Are You Trespassing While Fishing in Missouri’s Streams, Creeks and Rivers?

Most of us have, at one time or another, waded a stream and been approached by the land owner asking us to leave. We question the landowners ability to force us to remove ourselves from a public stream or creek. I thought it might be best before it happens again to research our options and think about the fight. You know sometimes it’s best to just leave after weighing the catch to the location.

Here’s some information I found regarding the subject.

What about fishing Missouri’s rivers and streams?
Public use of Missouri’s float streams often causes conflict with private landowners. Public access to Missouri’s streams has been controlled since 1954 by Elder v. Delcour, a case decided by the Missouri Supreme Court. Navigable rivers and streams are open to all legal use by the public and fall under the control and jurisdiction of the federal government. Case law defines a navigable river as “one that as a matter of fact is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in customary fashion.” (Sneed v. Weber, 307 S. W.2d68, and Elder v. Delcour, 269 S. W.2d17).
In the Elder v. Delcour case, the Missouri Supreme Court concluded that a public fishing right exists upon Missouri’s small, floatable streams. The court ruled that since the ownership of the fish in the stream is vested in the public, the public has a right to fish and to take fish from the streams in a legal manner. The court ruling held that persons floating or wading in the upper Meramec River, following legal entry into that stream, were not trespassing.
The Elder case has been accepted as precedent throughout the state and represents the controlling authority concerning public use of Missouri rivers and streams. Continued lawful and ethical use of Missouri’s waterways will help ensure that right for future Missourians.

What are the rights of landowners?
Private landowners should and do have the right to allow, limit or stop public use of their property. No one can force private landowners to allow the public to use their land.

A common misunderstanding about the Conservation Department’s fish-stocking program is that pond owners must allow public fishing. This is not true. The Department asks that pond owners allow a reasonable amount of fishing but cannot require anyone to open his land to the public.

Landowners posting their land with signs that say “Hunting by Permission Only” seem to experience a better relationship with sportsmen. The landowner still retains the right to refuse access to the public, but the signs don’t seem as susceptible to vandalism.
Private landowners have the right to prosecute trespassers. Conservation agents cannot simply arrest someone for trespassing. A private landowner must sign a complaint. Some landowners are reluctant to prosecute trespassing friends or neighbors, and others are afraid of retaliation if they decide to prosecute. Instances of retaliation are rare in Missouri. NO one can tell a private landowner to prosecute, but landowners who prosecute seem to have fewer trespass problems.
In some instances, trespass is a major problem for landowners and sportsmen, but it doesn’t appear that way in the court system. Only 192 people were prosecuted in 1983 for trespass while hunting or fishing. That’s fewer than two cases per county statewide. Total trespass fines were $7,678. All fine money from fish and games cases goes to the state’s public school system.
Trespass is a problem all sportsmen must face each year. Don’t be tempted to hunt or fish on land without the owner’s permission. Don’t hunt or fish with others who trespass. Sportsmen’s clubs should continue to discourage trespassing, and individual hunters should refrain from crossing the wrong fence. Trespassing on anothers property is breaking the law. Only a combined effort by landowners and sportsmen can solve the trespass problem.
Reprinted from the Missouri Conservationist. Missouri Dept. of Conservation. October, 1984

Keep in mind this applies only to the water and not to the land reference…

Effective date August 28, 1993
569.145 – Posting of property against trespassers, purple paint used to mark streets and posts, requirements – entry on posted property is trespassing in first degree, penalty. – In addition to the posting of real property as set forth in section 569.140, the owner or lessee of any real property may post the property by placing identifying purple paint marks on trees or posts around the area to be posted. Each paint mark shall be a vertical line of at least eight inches in length and the bottom of the mark shall be no less than three feet nor more than five feet high. Such paint marks shall be placed no more than one hundred feet apart and shall be readily visible to any person approaching the property. Property so posted is to be considered posted for all purposes, and any unauthorized entry upon the property is trespass in the first degree, and a class B misdemeanor.

Harry Styron – Ozark Law and Economy

Missouri Navigability Report

Summary

In Missouri, a navigable stream generally is defined as one which can be floated without undue difficulty in the lawful pursuit of commerce or recreation. The public right to navigation extends to recreational boating. Acceptable recreational activities include not only boating but also fishing and swimming.

State Test of Navigability

Missouri, through its case law, has adopted a state test of navigability that makes streams navigable that are “navigable in fact,” very similar to the federal commerce test.1) The “navigable in fact” test looks to see whether or not streams are navigable in their “ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”2) The court, however, distinguishes between a stream “navigable in fact by canoes, row boats and other small craft”, but “not navigable by larger boats and vessels, does not make it a navigable stream.”3)

In Missouri there are no statutes that directly define riparian water rights, but many courts have adjudicated this issue and a riparian land owner is entitled to the right of access and the right of use of the surface of the waterway.4) Additionally, the right to use the surface of a stream or waterway is not restricted to the surface water adjacent to the riparian’s land.5) Instead, a riparian has the right to use the surface of the entire watercourse.6) This right, however, is subject to the public’s dominant right of navigation.7)

Generally, Missouri law states that a riparian owner has a right of “reasonable use” of the water flowing in its natural condition, “without diminution or obstruction,” but has no ownership in the water itself.8 For example, a riparian owner does not have a right to the rocks or fish in the stream. Always keep in mind that Missouri navigable waters are “public highways” and therefore the public has a right to navigate along these waters and to reasonable use.9)

The public trust doctrine applies in Missouri, so the state holds certain lands and waters for the public’s reasonable use. These public rights can interfere with and overcome private riparian rights.10) For example, even though a riparian can construct a dock in an adjacent river or stream, the dock must not interfere with the public right of navigation.11)

Extent of Public Rights in Navigable and Non-Navigable Rivers

The court held that a riparian owner may not obstruct or encroach along the water so as to impede the public’s right of navigation and travel.12) Courts have not addressed the issue of portage.

A person commits trespass in the first degree if he or she “knowingly enter[s] unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property.”13) In order to commit the crime of trespass upon real property, the property must be “fenced or otherwise enclosed in a manner designed to exclude intruders” or as to which notice is given by “actual communication to the actor” or posting “reasonably likely to come to the attention of intruders.”14) Missouri law also provides for no civil liability for adjoining landowners of streams or rivers.15)

Miscellaneous

For more information on water rights in Missouri, please refer to the Missouri Department of Natural Resources, Water Resource Center found at www.dnr.mo.gov.

1) Tomkins v. Monarch Bldg. Materials Corp., 347 S.W.2d 152 (1961).
2) See id. at 156
3) , 6) , 7) , 12) , 14) See id.
4) Myers v. City of St. Louis, 8 Mo. App. 266 (1880).
5) Greisinger v. Klinhart, 321 Mo. 186, 9 S.W.2d 978 (1928).
8 See Missouri State Water Plan Series Volume VII, A Summary of Missouri Water Laws, compiled by Richard Gaffney and Charles Hays, with contributions by William J. Bryan IV, J.D., and Amy E. Randles, J.D. (2000), citing Tyler v. Wilkinson, 4 Mason 397, 24 F. Case 472 (1827).
9) Elder v. Delcour, 364 Mo. 835, 269 S.W. 2d 17 (1954).
10) See Missouri State Water Plan Series Volume VII, A Summary of Missouri Water Laws, compiled by Richard Gaffney and Charles Hays, with contributions by William J. Bryan IV, J.D., and Amy E. Randles, J.D. (2000).
11) State ex. rel. Citizens Electric Lighting and Power Company v. Longfellow, 169 Mo. 109, 69 S.W. 374 (1902).
13) Mo. Rev. Stat. §569.140.1 (2006).
15) Mo. Rev. Stat. §258.200 (2006). Any person owning land adjoining navigable or nonnavigable free-flowing stream or river shall be immune from civil liability for injuries to persons or property of persons trespassing or entering on such person’s land without implied or expressed permission, invitation, or consent…” Id.

CAUTION: Do not rely upon this information for legal advice. See an attorney for legal counseling tailored to your specific situation and needs.

Further writing can also be found regarding streams thanks to the efforts of Harry Styron – Ozark Law and Economy. If you have questions feel free to place a comment and I suggest you take the time to go through their blog, It has a wealth of information.


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