# wading rights on creeks



## Bucket-Back (Feb 8, 2004)

If the stream has submerged logs leftover from the logging days, it's navigable and has been used for commerce, making it legal to use.


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## toto (Feb 16, 2000)

Quest, thanks for that, but I wouldn't bother asking the landowner, I'm pretty sure what he'd say.:chillin:


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## YZman (Mar 4, 2004)

Bucket-Back said:


> If the stream has submerged logs leftover from the logging days, it's navigable and has been used for commerce, making it legal to use.


How do you know they're leftover from logging and not old fallen/forest fire trees? I've seen fallen trees in streams cut just to clean free flowing path; sometimes they break away and float further downstream. 
If you really want to to a rivers history, check local libraries. Very interesting pictures and reading, even though most real old books seem to lack a table of contents. Can be a entertaining rainy day outing, I can lose hours just looking at old photographs.


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## toto (Feb 16, 2000)

Kind of a dumb question, but if the logs were cut to clear a path, wouldn't that mean it is capable of floating a log, and therefore navigable?? Just askin.....


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## YZman (Mar 4, 2004)

No, they can't freely float and stick to bottom. Clearing is required to stop flooding of roads and land. When cut down in length, heavy rains can dislodge.


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## toto (Feb 16, 2000)

I can't remember now, and I'm too lazy today to look it up, but it seems to me that the floating log test concerns logs that are something like 6", or maybe 8", like I said I can't remember now. It would interesting to find out though, in that case.

The one thing I've gleaned from this particular thread is just how confusing this whole issue is. What we need to find out is the definative answer, but the problem is, no one seems to know, and that includes LEO's, CO's, and property owners. I can see where property owners might be against the wading of their particular stream, they honestly think they paid for it, its thiers, and in some cases it may even say something about it in their deed, but when it comes to a defined navigable stream it just ain't so. There are different definations of navigable as well, which only creates even more confusion, we have navigable in fact, which would be a river say like the Big Man. I can't remember the exact wording of other definitions, but in most cases it is agreed that if you can float a small water craft, it is navigable. By that they mean a small row boat, canoe, or the newer float boats, therefore if they are able to float these waters, it would probably be considered navigable. The problem with the log test is that that is talking about commercial logging from days past, and its hard to prove that test these days, so they have to come up with a better defination of navigablity.


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## Jones (Mar 5, 2010)

Tigerfly said:


> He told me I could not fish that part of the stream because he pays tax on that particular piece of land. After I protested briefly, stating I didn't believe anyone could own the water, I left.





Tigerfly said:


> If I owned property on a narrow trout stream, I don't think I would want many or any people fishing near my back yard either.
> 
> Tight lines to all


I'm a bit confused, first you say that you "protested" and that the issue "bugged" you, but a couple posts later you then say if you owned property on a stream, you would do the same thing. Are you saying that you would want the right to wade on others property, while at the same time keeping your own property exclusive?

I can't help but think if any of the the founding fathers were still alive and saw how privatized fishing in general has become, they would have explicitly written in the publics right to wade/fish streams, instead of letting the courts interpret what exactly riparian rights were years later. 

My family owns property on a Michigan trout stream, and are more than willing to let people walk the banks in search of fish. I don't stock the trout, so why would I prevent others from catching them?


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## YZman (Mar 4, 2004)

Problem with wishing for a definite answer and you may end up with similar to other states. Some have adopted as long as your floating, you're OK, touch the bottomlands and you're trespassing. No wading. Does make it clear cut though.

The philosophy is water or air, as it passes over someones property, they're in control.


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## Tigerfly (Feb 2, 2007)

Jones said:


> I'm a bit confused, first you say that you "protested" and that the issue "bugged" you, but a couple posts later you then say if you owned property on a stream, you would do the same thing. Are you saying that you would want the right to wade on others property, while at the same time keeping your own property exclusive?
> 
> I can't help but think if any of the the founding fathers were still alive and saw how privatized fishing in general has become, they would have explicitly written in the publics right to wade/fish streams, instead of letting the courts interpret what exactly riparian rights were years later.
> 
> My family owns property on a Michigan trout stream, and are more than willing to let people walk the banks in search of fish. I don't stock the trout, so why would I prevent others from catching them?


 
To clear things up, it bugged me because I do believe the stream to be navigable. To be more clear, if I owned property with a _small spring creek_, I would not want others to fish on my property. Back to the first statement, I do not believe I was trespessing at the particular time. In no way am I saying I have the right to trespass and others do not. Sorry if there is confusion.


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## toto (Feb 16, 2000)

Yz, as a question, are we talking about navigable water or non nav? Cuz if you are speaking navigable, that is not a true statement.


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## Tigerfly (Feb 2, 2007)

Jones said:


> I'm a bit confused, first you say that you "protested" and that the issue "bugged" you, but a couple posts later you then say if you owned property on a stream, you would do the same thing. Are you saying that you would want the right to wade on others property, while at the same time keeping your own property exclusive?
> 
> I can't help but think if any of the the founding fathers were still alive and saw how privatized fishing in general has become, they would have explicitly written in the publics right to wade/fish streams, instead of letting the courts interpret what exactly riparian rights were years later.
> 
> My family owns property on a Michigan trout stream, and are more than willing to let people walk the banks in search of fish. I don't stock the trout, so why would I prevent others from catching them?


I also was trying to see both sides, from the point of view of the landowner. I brought the question to attention because I do not wish to trespass.


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## YZman (Mar 4, 2004)

I wasn't speaking Michigan, but a few other states with more stringent laws.


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## Splitshot (Nov 30, 2000)

quest32a said:


> Thats not how I understand it at all. If it is not on either list it means it is yet to be determined. It does not mean it is navigable and therefore legal. It means there is no precedent for that stream. I do believe the landowners do still have some rights if the stream hasn't been determined either way.
> 
> Telling someone to just go ahead and wade it isn't what I would consider good advice.


John,

In the last year, I have spent considerable time reading US Supreme Court cases and the Public Trust itself. The basic concept of the PTD is that the states have an obligation to hold in trust for the public all of our public waters. There are several test to prove if stream or river is navigable or not. If any stream has been meandered (surveyed) by the U.S. Geological Service, if it has ever been used for any commercial use, has a flow or 41 CFS and a couple of other tests it is deemed navigable and no law suite is necessary.

The court takes the position in the public interest that any stream that is not so designated is navigable until the federal courts decide otherwise. In practice many property owners and law enforcement officers and local courts dont understand the law and often decide that a stream is not navigable because it cant float a log in their opinion. 

While Toto is correct, I too would advise against any confrontation. The book Forever Free: Your Right to Fish Michigan's Inland Lakes and Streams by Dan Summerfield is an excellent one. What Dan wrote is pretty much what the MDNR fisheries division will send you if you ask for the information on what your rights are on Michigan waters.

I already know that people who own property on public waters will disagree with me and point out where some CO and court found someone guilty of trespass, but that dont make it so. My advice is to check it out for yourself.

I dont know about you, but Im not willing to give away my rights to fish because one person believes the stream is not navigable, just like Im not going to drive down a public two track because someone illegally put up one no trespassing sign especially if I know it is not private.



Tigerfly said:


> Thank you for all of the insight. There are a lot of technicalities and I agree, it is best to ask a landowner if there is a question.
> If I owned property on a narrow trout stream, I don't think I would want many or any people fishing near my back yard either.
> 
> Tight lines to all


This is a common concern. We dont want to infringe on other people simply because we want to get along. Public water is no different than a public road. If you had to pick something up and the only parking spot was in front of someones house and when you parked there and the homeowner came out and told you werent allowed to park there, would you move? Perhaps, but since it was a public road and there were not official signs telling you not to park there that person does not have the right to make you move. Why, because he doesnt own it and living next to it does not give him any special rights to it.

This public stream is no different. It exist for all of the public not for the guy who owns a lot and by not allowing you to walk along the bank keeps you from your right to fish there. If a public citizen had to prove that a stream was navigable for the public to gain access they would call it the Private Trust Doctrine. Of course it is not and is why the court takes the position that a stream is navigable until the federal court decides differently. 

The reason there are only 3 rivers in the state that are not navigable is because it is so expensive and time consuming to go through the courts. Instead local land owners and other private interest groups try to state a stream is not navigable or push for other laws in an effort to keep the public off what you and the public have a right to use.

One of the goals of the Great Lakes Fishing and Sporting Alliance (GLFSA) is and to educate our LEOs and local prosecutors of what the law actually says so we can all enjoy and make the most of what our natural heritage has to offer. Once you understand what your rights are, it is easier to defend them. Want to learn more, check out http://www.nationalrivers.org/states/mi-law.htm


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## blahblah (Oct 8, 2008)

in all technical terms streams are public until proven private through the courts. unfortunately due to the time and effort required to sort through all of that the legal system would work backwards. with an insistent landowner and LEO a case of a common recreational trespass ticket might never get all of that consideration unless the defendant in the case were willing to take things to a higher court.


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## YZman (Mar 4, 2004)

Courts don't take ANY position on stream and there are NO STATUTES stating that either, cases are decided by Michigan state courts. At the time that Document (PUBLICRIGHTS) was done by Cooley Law School, they only looked at cases that made it to the Michigan Court of Appeals and Michigan Supreme Court.

The hard issue is a landowner can take you to court and you'll have to pay for your, and possibly his/her attorney fees. This is how cases come about. Or you (or NRC) take landowner to court. There are numerous cases that have been decided in local courts, and I know of no list for local court rulings, without going to courthouse. That's why you may wish to talk to a local CO. Courts work off "finding of fact", so you need to have your research ready, lawyers charge by the hour and the more you can give them, the less your bill will be.

Recent cases I've research, it's the NRC vs landowner; probably because of legal fees. If NRC (DNR) doesn't wish to pursue case, you may want to analyze76 why. Sometimes decisions are made when the road commission wishes to replace a bride or culvert. Again, there is NO ruling or statute that states a undeclared stream is navigable or non-navigable.


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## METTLEFISH (Jan 31, 2009)

Splitshot said:


> John,
> 
> This is a common concern. We dont want to infringe on other people simply because we want to get along. Public water is no different than a public road. If you had to pick something up and the only parking spot was in front of someones house and when you parked there and the homeowner came out and told you werent allowed to park there, would you move? Perhaps, but since it was a public road and there were not official signs telling you not to park there that person does not have the right to make you move. Why, because he doesnt own it and living next to it does not give him any special rights to it.
> land owners and other private interest groups try to state a stream is not navigable or push for other laws in an effort to keep the public off what you and the public have a right to use. End QUOTE
> ...


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## triple-e (Nov 2, 2010)

It seems to me if you need permission to hunt or trap the waterway from the landowner you should need permission to wade in the waterway. I feel that it is trespassing. I have seen property lines described to be at the center of rivers and or streams and follow along them so that is saying that the property that lays beneath the waterway is privately owned therefore you must need permission to affix something or to be standing on the property. Which if you are in a boat and you have gained access to the body of water legally there is no problem as long as you stay in the boat. So with all that being said you mine as well ask for permission. Better to make friends rather than enemies 

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## Redbad (Apr 30, 2008)

The problem with wading rights on creeks for both fishermen and for property owners is that while a lot of ink is spilled in the Michigan Constitution and compiled laws on the rights afforded to "navigable streams" in Michigan, no statutory definition was ever given to the term "navigable stream". The legislature passed the buck to courts to determine on a case by case basis which streams in Michigan were "navigable" and any stream which has not been subject to litigation is in a grey area.

Use of navigable streams and their banks means that the user is not subject to the recreational trespass act. The recreational trespass act also requires the landowner to take affirmative steps to alert potential trespassers that they are entering an area where they will be trespassing (this would include placing signs and fencing). Navigable waters cannot be blocked by fencing or restricted to the public (landowners who do so would be at risk of criminal prosecution and a fine of $25 [MCL 230.4]).

The list of streams determined to be "navigable" referenced in a previous post are all safe streams to wade without fear of the RTA. I suppose that a trip to a county historical museum or a library with extensive local historical records might turn up records of additional streams being used historically for logging purposes (official records are much better than unofficial logs found in the stream) and might prove useful in a court action to determine "navigability" either in defense of a RTA violation or for purposes of a declaratory judgment. 

It would be far simpler for everyone if the legislature were to pass a law that determined the stream beds in Michigan to be subject to the doctrine of public trust. It is far less of a concern to go fishing in Montana, where all streams are subject to the public trust doctrine than to go fishing on a remote stream in Michigan which might or might not be "navigable".


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## toto (Feb 16, 2000)

The streams that are covered under the public trust are all of them, with the exception of 3, which I don't even know which ones they are now. There is a document, other than the PTD to show your rights on navigable water, and that is the Northwest Ordinance, which BTW is one of the 4 organic laws of the United States.

What I find really interesting in this debate is the fact that every one has an opinon, and FEELINGS. When it comes to the law, feelings have nothing to do with it, emotions play no part in the law.

I do think that a more definative description of navigable should be made, but there is also one other part to navigabiltiy test, and the meander line that splitshot mentioned above, but just breezed past. For a little backdrop, meander lines are lines of river banks that weren't able to be surveyed due to the way they meanered, and flowed through areas unaccessible, thererfore the line of the river "meanders" around some. If the river has been meandered, than it too is considered navigable.

BTW, fishing and trapping have two different set of rules on navigable streams, for instance, you may not set a trap on the bank of the river, if the property you are setting on is private, which makes sense.


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## Greener (Mar 8, 2012)

Simple question. Does the land owner just down stream of the Allegan dam on the south side of the river have the right to keep people from standing in the river and fishing in front of his property?


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