregon Legislature takes appropriate action. In the meantime users should avoid conflict where possible, stay below the normal high water line, don't litter, and show respect for others including the waterfront property owners. It's a good idea if you are not certain to ask permission first and avoid conflict. For more information contact D.S.L. in Salem at (503) 378-3805 or the author in care of the Association of Northwest Steelheaders in Milwaukee (503) 653-4176.

All kinds of information provided by my cable modem. <g>