# Creek trespassing?



## FREEPOP

Thirty pointer said:


> It takes a couple feet of water to float an average log .You are talking a small river as apposed to a stream .The creek on my property is 15' wide and a foot or less deep .You could float limbs not logs .Its typical for most streams .


Read the wording carefully about "at any one time in the year" that is to include spring run off. It wasn't uncommon to dam creeks and rivers to get logs out either.


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## swampbuck

A couple feet to float a log. lol. Maybe if the log's 3' in diameter.


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## Lumberman

Thirty pointer said:


> Your right and some people do not what is dangerous on their property .If an 5 year old climbs your 20 ft tree stand falls and kills himself consider yourself sued .


You can be sued for anything doesn't mean you will win. You might get sued for writing this post. 

What you're talking about is basically insurance fraud and why we need to change the laws. 

You sue for a non winnable case and settle for less then the lawyer fees will be. It should be criminal.


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## Thirty pointer

FREEPOP said:


> Read the wording carefully about "at any one time in the year" that is to include spring run off. It wasn't uncommon to dam creeks and rivers to get logs out either.


That's moot now you cannot legally do it anymore .


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## dead short

Thirty pointer said:


> That's moot now you cannot legally do it anymore .


That's the standard. Some of the streams in my county are like trickles in July and August. Spring time they are high enough to float plenty of logs.


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## Waif

Good luck defining navigable per an individual stream not listed as being such.
Log floating is outdated....and how great a diameter and length log applies? How much " help" can a log driver apply? 
What of previously cleared sand bars ,sweepers ect. allowing an extended float?
The common law definition does not apply to all waters......therein lies the rub.

My non lawful take on it all...is since the " Ne-bo- shone" fiasco , if a stream is not listed as navigable by the D.N.R.' s list...you will need to fight it in court to even try to call it any different.


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## dead short

That is how it would have to be be done. Every one individually as a civil action in court, initiated by landowners. That's why the list of adjudicated streams is so small. Officers certainly can't do it.


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## Waif

The conflict is certainly not limited to Michigan. 
Though Michigan is the local concern.


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## Thirty pointer

Waif said:


> Good luck defining navigable per an individual stream not listed as being such.
> Log floating is outdated....and how great a diameter and length log applies? How much " help" can a log driver apply?
> What of previously cleared sand bars ,sweepers ect. allowing an extended float?
> The common law definition does not apply to all waters......therein lies the rub.
> 
> My non lawful take on it all...is since the " Ne-bo- shone" fiasco , if a stream is not listed as navigable by the D.N.R.' s list...you will need to fight it in court to even try to call it any different.


Exactly right The MSP leo told me if i had any more issues to call and they would set the persons straight .People have all kinds of misconceptions on where they can trespass Power lines ,RR right of ways etc .


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## Waif

Thirty pointer said:


> Exactly right The MSP leo told me if i had any more issues to call and they would set the persons straight .People have all kinds of misconceptions on where they can trespass Power lines ,RR right of ways etc .


A former co- worker used to push his luck by walking a frozen creek to a private lake in winter.
While it could be argued a grey area ,it would probably go to a landowner or lake association keeping him out in court.


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## 357Maximum

http://michiganlakes.msue.msu.edu/uploads/files/FAQ Page/MI Water Laws.pdf


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## dead short

Waif said:


> A former co- worker used to push his luck by walking a frozen creek to a private lake in winter.
> While it could be argued a grey area ,it would probably go to a landowner or lake association keeping him out in court.


Yep. Frozen navigable waters can be used in the same way as when they are in a running state.


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## slowpaya

if you don't want people on your property, post it,they will be breaking mich trespass law


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## Boardman Brookies

Dead short I read before if the stream is stock OR was ever stocked then it is considered navigable. Also if it maintains a certain cfs as well. Do you know anything about either?


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## dead short

This is what I can find........

A navigable inland stream is (1) any stream declared navigable by the Michigan Supreme Court; (2) any stream included within the navigable waters of the United States by the U.S. Army Engineers for administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States; (3) any stream which floated logs during the lumbering days, or a stream of sufficient capacity for the floating of logs in the condition which it generally appears by nature, notwithstanding there may be times when it becomes too dry or shallow for that purpose; (4) any stream having an average flow of approximately 41 cubic feet per second, an average width of some 30 feet, an average depth of about one foot, capacity of floatage during spring seasonal periods of high water limited to loose logs, ties and similar products, used for fishing by the public for an extended period of time, and stocked with fish by the state; (5) any stream which has been or is susceptible to navigation by boats for purposes of commerce or travel; (6) all streams meandered by the General Land Office Survey in the mid 1800's. Moore v Sanborne, 2 Mich. 520 (1853); Thunder Bay River Booming Co. v Speechly, 31 Mich. 335 (1875); Stofflet v Estes, 104 Mich. 208; 62 NW 347 (1895); Cole v Dooley, 137 Mich. 419;100 NW 561 (1904); Sterling v Jackson, 69 Mich. 488; 37 NW 845 (1888); Collins v Gerhardt, 237 Mich. 38; 211 NW 115 (1926); Rushton ex rel Hoffmaster v Taggart, 306 Mich. 432; 11 NW2d 193 (1943); Diana Shooting Club v Husting, 156 Wis. 261; 145 NW 816 (1914); Muench v Public Service Comm., 261 Wis. 492; 55 NW2d 514 (1952); Nekoosa-Edwards Paper Co. v Railroad Comm., 201 Wis. 40; 228 NW 631 (1930); Lamprey v Metcalf, 52 Minn. 181; 53 NW 1139 (1893); Kelley v Hallden, 51 Mich. App. 176; 214 NW2d 856 (1974).


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## Thirty pointer

So sad that many younger generation hunters and trappers are reading this and thinking they can come upon any small creek or stream and tresspass upon it just because they may think a log could be floated down it at some time in history .It only makes it more difficult For LEOs to do their jobs .Start trapping on my property and you will hit the road fast and your traps will be gone .Do it twice and the law will be called and you will lose .


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## FREEPOP

Thirty pointer said:


> So sad that many younger generation hunters and trappers are reading this and thinking they can come upon any small creek or stream and tresspass upon it just because they may think a log could be floated down it at some time in history .It only makes it more difficult For LEOs to do their jobs .Start trapping on my property and you will hit the road fast and your traps will be gone .Do it twice and the law will be called and you will lose .


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## Thirty pointer

FREEPOP said:


>


Just sayin


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## dead short

Thirty pointer said:


> So sad that many younger generation hunters and trappers are reading this and thinking they can come upon any small creek or stream and tresspass upon it just because they may think a log could be floated down it at some time in history .It only makes it more difficult For LEOs to do their jobs .Start trapping on my property and you will hit the road fast and your traps will be gone .Do it twice and the law will be called and you will lose .


Trapping and hunting is all together different.... it's exclusive to the landowner. 

The problem with navigability is the lack of streams that have been contested and the lack of comparisons to use.


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## Thirty pointer

dead short said:


> Trapping and hunting is all together different.... it's exclusive to the landowner.
> 
> The problem with navigability is the lack of streams that have been contested and the lack of comparisons to use.


I have agreed with you on that point .This has turned into a if you want to tresspass just go ahead .It does no one good especially law enforcement to have this mentality .Common sense goes a long way here .Having been through this having people say they have the right to tresspass will not hold in court .It just clouds the water .


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## FREEPOP

My point of view is it a discussion of the law, what is legal, what isn't and why. 
There are many laws that I personally don't agree with but I will do my absolute best not.
Dead Short is sharing the law with us and I am grateful for that. I am sure there are some he doesn't agree with but he has taken the honorable oath to uphold them. A respectable but sometimes thankless career.


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## MossyHorns

Does the law specify how far the log would have to float down the creek/river? The log may float in one spot, but it may get hung up on a sand bar 10' away.


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## YZman

MossyHorns said:


> Does the law specify how far the log would have to float down the creek/river? The log may float in one spot, but it may get hung up on a sand bar 10' away.


"Floating log test" is just a criteria a court may use in the determination. It is not a "user applied" test. Repost of a case newer than any in "Public Rights" document:
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Planning & Zoning News, November, 1991

A stretch of the Sturgeon River was deemed to be non-navigable because it had no commercial value for log floatage due to its hydro-logical characteristics, the natural objects in the river, and the sharp bending and winding of the river, and was thus closed to the public. Machga Anstalt v. Michigan Department of Natural Resources, Case No. 124804, September 9, 1991, unpublished.
The defendants appealed from a circuit court order which determined that a section of the Sturgeon River was non-navigable and enjoined public use of that stretch of the river that ran through plaintiff's property.
“The title of a riparian owner includes the bed of a ... navigable”
inland stream or lake to the midpoint of the water, subject to a servitude for the commercial flotation of logs, and for fishing ... If a waterway is “navigable,” the public has a right to utilize the navigational servitude for the navigation of vessels, flotation of logs, and, as an incident to the servitude, fishing.”
A waterway is navigable if it may be used for the commercial flotation of logs. The circuit court found that the stretch was not navigable because it had “no commercial value for log floatage due to its hydrological characteristics, the natural objects in the river, and the sharp bending and winding of the river.”

The court affirmed.
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## 9mm Hi-Power

MossyHorns said:


> Does the law specify how far the log would have to float down the creek/river?





YZman said:


> A waterway is navigable if it may be used for the commercial flotation of logs.
> ---------


Yes, a waterway is navigable if it can float a log but there are other criteria determining the navigability of a waterway.

http://michiganlakes.msue.msu.edu/uploads/files/FAQ Page/MI Water Laws.pdf

"The Michigan Court of Appeals in Kelley v Hallden, supra, concluded that recreational uses alone could support a finding of navigability...."

"The court in their deliberations rejected the former definitions of navigability fixed by reference to activities, such as log floating, which no longer play a significant role in the utilization of Michigan's waterways, in favor of a concept that the navigability of a stream or river should depend upon the uses to which waterways are currently susceptible. This latter concept is supported by Moore v Sanborne, supra. "

Hope this helps but admittedly there are a lot more legal questions and fewer legal answers then implied by the above quotes. But....hope this somewhat helps.

9mm Hi-Power


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## Waif

9mm Hi-Power said:


> Yes, a waterway is navigable if it can float a log but there are other criteria determining the navigability of a waterway.
> 
> http://michiganlakes.msue.msu.edu/uploads/files/FAQ Page/MI Water Laws.pdf
> 
> "The Michigan Court of Appeals in Kelley v Hallden, supra, concluded that recreational uses alone could support a finding of navigability...."
> 
> "The court in their deliberations rejected the former definitions of navigability fixed by reference to activities, such as log floating, which no longer play a significant role in the utilization of Michigan's waterways, in favor of a concept that the navigability of a stream or river should depend upon the uses to which waterways are currently susceptible. This latter concept is supported by Moore v Sanborne, supra. "
> 
> Hope this helps but admittedly there are a lot more legal questions and fewer legal answers then implied by the above quotes. But....hope this somewhat helps.
> 
> 9mm Hi-Power


Yep. Clear as mud!


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## YZman

9mm Hi-Power said:


> Yes, a waterway is navigable if it can float a log but there are other criteria determining the navigability of a waterway.
> 
> http://michiganlakes.msue.msu.edu/uploads/files/FAQ Page/MI Water Laws.pdf
> 
> "The Michigan Court of Appeals in Kelley v Hallden, supra, concluded that recreational uses alone could support a finding of navigability...."
> 
> "The court in their deliberations rejected the former definitions of navigability fixed by reference to activities, such as log floating, which no longer play a significant role in the utilization of Michigan's waterways, in favor of a concept that the navigability of a stream or river should depend upon the uses to which waterways are currently susceptible. This latter concept is supported by Moore v Sanborne, supra. "
> 
> Hope this helps but admittedly there are a lot more legal questions and fewer legal answers then implied by the above quotes. But....hope this somewhat helps.
> 
> 9mm Hi-Power


Continue reading rest of document you referenced:

Had it not been subsequently overruled, Kelley v Hallden would have established a landmark decision in the annals of navigability litigatiion Michigan. But in 1982 Hallden was overruled by the Michigan
Supreme Court in a trio of cases. The Supreme Court rejected the
recreational-boating test and cited "the need for a comprehensive
legislative solution."


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## toto

Water law is probably about as difficult as any law. What I know is ONLY the Michigan supreme Court can make the final determination. Kelley was overturned as stated, it also needs to be stated that if the river in question has ever floated logs in the old days, it's navigable, no court will overturn that. At this time there are only 3 rivers/creeks/streams that have been adjudicated as non navigable and one of those is only partially so (sturgeon). If you look Collins v gearhart you find what is most likely the first instance of this problem. Dead short touched on something else that you missed. IF a stream is adjudicated to be non nav but at ANY time has been planted with fish the DNR, you, the land owner, are not allowed to fish it either if the public is not allowed in, or doesn't have legal access point. There are several ways to legally acceas a stream, but that isn't the point here I don't believe. I will say though using a RR crossing or RR tressle is NOT one of them. This property is owned by the RR and that would be considered trespass. In the end your DNR officer is incorrect in stating your stream is non nav unless it is one of the 3 that has been adjudicated as such.


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## YZman

toto said:


> Water law is probably about as difficult as any law. What I know is ONLY the Michigan supreme Court can make the final determination. Kelley was overturned as stated, it also needs to be stated that if the river in question has ever floated logs in the old days, it's navigable, no court will overturn that. At this time there are only 3 rivers/creeks/streams that have been adjudicated as non navigable and one of those is only partially so (sturgeon). If you look Collins v gearhart you find what is most likely the first instance of this problem. Dead short touched on something else that you missed. IF a stream is adjudicated to be non nav but at ANY time has been planted with fish the DNR, you, the land owner, are not allowed to fish it either if the public is not allowed in, or doesn't have legal access point. There are several ways to legally acceas a stream, but that isn't the point here I don't believe. I will say though using a RR crossing or RR tressle is NOT one of them. This property is owned by the RR and that would be considered trespass. In the end your DNR officer is incorrect in stating your stream is non nav unless it is one of the 3 that has been adjudicated as such.


A court ruling could technically get appealed to U.S. Supreme Court. There are plenty of lower court decisions on navigability, that parties involved, did not/were not appealed upwards.

Where is this statute/legal reference stating that if DNR decides to plant fish, riparian of non-navigable water, if they prohibit fishing by public, cannot fish themselves? That would be “takings” and would not withstand a constitutional challenge. Another false item, sometimes stated, is that if the DNR plants fish, waterbody is then navigable. If that were true, they could plant any stream they wish to set navigability on, Court already has stated they don’t have that authority (Bott).

An inland, non-tidal stream is presumed, by U.S. Compiled law, non-navigable unless Court, statute, Army Corp, etc, states otherwise. U.S. Supreme Court recently reminded EPA of that. Further, if you wish to ignore that, Recreational Trespass statute only allows access to a navigable waterway, that would be a legal one, not one the offending party's opinion is.

Further, if you trespass, District Attorney prosecutes for land owner, trespasser will either get own attorney or have one appointed, which they still may end up paying for. It costs land owner nothing, in terms of cash outlay, win or lose. Determination of navigability is a civil matter, in other words, you don’t determine navigability through a criminal trial (Rec Trespass), it was or it was not at time of offense. Prosecutor does not represent a landowner for the civil matter of determination of navigability, riparians own attorney would do that.


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## toto

Look, I am not going to go round and round about this with you again. I will just say one may not use public funds for private use, in this case. You may want to read the book by Dan summer field, he did a ton of research on this, and his facts are verified. You and I discussed this before and it was discovered you have personal stake in this opinion.


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## Big Frank 25

https://www.michigan-sportsman.com/...anation-of-a-fishing-law.281920/#post-2633414


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## PET

Do you guys agree that I can walk into given lands/waters as long as they are suggested NOT to be owned by someone other than the government? I appreciate your suggestion. 

https://www.acrevalue.com/map/MI/?lat=43.950504&lng=-86.218095&zoom=15


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## FREEPOP

PET said:


> Do you guys agree that I can walk into given lands/waters as long as they are suggested NOT to be owned by someone other than the government? I appreciate your suggestion.
> 
> https://www.acrevalue.com/map/MI/?lat=43.950504&lng=-86.218095&zoom=15


No


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## PET

FREEPOP said:


> No


Thank you very much for your suggestion. Is that (your 'no') because the parcel lines/property lines are inaccurately drawn on the website? I truly appreciate your insight.


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## Hauptmann6

PET said:


> Do you guys agree that I can walk into given lands/waters as long as they are suggested NOT to be owned by someone other than the government? I appreciate your suggestion.
> 
> https://www.acrevalue.com/map/MI/?lat=43.950504&lng=-86.218095&zoom=15


No, what is being discussed in this thread is being IN the stream. Not access to the body of water. You can be in the body of water, but if you step onto the shore you are trespassing.


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## PET

Hauptmann6, Thank you very much for your suggestion. I appreciate if you could share your opinion on the attached figure. I fully agree that I would be treated as a trespasser if I step onto the land designated as a private land (areas within the orange lines).

Do you think it is still trespassing, in case I step onto the shore suggested NOT to be a private land based on the following website?
https://www.acrevalue.com/map/MI/?lat=43.950504&lng=-86.218095&zoom=15




Hauptmann6 said:


> No, what is being discussed in this thread is being IN the stream. Not access to the body of water. You can be in the body of water, but if you step onto the shore you are trespassing.


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## FREEPOP

PET said:


> Hauptmann6, Thank you very much for your suggestion. I appreciate if you could share your opinion on the attached figure. I fully agree that I would be treated as a trespasser if I step onto the land designated as a private land (areas within the orange lines).
> 
> Do you think it is still trespassing, in case I step onto the shore suggested NOT to be a private land based on the following website?
> https://www.acrevalue.com/map/MI/?lat=43.950504&lng=-86.218095&zoom=15


Those lines are not very accurate, the description probably goes to the bank or the opposing bank. I would consider all that property private. * If it is navigable water*, you can wade it and get out of the water to move around obstructions but you must immediately get back into the water after the obstruction.


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## PET

FREEPOP, Thank you very much for your follow up, which has improved my understanding. 



FREEPOP said:


> Those lines are not very accurate, the description probably goes to the bank or the opposing bank. I would consider all that property private. * If it is navigable water*, you can wade it and get out of the water to move around obstructions but you must immediately get back into the water after the obstruction.


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## Hauptmann6

PET said:


> Hauptmann6, Thank you very much for your suggestion. I appreciate if you could share your opinion on the attached figure. I fully agree that I would be treated as a trespasser if I step onto the land designated as a private land (areas within the orange lines).
> 
> Do you think it is still trespassing, in case I step onto the shore suggested NOT to be a private land based on the following website?
> https://www.acrevalue.com/map/MI/?lat=43.950504&lng=-86.218095&zoom=15


You are really trying too hard. If it's public land, you can cross it. But make DAMNED sure it's public. Private property is private property. And trespassing tickets aren't cheap.

Get in the water at a public access and get out at a public access. Don't try to be cute.


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## PET

Hauptmann6 said:


> You are really trying too hard. If it's public land, you can cross it. But make DAMNED sure it's public. Private property is private property. And trespassing tickets aren't cheap.
> 
> Get in the water at a public access and get out at a public access. Don't try to be cute.



Thanks, Hauptmann6. I will abide by the law.


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## JWICKLUND

pavwa said:


> If I own the property in either side of a creek would it be trespassing if someone was in the creek? It is non passable by boat if that makes a difference.


If you own both sides of the creek then you own the bottomlands and have exclusive hunting and trapping rights to that creek. You do not own the fishing rights and someone can use that creek legally to fish providing they are in the water.


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## Splitshot

toto said:


> Here ya go:
> 
> https://www.smashwords.com/books/view/17120


Thanks Bill.


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