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Am I a dirty trespasser?

2K views 21 replies 17 participants last post by  riverdog 
#1 ·
If I enter a stream at a bridge, then walk in the stream up or downstream, through what is probably privately owned land, am I trespassing?

I fished the Deschutes today, and although I didn't catch anything, I had a pretty peaceful time trying. It was a nice day not to be sitting at my desk.

Teeg.

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You can be a fish recycler, too. Let 'em swim.
www.recycledfish.org
 
#4 ·
There is usually a lot of info on this subject and it seem to come up all of the time. You hear that you are ok if you are below the High water mark and then again some people think that they own the whole damn river and the fish in it. So I don't know anymore what is legal and what isn't. This doesn't make much sense but this issue doesn't make much sense either.

Jim
 
#5 ·
Last I heard, as long as you stayed below the high water mark you should be good to go. You were technically on state property. If I met a guy with a 12 gauge though, I wouldn't argue.

Where were you on the Deschutes? And how was the water?

I usually fish around the Waldrick Road Bridge, then go up or down stream from there.

REE
 
#6 ·
I don't really know the river, but it seemed like it was at "winter levels," there was a lot of suberged green grass, so it's probably on the high side, but not pushing its banks or anything. Walking upstrem in thigh-deep water was challenging, it was moving right along.

Water was pretty clear, about 2.5 feet of visibility, I suppose.

I fished a few spots, I was kinda scouting as much as fishing, just sort of getting familiar with the river. Mostly fished upstream around the Vail Loop bridges.

I secretly hoped I might find a steelhead, although I know there aren't many. I expected if I caught anything, it might be a cutthroat. Although I'm still hoping to catch a whitefish, at some point.

Teeg

-------------------------------------------------
You can be a fish recycler, too. Let 'em swim.
www.recycledfish.org
 
#7 ·
New River Mike

This question and Ron's reply (in regards to the 12 gauge) reminds me of a true story that involved me about fifteen years ago in Virginia...

An attorney friend and I launched a canoe trip for smallmouth bass on Walker Creek. My attorney friend had done the trip several times before and I was his "guest" that day, so to speak. It was about an eight mile float and although I had never been on the trip, knew that it went through some remote country. Those of you old enough to remember the movie might have called it "Deliverance Country."

About halfway through the trip we were leaving a rocky section of river and moved into a long glide which carried around a bend. As a solitary white farmhouse came into sight about two hundred yards away, the friend pointed to it and directed that when we got a little closer, we would need to put down our rods. Knowing of the existence of the Navigable Waterways Act, I asked why, and was told, "Because the guy who lives there will come out and yell at you for fishing through his section of river."

"Can he do that?" I persisted. "Even if he owns the land on both sides of the river, he STILL can't stop us from fishing."

"You're right about the law..." my friend agreed, "...but I make it a habit never to argue finer points of the law with a man holding a shotgun."

I put my rod down, and so did he. We never saw the man.

:thumb
 
#9 ·
New River Mike,

Sounds like what happened to me and a buddy on the Tilton. We had worked our way into a really nice spot by 9:00 or so in the morning. While we were fishing a guy walked down by the stream, asked if we were catching anything and passed some quiet conversation. As we were getting ready to hike out through the river (as we had come in) he stood up with a 12 guage pump and told us "You've seen it, you've fished, now forget it!" Needless to say we left and haven't been back on that stretch of the river.

REE
 
#12 ·
Streams may be, but that doesn't necessarily apply to the stream bed.

How I know it...

If the section of water you're on is designated as navigable by the county then you're legal to the high water mark of the bank. If not, then when wading you're subject to trespasing, even when you're in the stream if the land owner owns property extending into or throughout the stream bed. In these cases, unless the land owner has water rights, you're safe to navigate it by water craft.

Sound about right?
 
#13 ·
Is that true about the Raging? That's one of my favorite rivers and I've fished since I was in high school. I've encountered land owners (twice) who have accused me of trespassing and I told them to "stick-it" because I was below the high water mark. No one ever pulled any type of firearm, but I have had a couple rotweilers (sp?) and a german sherpad turned loose on myself and a couple companions. It was kind of funny though; those dogs don't seem to like water very much! Unless I'm told otherwise by the proper authorities, I will continue to fish some of my favorite stretches of that river. The fish aren't big, but's it's my fail-safe!
 
#16 ·
Sounds like we need an attorney. Oh yeah, I am one of those. If you’re really bored, here’s a primer:

Subject to rights of the Federal Government, the state of Washington owns title to all of the waters within the State, together with all tidelands and the beds and shores of all “navigable” waters, both tidal and fresh. “Navigable” waterways are those that are suitable for commercial navigation or that could be made so with reasonable improvements.

Because navigable waterways are generally owned by the State, whereas as non-navigable waterways are generally owned by the adjoining upland property owners, the distinction between navigable and non-navigable waterways is of obvious importance from the standpoint of boundaries. However, it should be kept in mind that the state’s title to the shorelands of navigable waterways is alienable, and in many cases the state has conveyed the title to the so-called “beach rights” to the adjacent upland owners, who have preference rights to purchase shorelands in locations where the state decides to sell them. The shorelines of non-tidal waterways are owned by the upland property owners to the high water mark.

Whether water is navigable is a question of fact, based upon the facts of each case. For example, evidence that a river or lake was used for commercial transport by boats, barges or rafts tends to establish navigability. On the other hand, evidence that a body of water is too shallow for regular commercial use and has not been used for commercial purposes, but rather has been used regularly only for recreational purposes, establishes that it is not navigable. Although to be navigable, a given body of water must be capable of regular navigation, it is sufficient to show that navigation is possible only seasonally, provided it is capable of navigation in its natural state, not simply because of artificial dredging or improvements.

The conveyance of a parcel “to” or “along” either side of a nonnavigable stream is presumed, absent clear language in the deed or clear parol evidence to the contrary, to convey title to the “thread” of the stream, which is the deepest point in the main channel.

These issues are never as simple as we think they should be, but that’s what keeps us lawyers in business. :professor
 
#19 ·
Probably not. The question "what is the definition of navigable waters?" has been litigated many times in Washington State over the last hundred or so years. Mostly, you'll find that the determination depends on the waterway's use (or potential use) for hauling stuff (usually logs in most the cases) from point A to point B. An outfitter hauling a fishing client probably wouldn't pass the test. But if you've got a good lawyer, $100k, and a judge who flyfishes, you may be able to make a case. :thumb
 
#20 ·
Fish till ya drop.Then suck it up and fish the evening hatch.

I know the answer to this perplexing problem which has varying opinions and differing answers in many states. I worked in civil engineering on property line problems a lot in the past in Washington.

In Washington "Navigable" rivers are public property below the high water line. If the bed of the river changes the access changes with it.....ie Old Meander channels become
private property again.

Most Washington rivers are defined as Navigable because our forefathers who logged floated logs down them to market. There is no precise size definition defining "Navigable" that I know of.

Smaller streams like Raging River may still be considered private if the loggers never used them. Most smaller creeks are NOT considered Navigable.

If in doubt you may be able to find out from Dept. of Ecology in Olympia.
 
#22 ·
As pointed out by a few already, based on the research I have done, whether a stream is private or public depends on “navigability.” A stream is navigable if it can be used for floating logs, basically—a pretty liberal definition. The problem with the Deschutes is that a few years ago, a large logjam got larger, and flooded several private properties. The property owners looked to the county officials to solve their problems by dismantling the logjam, and the county—in its infinite wisdom—declined, stating that the Deschutes is a non-navigable river, and therefore owned by private parties whose land is adjacent to the river. In my view, the county wanted to avoid the cost and liability of clearing the logjam, but the decision had some major implications for persons wanting to use the river.

I followed this issue closely because the Deschutes was my home water for several years. I did as you—access at public areas and wade up or down. By and large, I have had no problems with property owners. When they see you fly fishing and releasing fish, they usually don’t have a problem. A simple wave, or short conversation usually results in an invitation to come back whenever you wish.

A word of caution on the Deschutes, though. The area you are exploring—between the Vail bridges—is probably the most dangerous as far as hostile property owners. Major “Jethro” factor, and a few meth-lab type places. I usually steer clear of this area, or pack heat when I fish around there.

The fishing should start picking up when the water drops a bit. March and April are good SRC months. Pioneer Park, before school gets out in June has easy access, and no property-owner worries. After June, there is a constant inner tube factor.

Drew
 
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