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Who owns the stream?

This is the second part of a 2-part series addressing river access laws in Missouri. In the first part (June 27) of this series we addressed the Missouri Supreme Court Case of Elder v. Delcour, the landmark court decision which is the basis for the public’s right to access the river in Missouri.

The decision established the public’s right to use the stream, by fishing or floating, provided the user did not cross private property to access that stream. It also prevented landowners from creating an obstruction to prevent the public from traveling downstream.

But anyone who has floated in Missouri knows the best part of the river is often the gravel bar.

In this article we will attempt to answer the often misunderstood issue of where the public right of way for recreational use ends in relation to private property which runs to the edge of the water.

According to the Missouri Department of Conservation, on a “navigable” river the public has the right to use the gravel bar up to the “ordinary high water mark.”

Thus, we must examine two much confused terms, “navigability” and “ordinary high water mark.”

Navigability, in relation to commerce was first defined in the 1870 U.S. Supreme Court case of the “Daniel Ball.” The Daniel Ball was a commercial steamer that traversed the Grand River in Michigan. While the case was over taxes, and not river access, it was the first time the Supreme Court set a standard for what is, or is not, a navigable river.

In the Daniel Ball Case the court stated, “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

In 1940, the case of U.S. v Appalachia Power reaffirmed and expounded upon this concept. The court essentially said that the test of navigability must be assessed on a case by case basis and added the following tenants.

*In such case, it is not necessary that the improvement shall have been already undertaken or completed, nor even that it shall have been authorized.

*A navigable water of the United States does not lose that character because its use for navigation in interstate commerce has lessened or ceased.

* A waterway may be a navigable water of the United States for a part only of its course.

* Lack of commercial traffic does not preclude the classification of a waterway as a navigable water of the United States where personal or private use by boats demonstrates its availability for the simpler types of commercial navigation.

The Missouri Department of Conservation provided us with what is perhaps the best definition of a navigable river by defining a non-navigable river. MDC said that basically, a non-navigable status only applies to those creeks completely surrounded by private property which would be impossible to float under any conditions.

The “ordinary high water mark” is defined by the fed as, “that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.”

Consider the rivers in Southeast Missouri. They can drop as much as 18 inches during the dog days of summer, creating a vast amount of land below the ordinary high water mark for camping, swimming and relaxation.

Thus, if a recreational user enters the stream legally, according to the aforementioned legal precedents, that user has the right to use the river bank up to the line of the “ordinary high water mark.”

Once again, the public has no right to cross private property to get to the gravel bar, the river or any other natural area.

The best advice we can give is to put in your canoe, kayak, feet or whatever mode of transportation you plan on using, at a public access, and take out at a public access, unless you have express permission from a landowner.   

By acting responsibly, landowners and recreational users can come to terms regarding access rights. By choosing not to take matters into their own hands and educating themselves on legal precedence, disagreement will become a thing of the past and everyone can “own the stream” together.

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