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3. Private vs. Public, Page 2

the navigable waterway issue took front and center some years back with the battle between canoe liveries and (fly esp) fisherman on the AuSable system. Michigan's navigable waterways were said to be those capable of carrying on commerce. Evidently this applied to canoe traffic. To this day, there are many canoes rented on the AuSable.

http://law.justia.com/cases/federal/district-courts/FSupp/7/885/1908996/

For the Michigan posters...Club Ne Ba Shone near Luther Michigan was/is a private club that owns miles of the Pine River. This is the case that set the rules thereafter for public access.

Rogue was correct...You are allowed to wade in the river as long as you entered the river at a public point without trespass. Ne Ba Shone tried to stop any folks from coming downstream.

If you entered the river at a legal access and come to a section of stream that is too deep for you to wade through, you are allowed to get out and walk around the deep hole, and then get back into the stream. This doesn't mean you can walk up to the house on the property and peek in the windows. :)

My uncle's 80 acres butts up to Club Ne Ba Shone. My cousin shot a deer on their property, it jumped the fence onto the Ne Ba Shone property. He was tracking it when a caretaker came up and chased him off and would not allow him to follow the deer.

The Navigable Rivers Act...If it once floated logs during the logging days in Michigan the waterway applies to the the public's right to wade it. As long as there was no trespass to get to the part of the river flowing through private lands.

I thought this guy was persona-non-grata in PA? I remember some heated battles here on this site the last time his name came up.

In England, from what I understand, there is little to no public stream access. All the streams run through "landed-estates". The general public fishes in stocked reservoirs and even have to pay sometimes to do that.

These issues have been with us a long time and as the population continues to expand, probably will be with us for a long time to come.

I told the story here about fishing this past summer all night and getting a little loud, I guess, not knowing really that there was a home nearby...I woke everyone up in the house. It was 4:00am. I told this to a friend of mine and he called it the "River Tax"...Something that those that live on the river have to put up with when us lesser plebs drink too many Molsons and fish in front of the house at 4:00am. :)

Property rights are a sticky issue.

On the Au Sable, back in the 80's a couple sections were designated catch-and-release. Some state legislator had a cabin on the river, probably purchased after the rule change, and he had a couple young boys. He pushed a rule through allowing young children the right to fish with any type of tackle and to keep some fish. Even after Rusty Gates offered to outfit the guys kids and teach them how to fly fish...He was trying to prove some point I guess and was successful at it.

Myself...I have trespassed a particular property for 25 years. Some places owned up there are only used by the property owners on high holidays. You may have heard the expression, "he has trespassed there so much he thinks he owns it"...Well a guide friend likes to tell me, "Spence. You have trespassed there for so long the owners think you may own it. They're not completely sure!" :)

As Jonathon has said above somewhere, we are spoiled here in Michigan...We use to call it the "Water, Winter, Wonderland" when I was a kid. We are surrounded by water...If we had our way we'd flood Ohio and make ourselves an island instead of a peninsula! :) Go Blue! Go Green! Go White! We beat Ohio twice this season...Finally! They have been running rough shod over us the last several years.

Spence

Just for the record, the Pine River that Spence is referring to is not the same as the one that I fish in Alcona County. I'm beginning to suspect that there's a "Pine River" in every Michigan county!!

I certainly feel spoiled, my local waters have plenty of public access, which is in reality both a blessing and a curse because the public pounds some of these waters pretty hard. I still manage to catch plenty of nice fish though as you all have seen from my posts. My latest lucky spot is a small stocked lake (with rainbows, plus native abundant big perch!) in the Huron National Forest that few people fish during the warm season, as you have to haul a canoe or kayak one mile back on the trail from the car to the water. Amazing how few people are willing to do this, I have only once run into someone else there with a boat in five seasons of fishing the place, and you really can't catch much from shore. And it takes me all of one hour to get there, 40 minutes in the car and 20 pulling the kayak on wheels...

Heck, they just created a special regulation section on the little Paint Creek trout stream down in the suburbs, 14-inch minimum limit, 2 per day, artificials only, for fly fishers who don't live up here in Outdoorsman's Paradise...yep, we're spoiled!

Jonathon

P.S. Go State! Big 10 Champs!!!

I don't agree with your rationale to trespass on property where you do not have permission. If you have been trespassing it for 25 years why don't you just ask for permission unless of course you know it won't be given to you.

There is a parking access along a road that parallels the Delaware River. It just so happens that back in the 1800's there was a public road called River Road that went right to the bank of the river and wagons used to ford the shallow riffles there to get on the other side.

Well from the road where I park to the river is about 1/4 mile and then there is a walk of about another 1/4 to get to the pool I like to fish. That is the legal ingress to the river. There happens to be a huge ranch house along the access road to the river. Years ago before the house was built we all used to just park the car and make a straight bee-line to the river of no more than 125 yards. It would take maybe three minutes to get to the water instead of 15 minutes. At the end of the day as it starts to get dark that 1/2 mile walk is really long.

The home owner is a lawyer in NYC I've been told. He bought the house about three years ago and I have never seen him nor have I seen a vehicle parked there. No one I know has seen him. Yet as much as I want to cut through his private, and posted, property I don't because I don't have permission and I respect property laws.

I post my little property on the WB of the Delaware and sometimes when I'm there I'll look out and see some guy climbing out of the river and strolling along my property. I've never let anyone go unchallenged and when asked why they are trespassing they invariably say "I wanted to save some time going down river". It's funny as they had the energy to walk up river but not enough to walk down.

Do the right thing and get permission or do the walk as it is good for us older guys to stave of dementia.

I haven't trespassed for fishing (or much of anything else) since I was a kid and didn't know better (or care). I did get to fish on private property because I am the nephew of a fellow (Uncle Bob) who was assistant to the president of an art institute, and if the security guard questioned my presence I could always say "Bob Yares is my uncle" and they would say OK, have a nice day! Technically not trespassing I suppose, and the fishing was good! Got to fish it when I worked at the adjoining science institute as a teacher for a few months too.

When I lived on Feeding Ground Lake I had to chase trespassers off of my own dock, not just kids who wanted to go swimming there but a guy with a fishing rod who claimed "I've always fished here" to which I replied "I've lived here 3 1/2 years and I've NEVER seen you before! Get off my dock!" If I had a digital camera like I have now I could have taken a photo with a PRIVATE PROPERTY sign right behind him from my kayak...

I don't trespass, I don't recommend it, and I surely don't look kindly upon it.

Jonathon

OK, I'll always ask permission if I can find someone to ask, but if no posted signs forbid fishing, the general assumption on some PA trout streams such as Spring Creek in State College, or Falling Springs Branch in Chambersburg, is that it's acceptable to "trespass," even in folk's back yards. On the other hand, most of Spruce Creek is considered private, signs or no signs, and many landowners will let you know quickly that they don't want you in their "crik" if you wander beyond the George Harvey open section. Different customs and expectations prevail in different areas. So I'm not sure Spence is violating anyone's wishes, especially if he is using the term tongue in cheek. As for Donny Beaver, that [insert expletive] has bought up as much land on good creeks as he could to make a profit, posing as a conservationist, stocking hatchery hogs and claiming they were wild, feeding his pigs dog chow, posting the clearly navigable Little Juniata River and threatening people who floated through, though he had no crown grant other than his own self-proclaimed lordship. The courts have ruled him wrong. So I'm not sure those trespassing in "his" river were ever trespassing in any sense of the word. As some noted, this is a complicated issue.

I think what you are referring to and what Spence is doing are two different things. I agree it is quite openly accepted in many PA waterways like Spring Creek, the Lackawanna, and others that flow through urban areas that if you access the waterway through a public place but once you are in the water if you get out and walk on private property, but stay as close to the water as possible, 99% of the landowners are going to look the other way. But if you walk beyond that imaginary "okay" line and start trampling a flower bed or think no one is looking and take a leak then get ready for immediate expulsion.

It sounds like Spence is parking near where he wants to fish and just walking through private property to get to the water. Would he do it if the property owners are out in the back having a picnic?

Matt, I'd hope he'd walk over to them and say, "Do you mind if I access the stream here?" But, as you say, we don't know what the exact situation is. Only Spence can clarify that.

In a case-by-case navigability/riparian access state like Pennsylvania, the three largest sources of landowner/angler conflict are: 1) the major demographic shift in who actually owns the land 2) ever increasing angler mobility and 3) the proximity of Pennsylvania to (and to some extent, its partial subsummation by..) the East Coast Megablob.

The streams we used to fish as kids flowed through land owned for the most part by people we knew. We saw them at the store and went to school with their kids. We knew them and they knew us or at least knew who we were. With the all but total collapse of the small family farm, most of this land changed hands and this connection went the way of the ten cent Coke. There were now strangers on one end of the interaction and the no trespassing signs began to go up. Amplifying this situation was the relatively new phenomenon of looking out your kitchen window and seeing somebody you're never seen before fishing up through your woodlot or pasture. He might be from Cleveland or DC or New Jersey or a hundred other places and he drove four/five/six hours to fish on your property. Whichever and whatever, he certainly wasn't anybody you knew. Say hello to the modern highly mobile angler.. Now there are strangers on both ends of the interaction and even more no trespassing signs go up.

I remember the first time I drove over to fish in the Poconos. This was in the late 1970's, I think. I was stunned by the amount of posted property I saw. There was nothing like this back where I was from. I did some reading and asked some questions and just observed. I was seeing first hand the effects of a phenomenon I've since heard labeled "Poconoization". They were the camps, cottages, ski resorts and weekend escapes of the folks who who live and work on the highly urbanized east coast and mostly based in the doctrine of "its mine and I can if I want to", virtually everybody posted. Folks who grew up urban or suburban tend to have a significantly different philosophy of property ownership than those of us who grew up rural and largely stayed rural. Back in the late 70's, you didn't hit the Poconoization zone until you got almost to Scranton going East. By now, I'm sure its much worse (farther west..) , if only because we are becoming an increasingly urban/suburban people.

I can't say what is "right" or "wrong" about all this. After all, property rights are what they are and there is certainly nothing illegal about posting your property. I can say though that I deeply regret and to some extent resent what has happened. Then again though, I think they ought to bring back ten cent Cokes and the Zagnut bar...:)

I fished Wisconsin almost exclusively for 15 years. It has a riparian/stream access law even more egalitarian than Michigan's, if that is possible. If you can float a kayak in it on any one day of the year, the stream bed is public. This covers virtually every stream in the state down to about 12" in width. Paradoxically, virtually nobody (that I observed at any rate...) took advantage of or played the edges of this law by fishing up through posted land by staying completely in the stream bed.

I think pretty highly of the Pennsylvania Fish and Boat Commission and its staff. I always have. But if there is one thing I wish we and they would have done long ago, before land prices made it all but prohibitively expensive and the nature of the landowner/angler relationship had not devolved into a meeting of total strangers, it would have been to establish through purchase and lease an extensive statewide system of angler easements similar to that in New York State, Wisconsin or Minnesota.

But, to be fair, who knew things were going to change as radically as they have? Now, it is too late to do anything of the sort to the extent that it needs to be done....

Well...Maybe I should clarify a bit.

The upper Au Sable is a special place. It has had a fly fishing tradition going back to before Edison and Ford fished the North Branch out of the old Douglas Lodge. Most of the branches have been flies only for what seems like forever, and there are two stretches that are catch-and-release.

The property that is private and not state land has historic lodges on it and the rest are cottages and cabins, that for the most part, are owned by folks who fly fish.

There is a stark contrast with other waters in the state that contain migrating salmon and steelhead. Except for the two branches with commercial canoe traffic there is next to zero trash...No empty bait containers. No discarded 12 packs of beer with empty beer cans strewn about. No miles of mono hanging from every obstruction.

The place reeks of fly fishing tradition. One of the historic properties is the Barbless Hook that was once owned by George Griffith, of Griffith Gnat fame, and where Trout Unlimited was formed in 1959. Ernie Schwiebert fished out of the Thunderbird Club. Carl Richards, co-author of Selective Trout, owned the Ginger Quill when he was alive...This is a very short list of folks on a river where many well known anglers have trod.

In all my years there I have never had one single soul say anything about where I walk. I stay away from the structures, and for the most part the folks that don't fish, but own a cottage, only use them on the holidays.

I know when the "old man" goes to sleep, and if I'm not even disturbing the family dog, I might as well be a deer walking through or an old owl watching for dinner.

There have been a couple times when folks along the river have actually helped me off the river in the middle of the night and even drove me down to where my car was parked.

Matt...I'm definitely not tramping on the flower beds. :)

If the truth be known, and not stretched for effect by Spence, as Louis alludes to :), I am more likely to hear, "Spence. Is that you?", than grandpa's 12-gauge going off over my head. ;)

Spence


I use to run into George Griffith and Carl Richards from-time-to-time on their respective docks...Miss that for sure...They were sharing anglers who were happy to see you.

Mostly for the canoes, George use to have a big sign on his dock that read: "Don't let it be said, and said to your shame, that all was beauty here, before you came."

There's still a rock with a plaque that commemorates the founding of TU there.

Side note: George's book, "For the Love of Trout" has a wonderful picture on the dust jacket. It shows Bob Summers poling George down the river in an old Au Sable river boat...A "stick-boat" some call them going back to the logging days and still use by guides on the upper stretches of river.

Bob Summers is a cane rod builder that lives on the famous Boardman River, of Adams Fly Fame,and he use to work for Paul Young, back in the day.

So, this sounds more like Spring Creek than Spruce Creek.

Well Louis...I just read what I wrote to my wife and her response was, "Trespassing is trespassing...You can't sugar coat it by saying you are like a little indian boy going unnoticed across someone's property!"

Oh well! It is what it is.

For the most part the folks that fish the upper Au Sable are known by the land owners as environmentaly conscientious, and lovers of the river...Not unlike they are. We clean the river every year the weekend after Labor Day when the canoe traffic starts to slow down. We work with them and plant cedar saplings on their property with cages around them to try and stave off the gnawing deer.

I do believe that it does say something about a person that knocks on someone's door and asks permission...We all have read the good stories where this was the case both for anglers and hunters. My grandfather had permission on several old Dutchmens farms to chase bunnies when I was a kid in the 60's...

I think that some of the postings up that way are to keep the hunters off the property and liability issues...If its not posted and someone gets hurt there on the property they call the lawyer.

I grew up with these traditions. If someone shows you a fishing spot you aren't suppose to visit it with someone else etc...

I think we are all on the same page here.

Spence

Didn't mean to cause an uproar! Eric has a nice picture from Star Trek maybe I can get him to post here...;)

Hi Spence,

I hear what you are saying and it sounds like where you fish, and the land owners acceptance of people walking, on their property, is like Spring Creek in Bellefonte. I have seen many times anglers walking on the grassy banks of homes walking up and downstream.