Who Owns the Stream?

Rights to access waterways and rights of private property owners often create conflict

This is part one of a two-part series addressing river access laws in Missouri based on the landmark case of Elder v. Delcour. In the next installment we will address Federal and Common Law and seek input on situations specific to Madison County.

With the beginning of summer upon us, water sports will become more popular. And, as the public flocks to the rivers and streams in  Missouri, there are often disputes between recreational users and private landowners. The following is a brief summary of stream access regulations based on court decisions. It is not intended to be used as legal precedence or advice, but only as a quick reminder to avoid disputes on the river.

Years ago, during the early days of the American Nation, the rivers and streams were considered more of a mode of transportation than a means of recreation. Their use was primarily for shipping goods and people from point to point. The rivers were considered “highways,” to be used by the public for distribution of commerce. Under this “common law” principal, the rivers and streams essentially belonged to everyone.  

With the advent of motorized transportation, Americans took to the highways in search of adventure. Parks and recreational areas blossomed throughout the land. The country prospered and residents found more time and resources available for recreational activities. Thus, the rivers and streams took on a new role in society as a place where the people could enjoy themselves.

Sadly, with this summer migration to the waterways, new challenges and problems presented themselves.

Landowners, faced with an influx of vacationing water enthusiasts, saw an increase in litter, property damage and other criminal activity. In response, they set out to curb these abuses by limiting access to their property and the water flowing through it.

Based on the “common law” doctrine, much of the public believed (in some cases rightfully so) the waterways belonged to all. Therefore disputes, some brimming on the edge of violence, broke out across the state.

One of these disputes, which took place on the Meremac River in Franklin County, ended up in the Missouri Supreme Court and set the precedent for the public’s right to access waterways in Missouri.

The case of Elder v. Delcour was heard in 1954. In summary, the case revolved around the plaintiff’s right to use a stretch of the Meremac in Cole County, which ran through private property owned by the defendant, Delcour.

In the text of the proceedings Elder stated, “On May 13, 1952, he had business in Crawford County some two miles north of defendant’s farm and he then traveled by automobile to a public road crossing of the Meramec River at a point south of and upstream from the farm owned by defendant. At this public road crossing, plaintiff placed a canoe in said river and, accompanied by his wife, he proceeded to float down the stream, fishing as he went.”

When plaintiff arrived at the south line of defendant’s farm, “he came to an obstruction across the stream in the form of a wire water gap fence and as he was pressing this obstruction down, in order to pass over the same, he was hailed from the bank of the stream by Delcour, who in substance ordered him to stop, advising Elder that he (Delcour) was the owner of the property upon which Elder was about to enter and instructed him not to enter thereon.”

The defendant then called the plaintiff’s attention to the fact that “the land and stream were posted against trespassing, hunting and fishing;” and that defendant claimed the ownership of the stream. The defendant ordered the plaintiff to turn and go back up the stream without entering upon his property. He further threatened that if plaintiff proceeded down the stream he would consult his attorney and either prosecute or would sue for damages for trespassing as might be recommended.

The court ruled, “The Meramec River at the place in question and as described in the petition is public water and subject to travel by plaintiff and those who desire to wade it or to float down it in boats. The plaintiff has a legal right to fish in said stream subject to the regulations of the Missouri Conservation Commission and the Laws of Missouri.”   

The court also declared plaintiff had “the legal right to carry his boat around obstacles in the river where obstructions preclude the passage of his boat, subject to liability for damage he might inflict on defendant’s property and the legal right to tie up his boat or to camp on said stream as long as he uses the stream bed, gravel bars and clearly recognizable area over which the stream flows during its normal stages.”

The trial court further ordered “that defendant desist in his efforts to hinder or close such free passage up and down said stream.”

So the precedent was set. Missourians had the right to float the river, but the defendant appealed on the grounds the Meremac was not a “navigable stream.” This leads to the issue of what, and what is not, a “navigable stream.” And, how exactly does said definition affect the right to access the water. This is also where the law gets somewhat confusing.

The court ruled, although it agreed with the defendant, and the Meremac in this section was a “non-navigable” stream, and the defendant owned to the meander line in the middle of the river, the plaintiff still had the legal right to use the river for the aforementioned purposes.

Thus, according to the ruling, navigability is a moot point in determining the public’s right to use a waterway in Missouri. Navigability however, is important in other states and in the Federal definitions of access rights. More important in Missouri is whether or not a river is, or at one time was, used for the transportation of commerce under the “common law” discussed earlier. This idea is essentially the court’s basis for the Elder v. Delcour decision.

Finally, the court summarized the decision: “In view of the admitted facts concerning the capacity, suitability and use of the river at the place in question for public and commercial purposes, the provisions of the several Acts of Congress and the Constitutions mentioned and the well established applicable case law of this state, we must and do hold that the waters of the Meramec River are public waters and the submerged area of its channel over and across appellant’s farm is a public highway for travel and passage by floating and by wading, for business or for pleasure, and that in traveling the course of the stream by canoe or wading, respondent was not a trespasser on the property of appellant.”

Despite the Elder v. Delcour deicision, individual counties can choose to make laws regarding trespass, and enforce them. People could be charged and prosecuted even if they are within their legal rights in reference to Elder v. Delcour. The accused may win during the appeal process, but that course is seldom pursued, and could be left up to a higher court. Opinions of the courts on the Federal level will be covered in the next part of this series.

The best way to avoid conflict is to stay off private property, or to get permission. The reason many accesses on private land are closed is because the public has abused the property. Calling ahead, asking, and assuring the landowner the privilege will not be abused is the safest route to go.