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-   -   Beginner Question - Private Land? (http://www.azflyandtie.com/flyforum/showthread.php?t=15668)

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.


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