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andyk 10-02-2017 04:33 PM

Beginner Question - Private Land?
 
Hi Everyone,

I have a "beginner" general question about fishing through or around private land. I searched the forum and found something that may be helpful but just want to verify...

If you encounter private property/no trespassing signs, are the streams that run through the area considered private, or public? If I were to wade through the water, and not walk on the land, would that be acceptable?

This came up recently when I fished East Verde near the third crossing and Oak Creek in Cornville. I want to be respectful of others' property, but also want to fish all the nice looking spots! Any thoughts on what is allowed or most appropriate?

Thanks!

Andrew K.

herefishy 10-02-2017 05:05 PM

Quick answer - yes and no. Longer, more involved answers will come up, because it depends on the state, and also certain waters within the state. Sometimes, like the Conejos in Colorado, the landowners grant an easement to parts of their water to the state to allow public fishing. Generally tho, each state treats their waters differently and you will have to know their laws. I know of no place, though, that you can go past a no trespassing sign to fish.

PaysonLazerLiner 10-02-2017 06:49 PM

I have inquired with several sources about how Arizona law treats access to streams passing thru private property and have gotten mixed and confusing answers. When I pulled up Arizona Revised Statutes the only reference I could find was stating that the landowner does not own the land under or up to the high water mark when the water way is a "navigable" water way...But- the only such river in Arizona that met that criteria is the Colorado River. So by that criteria, land owners would have total control of access to streams passing thru their land. However, I've also talked to people who said they knew of actual court cases where a landowner filed charges against someone for simply passing thru (or fishing thru) a stream flowing across their property and the court ruled that the land owner did not, in fact, have the right to prevent access to the stream as long as access was gained by following the stream and staying within the high water mark.
You mentioned the E. Verde-I used to live in E Verde Estates, which has a volunteer HOA and the general consensus there was that people were allowed to travel the stream by staying within the high water marks. The upper E. Verde travels thru numerous subdivisions and I have fished thru all of them with no objections from homeowners. This is in spite of the entire stream being lined with big, bold and threatening NO TRESPASSING signs on every property. It's like fishing thru a gauntlet of angry signs. It's very intimidating but, as stated, I have yet to be threatened or told I was trespassing and I would think that I would have been confronted many times if the landowners would have had the right to do so. I'm sure it helps that I go overboard to be a cordial as possible to anyone I see while fishing but that only gets you so far.
So, I'm still quite confused and uncertain as to just what is legal access and what is not.
So, please. If some of you reading these posts can shed some light, all the rest of us would be most appreciative.
Tight lines.

kad1979 10-03-2017 09:50 AM

As others have mentioned they are private in AZ. CO is the same. Montana water access laws state that as long as you enter the water via a public access point you can move within the river as long as you stay below the high water mark. And yes you can happily wade past a no trespassing sign or quite commonly a barbed wire fence. I have only had one semi uncomfortable situation when wading deep in private land in MT (buddy knows a guy who lets us use his ranch land for access) when questioned by another rancher. He eased a bit when we told him we practice C&R but he mainly wanted to know how we got to where we were. My buddy told him he knows Joe Blow and he promptly wished us good luck and went on his way.

kad1979 10-03-2017 10:43 AM

Here is some interesting information.

https://www.americanwhitewater.org/c...Wiki/access:az

herefishy 10-03-2017 11:41 AM

The other interesting situation is Utah - where they have gone to the owner owning the streambed, to the courts ruling against that, which allowed fishing access, to back to not allowing the public to access for fishing. Don't know where it stands now, but I just pay attention to the signs. Colorado is actually worse, as the burden of knowledge of where private property is lies with the trespasser, in other words, you can be on private land and not know it. Very hairy subject.

Litespeed1 10-04-2017 04:51 PM

I do know some cabins along Christopher Creek have property lines IN the creek.

andyk 10-04-2017 09:44 PM

Thanks all for the replies and the link. It seems like AZ leans towards those areas being private land, though I'll continue digging and let you know what I come up with. There's a statute listed in the fishing regulations (A.R.S. 17-304) that looks to hint that specific "no fishing" signage may be required to prohibit fishing, but I'm no good at interpreting that stuff, and maybe it doesn't matter if there's no legal way to get to the area in the first place.

PaysonLazerLiner, at the East Verde near 3rd crossing, I came to private property sign and asked the owner, who was outside, if I may continue walking up stream and he nodded "no." Understandably, as it would have been through his private property... Anyhow, we were fishing in a spot located near but a safe distance off his property; he was mowing his lawn (very loud) and all the grass was blowing up in our faces... it made for a short visit to that area. Just another reason to hike around and get away from crowds! But maybe I'll give your approach a try too.

And I've not visited Christopher Creek yet, but have been wanting to... will keep a lookout for property lines there too...

Bucksnort 10-05-2017 08:49 AM

As herefishy stated, some land owners in Colorado allow an easement for anglers. The land owner is paid for this easement by Colorado Parks and Wildlife. There are usually high water mark restrictions for access. Land owners do not own the water but they do own the land below the surface and I guess some of the air space above (I'm not sure about the air above); therefore, you could float the river/stream as long as you don't touch bottom. Some land owners erect fences across moving water. A good example of this is the Wigwam private fishing club upstream from Deckers on the South Platte River. At the upper end of their property the fence would prevent you from floating. At the lower end, there is only a cable stretched across the river with a sign hanging on it. I guess they figure no one will float upstream.

Here is a true side story about fishing private property. When I was in the Colorado Air National Guard, I knew an airman who was mobilized with the 140th fighter squadron to go to Vietnam. He said that in case he came home in a body bag, he wanted badly to fish Wigwam water so he sneaked in just before going to Vietnam but was caught. He went to court and told the judge that if he was to place his life in harm's way and die, he wanted just one more quality day of fishing. The judge agreed with him and only charged him a small court cost fee.

If you hunt in Arizona, you can hunt any private land that isn't posted. I don't know if this applies to fishing. What I don't have an answer to is whether a fence, without a posting can be crossed to hunt private land. I think that without the posting, you can do this.

PaysonLazerLiner 10-06-2017 10:54 PM

After reviewing both the comments here and the information from the links provided by Kad, it seems that land owners rights generally seem to trump public access rights. However, when reading the full page, besides addressing the "navigability" of a stream, it also explains that if the land was federally owned at statehood, then the land under the stream remains gov't owned, therefore, public access is allowed. Here's the quote:

"Ownership of a streambed is determined by whether or not the streambed was navigable as of the date of statehood - February 14, 1912. Under Arizona's application of the “equal footing” doctrine, the state owns the bed of any watercourse that was navigable on the date of statehood. If the stream was not navigable on that date, then the owner of the streambed prior to the date of statehood retains title. Because the ANSAC has determined that all watercourses in Arizona - with the exception of the Colorado River - were non-navigable on the date of statehood,4) the state does not own the streambeds of any non-navigable watercourses. Thus, if the streambed was federal land prior to the date of statehood, the federal government would retain ownership. Alternatively, if the streambed had been previously patented by a private party or disposed of by the federal government, then the private party would retain title."
So it seems the big question is-is there a list of streams that were originally owned by the feds and the streambed itself was never sold off to private interests? Such a list would be worth its weight in gold in protecting our rights to access to our streams.

salmo clarkii 10-14-2017 09:43 AM

My understanding of this issue is that in AZ, and in most other western states the only legal way that you can fish a stream that runs thru private land is to float it. If you're touching the ground, even under the water you're trespassing. Like someone else said: Montana and Idaho are exceptions to this, you can walk the creek below the high water mark as long as you access it via public land.

COLOFLY 10-14-2017 11:49 AM

if I am not mistaken, Wisconsin has a great access rule.

When I fished in the lower sw corner of the state you were allowed to cross fence lines and walk directly to the water way and as long as you stayed inside the high water mark you were free to fish up and down the stream. When you had enough, you walked directly from the stream back across the fence with no problem. they even had the steps/ladder to assist you over the fence. Great access law. Is it still that way? not sure. was it just that water way I fished? not sure.. But I wish more states were like that, especially CO and its neighboring states.

I hear land owners in CO say the reason they are against such access is because they pay tax on the land under the water....well I would be willing to vote that the state lower their taxes "x"% (x=the amount of land under high water mark) to compensate for that land...

But i am sure no land owner would be willing to do that. It would cut into their income from stream access fees(rod fees, guide fees, ect...) that definitely earn them more income than the tax they pay for said land.

M Lopez 10-16-2017 10:44 PM

Arizona is a little different than most other western states, in that if both sides of a stream are privately owned, the streambed that runs through that property is privately owned, and can be shut off from all access (including floating thru), with the exception of navigable waterways. That is the key, navigable waterways as explained by PaysonLaserLiner. The Colorado River was the only legal navigable waterway initially, but I understand that the Verde River and Salt River were added in relatively recent court cases. Beyond that, nothing is legally navigable, and thus the public does not have a right to float through private property that is signed closed to tresspassing.

I've not heard of the federally owned land at statehood thing, which would be interesting to learn more about. I get the feeling that very little federal land has changed hands since statehood, and even less that contains a permanent stream.

timjd 10-17-2017 02:23 PM

Montana has the right idea on this stuff, but even there it's a constant battle. It can get dicey, and I've had encounters with armed landowners.

I've also been on the other side of the battle, and had people push well past high water mark to try and steal artifacts off our family property.

Public land access is a huge issue out west right and sportsman would be wise to really pay attention to who is looking out for their interests - or not.

Honest Abe 10-23-2017 10:15 PM

Current Status of "Navigable Waters" In Arizona
 
Hi To Everyone: I was born in Arizona (1948) and have practiced Environmental Law for many years. As a fisherman and attorney, the right to fish streams passing through private land has long been of interest to me.

In 1992, Arizona established a Commission to determine which waters in the state are "navigable." In the subsequent 25 years, the issue has gone through extensive hearings, lititgation, and court rulings. A summary of where things currently stand as of July 2017 can be found at this link: www.azleg.gov/jlbc/psnav.pdf The homepage for the Navigable Waters Commission is at this link: http://www.ansac.az.gov/

The bad news: Arizona seems determined to conclude that virtually every streambed in the state is private property. The good news??? Any streams running through federal land at the time of statehood (1912) may be exempt from the "navigable waters" test. This will require careful research and documentation on a "stretch-by-stretch" basis. Undoubtedly, it will also end up in lititgation.

In the meantime, I will continue to fish below the highwater mark as most adjacent land-owners are unlikely to object. (Remember too, that a property owner only has a right across the entire stream bottom if he/she owns the property on both sides of the creek. So, in the case of a grumpy homeowner on one side of the creek, just fish from the other side.) Honest Abe

97redz3 11-06-2017 04:47 PM

Here's an excerpt from the AGAFD 2017/2018 fishing regulations (see p.50, ARS 17-304):

"Landowners or lessees of private land who desire to prohibit hunting, fishing or trapping on their lands without their written permission shall post such lands closed to hunting, fishing or trapping using notice or signboards."

The complete regulation goes on to describe the posting requirements etc. and is clear that if posted, the water is off limits and it is criminal trespassing to fish there.

Shame ... I think Idaho has this right ... you can enter/exit any stream from a public access point and fish it as it runs through private land as long as you stay below the high water mark.

herefishy 11-07-2017 07:04 AM

I wish that reg continued by saying "otherwise, the public may cross the property"

Silver Creek 11-07-2017 08:51 AM

Quote:

Originally Posted by COLOFLY (Post 170974)
if I am not mistaken, Wisconsin has a great access rule.

When I fished in the lower sw corner of the state you were allowed to cross fence lines and walk directly to the water way and as long as you stayed inside the high water mark you were free to fish up and down the stream. When you had enough, you walked directly from the stream back across the fence with no problem. they even had the steps/ladder to assist you over the fence. Great access law. Is it still that way? not sure. was it just that water way I fished? not sure.. But I wish more states were like that, especially CO and its neighboring states.

Both Montana and Wisconsin have high water mark rules BUT they differ.

In Montana the high water mark is where terrestrial vegetation is present. So even if the the water is BELOW the high water mark, you can walk on dry stream bed as long as you are below the high water mark.

In Wisconsin, you must keep your feet wet. That is, as long as you are walking in water, you are OK. The law used to be like Montana's but it was chaneged to keep your feet wet.

In both states you can exit the stream/river to go around an obstruction to navigation. For example, a bridge to low to go under, or a log jam, or barbed wire across the stream to prevent cattle from migration up or down stream can be avoided. You must take the most direct way around the obstruction.

You cannot cross private land to get to the stream in either state. BUT most county roads have public road easements (I think it is 16 feet from the center line of the road) so at a 2 lane bridge, the easements includes land at the bridge that allows you to get to the river. The land owner CANNOT fence off land to the bridge without providing angler access to the public easement.

In Montana, the landowner does NOT have to post a no trespassing sign. Fence posts that have red or orange paint on the fence posts at a gate means the land is private with no trespassing. If there is no red paint, then ask the landowner.

http://codes.findlaw.com/mt/title-45...-45-6-201.html

"(2) To provide for effective posting of private land through which the public has no right-of-way, the notice provided for in subsection (1) must satisfy the following requirements:

(a) notice must be placed on a post, structure, or natural object by marking it with written notice or with not less than 50 square inches of fluorescent orange paint, except that when metal fenceposts are used, the entire post must be painted;  and

(b) the notice described in subsection (2)(a) must be placed at each outer gate and normal point of access to the property, including both sides of a water body crossing the property wherever the water body intersects an outer boundary line."


Laws for all states here: https://www.signs.com/blog/state-by-...-laws-signage/

COLOFLY 11-08-2017 09:53 PM

Thanks Silver for clarification.


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