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In another thread the discussion of trespass and access to streams was brought up. Because it was deviating so much from the original topic I thought I'd start a new thread.

There is a rather common misconception that any stream is accesable from a road crossing. This is a myth with no basis in fact.

Here is part of a post that I contributed which refers to the famous (to some of us) Ne-Bo-Shone decision by the Michigan Supreme Court back in the 1930s.

In order to get access at roadcrossings the stream must have, at one time floated logs (lumbering era of the late 19th Century and early 20th Century (U.P.). Most of the larger streams in the state and as small as the Rogue, Maple, Little Manistee, etc. were used for logging drives, thus they were deemed to be "navigatable" and therefore the public could not be barred as long as they did not cross private property.

The case dealt with a private club of wealthy sportsman who owned (the club is still in existence) a large track of land on the upper Pine R. in Lake County. The club fenced off the stream to bar access by wading anglers. The case went all the way to the Michigan Supreme Court which handed down what is known as the Ne-Bo-Shone Decision.

This case still arises now and then and is still being interpretted and applied. In reality it is not a done deal even after about 70 yrs.

On the topic of river/stream access here's some information that you might find helpful.
http://www.michigan.gov/documents/Water97e_142928_7.pdf


From the above document:
Public and private rights are controversial issues that have historically been determined by the courts. Michigan courts have repeatedly held that the public has rights in navigable water. These waters have been defined as any water which in its natural state is capable of and has been used for the purposes of commerce, travel and trade by the customary and ordinary modes of navigation. The floating of logs during the lumbering days was held to be an act of commerce. Consequently, any lake or stream used for this purpose would be considered navigable within the meaning of this term. Thus, the logfloatation test has largely become the yardstick in Michigan to determine the "navigability" of a waterbody, that is, whether public or private.

B. Navigable Inland Stream:
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; 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. 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).

Michigan's approach to the issue of defining navigability has progressed little in the 120 years since Moore, supra, the earliest and still most influential case, was decided. Navigable waters in this state have been divided into two classifications: (1) strictly navigable; and (2) floatable (the latter sometimes termed navigable in a limited or qualified sense). Strictly navigable waters are those capable of use for valuable boat or vessel navigation, i.e., public highways under English common law. Floatable waters, as in Moore, are those suitable, in their natural condition, for the floating of logs. Once it is established that a water is to be included in either classification, public rights attach. The right to public use of navigable lakes and streams includes the right of trespass upon the submerged soil, but does not extend to the uplands of riparian owners while in such waters, or in entering or departing from them. It follows, therefore, that the numerous citations supporting the test of navigability on rivers is also applicable to lakes. The determination of navigability and non-navigability is a civil process. In a 1968 expression of the Michigan Supreme Court on the question of navigability, In re Martiny Lakes Project, 381 Mich. 180; 160 NW2d 909 (1968), the import of Justice Black's majority opinion stated that navigable waters are divided into two distinct classes; namely those navigable in a qualified sense and those unqualifiedly navigable. The court held that streams navigable in a qualified sense were "small streams which by common law belong to the public for the purpose of floatation and fishing" as compared to larger streams which are navigable in the more enlarged meaning of the term, unqualifiedly navigable, i.e., streams which in their natural condition are adapted to valuable boat or vessel navigation (vessels of 10 or more gross tons).

Many are confused concerning the true interpretation of this decision. Justice Black was subjected to considerable unjustified abuse and criticism, but his rationale is deemed correct and in keeping with earlier court decisions, viz., Moore v Sanborne, Rushton ex el Hoffmaster v Taggart, Collins v Gerhardt supra, and Giddings v Rogalewski, 192 Mich. 319; 158 NW 951 (1916).

Some years ago, the United States District Court in Grand Rapids, in the celebrated Pine River, Osceola County case Ne-Bo-Shone Association, Inc. v Hogarth, 7 F. Supp. 885 (W.D. Mich. 1934), established a new precedent. Judge Raymond stated:

It is difficult to see why the right to navigate should include, as an incident thereto, the right to take fish. It is the view of this court that the right to take fish is not an incident of navigation, but a right arising from the fact that the waters, in which the right is claimed, are public waters. Both rights arise from the fact that the waters are public, not private. The rights coexist. Neither finds its source in the other. This opinion may have forestalled many cases of dispute which otherwise would later have reached the courts. However, until this precedent is more firmly established, therule requiring navigability, which has long been accepted, would seem to be the surestdetermination of the public or private character of a lake or stream. Those watercourses located within Michigan which have been declared navigable byeither the Michigan Supreme Court, United States Army Corp. of Engineers or throughLegislative enactment are identified within the Appendix of this document.
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Whit,

I stumbled across that same link a few hours back.(And from all the reading, my brain is starting to hurt.:lol:) I noticed you posted the link here in the forums, which I think was a good idea. Hopefully it will resolve alot of questions, from the previous discussions in the other thread. ;)
 

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What clouds these issues is that the courts have bounced between a couple different tests to determine a navigable stream. I know of a piece of water that at one time was used to float logs (but couldn't now in some parts because of erosion) but can't find written, documented evidence to prove it so it remains closed to public fishing.

I once printed and read an entire document (possibly the same document in the link) and found it very confusing the way the tests have changed in different court proceedings but always thought if there must be a test that this would be the best method.

WHAT ARE PUBLIC WATERS?
THE "FLOATING LOG" TEST AND KEY DEFINITIONS
It should be emphasized here that the terms "public" and "navigable" are synonymous;
likewise are the terms "private" and "non-navigable." This is due to the fact that since
1787, prior to Michigan's admission to the Union, applicable law has stated as "public" all
waters that are navigable and, as "private" all waters that are "non-navigable."
Accordingly, the legal test used to determine "navigability" is the crux of the matter. The
fact that a water is boatable, does not necessarily, in the opinion of the courts, make it
navigable.
Public and private rights are controversial issues that have historically been determined
by the courts. Michigan courts have repeatedly held that the public has rights in
navigable water. These waters have been defined as any water which in its natural state
is capable of and has been used for the purposes of commerce, travel and trade by the
customary and ordinary modes of navigation. The floating of logs during the lumbering
days was held to be an act of commerce. Consequently, any lake or stream used for this
purpose would be considered navigable within the meaning of this term. Thus, the log
floatation test has largely become the yardstick in Michigan to determine the
"navigability" of a waterbody, that is, whether public or private.
 

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The riparian owner may not erect a fence or place a wire or other restraining feature so as to interfere with aforesaid uses by the public. Such placement is not only a restriction of and a hazard to navigation, but is a nuisance, as well as a deprivation of an inherent right of the public. Any member of the public who considers such interference as an invasion of his rights may initiate action in equity (civil suit) to abate the nuisance.
After reading some other information, I guess I found the answer to my own question. (I thought so, that it was not right for the riparian owners to put wire/fences across any water ways.) The best thing to do with this PDF file, is re-compile it yourself, so it is not so complex. :dizzy:

There is presently a great deal of uncertainty regarding the public or private character of
most of the State's streams, particularly the smaller streams. This is due to the fact that
the old, but current, test by which streams are established as public (the floatability of
logs) is fast becoming unprovable. The old rivermen are gone and can no longer testify
that these streams were so used.
Although the public need that created this public right
may have been floatation of logs, a different need has arisen over the past sixty years.
There should now be written into the law a means of determining the public/private
character of a stream without need for judicial determination every time a dispute or the
need to make an administrative ruling arises.
Just curious with the rivermen. How come some of this was not documented? I thought that was kinda strange.
 

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gunrod said:
I know of a piece of water that at one time was used to float logs (but couldn't now in some parts because of erosion) but can't find written, documented evidence to prove it so it remains closed to public fishing.

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That's disappointing, since most of the streams in Michigan have never been formally established as "navigable" and could be subject to the same treatment. Out of curiousity, who decided that particular stream is "closed to public fishing"? It seems like the local police, AND the local prosecutor, would have to be involved to create and enforce this closure. Most of them don't want to be involved in unclear(i.e. hard to win) cases. Your stream must run through the mayor's backyard:rolleyes: .

Also, FWIW, under the original "log floatation" test, it wouldn't matter if erosion has reduced the potential for logs to float the stream. What matters is whether they could float logs at some time in the past. Furthermore, some pretty small streams were actually used to float logs. Supposedly, the lumbermen would dam up a small stream to store up extra water, pile logs during the winter, then during Spring runoff they would blow the dam. Presto, floating logs;).

Butch
 

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Okay I have a question now, does the DNR only plant fish in streams and rivers that are Navigable? In Whit's first post under B. Navigable Inland Stream: and under number 4 it states "and stocked with fish by the state". So if the DNR plants fish in stream here in Ionia county, does that mean I can wade it?
 

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cireofmi said:
Okay I have a question now, does the DNR only plant fish in streams and rivers that are Navigable? In Whit's first post under B. Navigable Inland Stream: and under number 4 it states "and stocked with fish by the state". So if the DNR plants fish in stream here in Ionia county, does that mean I can wade it?
Maybe. Whit's #4 has some other conditions as well, like 41 CFS, 30' wide, 1' average depth. If it meets all the conditions, you have a very good argument that you can wade it. But the courts have the final say, and it takes time and money to fight a ticket if you get one. You might want to call the Ionia county CO, to see about local custom/policy/interpretation.

Butch
 

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Discussion Starter · #8 ·
I PMed Boehr asking who to contact for a list (I didn't think there was one) of navigable streams. He said it has been posted on the site and comes from DNR and the Army Corps of Engineers (whose designation would probably be for larger rivers only. It would be good to find that list and post it in this thread.

Butch brings up a good point in regard to lumbermen damming smaller streams in order to build up water to move logs making the small stream a "logging stream" and thus open for public access at road crossings.

I believe the court decision says (or has been interpreted to mean) that a stream had to have a history of logging rather than merely the potential to float logs.
 

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The rules are really quite broad in thier description. Honestly nearly every stream in this state was once used for commerce. The issue is so many more people own this little 100' section of water and its just not right to them someone can walk through thier backyards. There are a couple little streams I use to fish that hold incredible brook trout. At one time 2 people owned the land The old guy that owned the 60 acres that I use to enter on where it crossed the road. Always would come out back and talk to me and wish me luck. I would clean him a trout or two and take them to his door. Now there are 7 homes on that piece of property 2 years ago. A guy came unglued as I waded He called the cops. they came and talked to me when I waded back out at the end of the day. There was nothing they could do to me they said but I do not want to waste thier time by going back.
The State needs to declare in a very direct manner what is public water. Personally any stream that is known as a trout stream should be open. Since the fish that are there are probably dececandants of State plants.
 

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I have a little rule I follow when I want to fish a section of stream that is not clearly navigable. "When in doubt,ask for permission" It's better for everyone and it lets property owners who may not be fisherman/women that we are decent,respectable people. Well,most of us anyway:lol: .

It's not any different than asking for permission to hunt on someones property and makes for sound public relations. I wouldn't want a stranger in MY backyard,would you?;)
 

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The problem here is that a law is easy enough to enact, and nearly impossible (it seems) to change or erase. When was the last time you saw logs being commercially floated down a Michigan stream? Seems to me if you can canoe it, it should be considered navigable. Maybe that would be way to easy. What commerce is happening on these streams today besides canoeing/guiding?
 

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Butch said:
That's disappointing, since most of the streams in Michigan have never been formally established as "navigable" and could be subject to the same treatment. Out of curiousity, who decided that particular stream is "closed to public fishing"? It seems like the local police, AND the local prosecutor, would have to be involved to create and enforce this closure.

Butch
It is enforced by the police as far as I know but in my limited reading I found that every stream in this particular area was once used to transport logs. Matter of fact this area is the birth place of logging but unfortunately there is nothing specific to this stream so it's hard to prove. All the information is just so far away that I'm unable to really look into.
 

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mondrella said:
The issue is so many more people own this little 100' section of water and its just not right to them someone can walk through thier backyards.

This relates to some issues/arguements also that I used to deal with some other riparian owners, when I was given permission to access some of these streams that are classified as private, "non navigable" so to speak.

As a example, let's say a owner gives you permission to fish a private, "non navigable" stream that runs through their property. (Not road access.) Now, at this time, it would appear that you were given easement rights to the water without the means of trespass. As your walking along the stream bank, you come up to one of those famous NO TRESSPASSING signs sitting along the side of the bank. Then at this time, you would obviously assume that this is pretty much some other riparian owner's property. In a respectful or reasonable matter,(Because I for one would never trespass on another property without one's permission), I descend myself down into the stream/creek from the property in which I was given permission to access the water. I continue my upstream path while "walking/staying within the boundaries of the creek/stream." For those that are true die-hard trout fanatics, you can see where I am going with this.

Now the question would be, would I be able to legally exercise the same right as for those on public waters?

mondrella said:
A guy came unglued as I waded He called the cops.
Yeah, I know the feeling about some becoming unglued.:lol: But, some of these types of people, need to understand that no one "owns the water".(The state, maybe?) As a property owner myself along a river/stream, I don't have a problem if someone fishes in my "backyard", as long as they do not ascend onto the "uplands" of my property, and exercise their right to the water in a reasonable/respectful matter. The last thing I want to see is a heavy footpath along the bankside.
 

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I was told once by a circut court judge that a ruling by the court had to be interpreted in the spirit in which it was issued. For instance, a judgment made in 1800 must be interpreted in 2007 in the spirit of 1800. I wonder if in the 1800's there was as much to do about fishing, wading, canoeing a particular body of water as there seems to be today. I would think that a body of water back then was looked at as an easier way to get from point A to point B more so than someone's private holding.
 

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I mentioned to a CO last year that I thought that if the DNR stocked a stream that made it public and fishable. He agreed with me... with the one exception that you cannot cross private property without permission to get to said stream... so therefore road crossings were the most "legal" way to get into the stream.
 

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Good Day,

Man how I do not like the "ambiguity" of this. It is open to too broad an interpretation as it now sits. I wish the law were more clear. Then we wouldn't have any issues. Such as legal to high water mark, or as long as you do not get out of the water (as in cross land), or like in New Zealand with the Queensway, which allows for access 3 meters from the waters edge, after that you are on private property. Something certainly does need to be done to make this a clear and concise issue.

Steelie
 

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Discussion Starter · #17 ·
http://www.michigan.gov/documents/Water97e_142928_7.pdf

The above URL leads to a MDNR document that discusses these issues. Pages that are pertinent to this discussion include: pp.7-11 and pp. 20-14.

Notice page 10 where a law proposed in 1969 that would have more clearly defined "public waters" had easy sailing in the Michigan House of Representatives, but never made it out of committee in the Michigan Senate due to the intense pressure put on the senators to kill the bill by special interest groups.

If you feel such a measure should be revisited and enacted it would behoove you to contact your State Representative and Senator.
 

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Good Day

Thanks Whit!

This will always be a contentious issue. Just like beach access on the big lake. If this gets to comitee again, be ready for a knock down drag out fight. And with other states siding more and more with private land owners, this could be devestating to many fishermen unless we really get organized.

Steelie
 

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axisgear said:
I have a little rule I follow when I want to fish a section of stream that is not clearly navigable. "When in doubt,ask for permission" It's better for everyone and it lets property owners who may not be fisherman/women that we are decent,respectable people. Well,most of us anyway:lol: .

It's not any different than asking for permission to hunt on someones property and makes for sound public relations. I wouldn't want a stranger in MY backyard,would you?;)
READ THIS POST WELL!
 

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axisgear said:
I have a little rule I follow when I want to fish a section of stream that is not clearly navigable. "When in doubt,ask for permission"
I guess it depends on you definition of "clearly navigable" . I don't fish streams that I don't think are "clearly navigable" because I like to cover quite a bit of water quickly(always wading in the water, or just getting out to go around an obstacle) and I don't want the difficulty of lining up all the permissions I would need. But if I fish a stream I think is "clearly navigable" based on a comparison to the streams that have been adjudicated and I encounter 'posted' signs or an overly possessive landowner, I'm not going to ask for permission. That would just encourage their mistaken belief that they have a right to exclude me from the river. And yes, I'm also a riparian owner on a stream that has not been adjudicated, so I know what it's like when the shoe is on the other foot.

Butch
 
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