# River fencing?



## FlyDaddy (Dec 29, 2002)

A friend and I were fishing the paint to blow some time off work. We walked upstream from the Paint creek cider mill about a 1/3 of a mile and ran into a fence running across the river. Is this leagal on this river? I did not think you could block the river for passed throughs. Does anyone know the question to this answer, or is there some other reason it is there?


FD


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## WALLEYE MIKE (Jan 7, 2001)

Seems like this was asked last year. I believe N_O took some pic's.

http://www.michigan-sportsman.com/forum/showthread.php?s=&threadid=19733&highlight=paint+creek


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## boehr (Jan 31, 2000)

As long a a stream is a navigable stream you can go around an obstruction or in this case over it may be better. As far as someone puting a fence around their property it is legal providing they do not interfere with the flow of the stream. This happens a lot around farms where they have cattle grazing but it's not the only places.


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## jeremy L (Sep 19, 2002)

So if someone were to put a wire fence across a river that would be ok. How about if this person has also put a damm of large rocks on the river below the fence? The water can go over this damm in high water, but usually is blocked and can only go though as a trickle. 

That is what a farmer has done on willow creek, off huron city road in huron county.


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## boehr (Jan 31, 2000)

No, there are laws stating you need a permit to put in a dam because it does interfere with the flow and interferes with free passage of fish too.


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## unregistered55 (Mar 12, 2000)

I have been researching this since last year. I do not believe the Paint Creek is considered a navigable stream but I could be wrong. IF we could prove it was once used to float logs then we can get it established as a navigable stream...

So far this is as close as I have come:

"Confluence of the Clinton River (foreground) and Paint Creek (right) with paper mill in the background. Addressed to Miss Zay Sipperley of Niagra Falls, New York. 

1911"

A paper mill would probally need logs floated to it...and if these logs came down the paint creek...I am sure ya see where I am coming from...

Here is where I found that info: http://history.rhpl.org/Results/Def...Measurement=.3937&ShowResults=5&Search=Search


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## YPSIFLY (Feb 13, 2001)

I'm guessing that someone would have to go under the fence and be issued a ticket for trespassing for this to go to court. The defendant would have to prove that it is navigable at the trial.

Just a guess.


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## Kevin (Oct 4, 2000)

But don't I understand it correctly that the criteria is that it was at one point officially designated a navigable stream? Not whether or not at one time in histroy, or at the point of confrontation with angler/land-owner/law you could illustrate that it was navigable.

Stream levels change all the time, one could not rely on a good rain or a drought determine whether or not we have a right to wade it, right?

There must be some repository for the official designation _somewhere_. And even if the designation is non-navigable, I say it may be worth challenging


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## unregistered55 (Mar 12, 2000)

Just found this site...looks like the federal government makes the calls on Navigatable Rivers, not the state...here's the link:

http://www.nationalrivers.org/us-law-menu.htm

INTERESTING PAGE THERE!!!:
http://www.nationalrivers.org/us-law-facts.htm


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## unregistered55 (Mar 12, 2000)

Boehr...what is your view on this from that website?


Federal Law fact #1:
"So what are the publics rights to fish and boat on various rivers? 

As explained above, there are three levels of public rights to rivers and streams:

First, the public has the right to use all running waters, (even streams that are not physically navigable,) for activities such as fishing, (subject to state regulations to conserve fisheries,) and to walk along the banks as necessary to use these waters, in the manner that is least intrusive to private land."

Federal Law Fact #2:
"Since having a truly private river could be of real value, some people will never admit that their river is actually public. Whenever a court confirms that the public does have certain rights on rivers, they try to say that the public has only those rights, no others. Instead of recognizing the publics right of access to all running waters and every natural stream, these people try to limit it to only navigable streams, then only to rivers that are navigable in larger watercraft, then only to rivers that have been officially designated as navigable. Or they try to limit public rights to only the surface of the water, or only to touching the beds and banks while boating, not while fishing. All of this is simply a stalling tactic to avoid complying with the law. It is also an enormous waste of time."

Federal Law Fact #3:
"State and local restrictions on river use have to be legitimately related to enhancing public trust value, not reducing it. Rivers cannot be closed or partially closed to appease adjacent landowners, fishermen who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies."

Another Quote from the above site:

"How do I determine if a certain river is public, and what public uses should be allowed on it?

You call the State Lands Office, and the State Attorney General's Office. (The official name of these two offices may vary from state to state.) State law may say that all waters in the state are open to navigation, and may also grant permission to walk along the shore under certain circumstances. If state law allows the uses you are concerned about, then you don't need to look further. If it doesn't, then the question becomes whether the river meets the federal test of navigability for title purposes. If a river appears to be navigable per the federal test, but riverside landowners, or a government agency, or the state legislature says that the river is not navigable, (or if they restrict public uses in ways that conflict with navigability and the public trust doctrine,) then you have a problem, which you can help resolve mainly by educating people about navigability and public ownership of rivers, as discussed below.


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## boehr (Jan 31, 2000)

I have seen that website before and it has some good info and some bad info. Realize that website is by a private organization with their own interpetations of different laws many which have no bearing at all in Michigan. The state courts make the detirmination although as with most things a person may have an option of appealing a decision to the federal level although I know of no cases that ever have been.


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## Joe_G (Feb 7, 2002)

Same situation on Mill Creek, just north of Ruby on US136. Ritchie Rich has fenced the land to the creek, but he didn't run a fence across the water. You can legally wade the creek past the property, he just didn't want people walking his shoreline. As far as I know, it's non-navigable water, yet owned by the people of the state of Michigan........


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## TODDFATHER (Jun 5, 2002)

Joe-g,


You have a conterdiction of terms: Non-navigable, and private, are one in the same in the context of streams! Mr Boehr keeps repeating it, but it doesn't seem to sink in quickly!





Toddfather


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