# Property Lines



## Comanche23 (Jul 5, 2013)

I was on the Scioto kayaking and my son and I pulled up on the shore to change out some lures and stretch our legs. Out of no where a lady yells down the embankment that I was on private property. My feet were still literally in the water.

My question is what is the guidelines on this. I know their property does not go to where the water is. I am sure there is an area that the city still owns between their property line and the river. Anyone know how this works?


----------



## beaver (Sep 28, 2010)

If you're on land, including the land under the water, you're on private property. The state only owns the water, not the land under it.


----------



## Saugeye Tom (Oct 6, 2010)

beaver said:


> If you're on land, including the land under the water, you're on private property. The state only owns the water, not the land under it.


X2...most people won't say anything. .some will. Shoulda Hollared up to her you were picking up trash


----------



## Bubbagon (Mar 8, 2010)

The Federal statute grants you access up to the high water mark on navigable rivers like the Scioto.
BUT, each state, county and city somehow has their own laws. Indeed in Ohio land owners are allowed to own the land UNDER the water, which is BS, and when you're standing on it you are technically trespassing.
If you were up in the Dublin stretch I'd bet I could guess the land owner in three guesses.


----------



## Bubbagon (Mar 8, 2010)

Here's some cool, nerdy nightstand reading for you:
http://www.americanwhitewater.org/content/Wiki/stewardship:navigability

And then here is where Ohio essentially thumbs it's nose at the Federal statute:
https://water.ohiodnr.gov/portals/soilwater/pdf/stream/stfs02.pdf


----------



## beaver (Sep 28, 2010)

How is it b.s.? I would also like to see the language of what is considered "navigable waters" legally.


----------



## Salmonid (Apr 14, 2004)

Ohio does not classify the Scioto as "Navigable" so yes, landowners own the land under the water. I realize this seems weird but you must remember that the landowner also pays property taxes on the bottom of the stream to the center of the river unless they own both shores then they own all the stream bottom. Now the reason the landowners do not own the water or the wildlife on such property is because that is Transient, means is comes onto and the leaves the property so the state owns the water and the wildlife ( including fish)

Last point is you can read all the federal laws you want, it doesn't matter because either the states choose to follow the "Federal " definition of Navigable or High Water Mark, or they choose to make their own interpretation as Ohio does. many states do this so its always a Grey area and best to do your research before venturing forth in a yak or canoe in any state. Ohios laws get weirder then that and technically you are allowed to float through because you are using the stream as a Highway, but once you cast you technically are "Hunting Wildlife ( including fish) without permission" but that is rarely cited. Bottom line is if a landowner gives you grief, apologize and move on to the next property where the old term, Out of site, out of mind comes into play...Tight Lines and stealthy floats.
Salmonid


----------



## Bubbagon (Mar 8, 2010)

beaver said:


> How is it b.s.? I would also like to see the language of what is considered "navigable waters" legally.


Here you are:

Navigability is defined legally by the Federal Commerce Clause and is determined under a streambed title “test”. This test is used to determine whether private landowners or the state owns the bed and banks of the river.

The test is based on whether the river was “susceptible” of use for “commerce” in the “usual and ordinary mode” at the time the state entered the Union. This standard definition of navigability was the result of a federal court decision called _The Daniel Ball_4)). This case acknowledged that though America's laws were based on English Common Law, America needed a different standard for determining navigability from England. Justice Field observed:

The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length.

Justice Field then provided the basis for all future federal decisions regarding navigability, when he wrote:

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.

*Susceptibility for Use*

The courts have generally accepted either of two standards for proving susceptibility of commerce: historic evidence or capability of use.

Most courts have based rulings on whether there is evidence that the river was in fact used for commerce prior to statehood. However, proving whether a river meetsThe Daniel Ball navigability criteria at the time of the state's admission to the Union is an evidentiary nightmare, which depends upon proving historical use of the stream (e.g. log drives, barging, etc.). If the river has ever been demonstrably been used for commerce, then it can readily be found navigable under federal law.

However, many states have also accepted demonstrations that the waterway is merely capable of commerce as proof of susceptibility.

*Commerce*

Commerce refers to the ability to transport goods to or from market, or for sale. Commerce inherently includes the right of navigation. Commerce and therefore navigation includes transportation of timber, as well as transport by barge traffic or oceangoing ships. Some states have also accepted evidence of use by a commercial raft company, or kayak or canoe school as evidence of commercial navigability.

If the river was used for transporting goods for sale prior to statehood, then the river is clearly navigable by federal definition. As such, the bed and the bank up to the mean high water mark are owned by the state and held in trust for the public.

*Travel*

Travel is used as a broad standard. According to The Daniel Ball, the ability to travel in the ordinary mode should constitute commerce.

*Mean High Water Mark*

The mean high water mark or ordinary high water line is broadly defined as a line visible on the ground, being the division between land and vegetation that are affected by submersion during high water, and land and vegetation that are not affected.

*Usual and Ordinary Mode*

The Daniel Ball references commerce in the usual and ordinary mode. The standard for defining what is usual and ordinary varies on a state-by-state basis. However these definitions tend to follow one of three standards: transport of commerce by barge, floating timber, or floating of small oar-powered craft.

Some states like Georgia have narrowly defined the usual mode of commerce by the ability of a river to convey barges. In Georgia, the courts have relied on an 1863 statute to conclude that “a navigable stream must be capable of transporting boats loaded with freight. The mere rafting of timber or transportation of wood in small boats shall not make a stream navigable.” Georgia's courts have even defined the width, length, and draft of the barges required under the state's streambed title test.

Virginia and Michigan have used historical records of log drives as evidence of commerce and navigability.

Courts in other states have taken a different approach to the validity of recreational rights. For instance California and North Carolina have defined navigability as the ability to float an oared craft such as a kayak or canoe under a broad recreational use test. In the California court case of People v. Mack, the ruling stated, “The public has the right to navigate below the high water mark on rivers which are capable of being navigated by small recreational craft.” 5)). In other words, the definition of navigability in California rests on whether the river is capable of floating a canoe or kayak. American Whitewater strongly advocates this test of navigability.

*Transport*

Until recently, the standard definition of transportation for navigability purposes meant carrying goods to or from market. Over the last century this definition has evolved to include the transportation of people too.

*Highways of Commerce*

Article I, Section 8 of the Constitution gives Congress the authority to “regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”

Article III, Section 2 of the Constitution gives the Supreme Court judicial powers over “all cases of admiralty and maritime jurisdiction.”

If a river is useful as a highway of commerce between states or foreign countries, then it falls under federal jurisdiction and is navigable under the Commerce Clause.

Federal authority to regulate rivers is protected under the Commerce Clause. Commerce is understood to include navigation. In Escanaba & Lake Michigan Transp. Co, v. City of Chicago6) Justice Field stated:

The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the states or with foreign countries. The Daniel Ball7). Such is the case with the Chicago river and its branches…

Justice Lurton stated in U. S. v. Chandler-Dunbar Water Power Co.8), quoting Gilman v. Philadelphia9):

Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders [admiralty law]…

In Economy Light & Power Co. v. U S10), Justice Pitney stated:

We concur in the opinion of the Circuit Court of Appeals that a river having actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions… Improvements in the methods of water transportation or increased cost in other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it at the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make them again important avenues of commerce among the states….


----------



## Bubbagon (Mar 8, 2010)

BTW, for the record, in Ohio, the way the law reads, unless you're in a public park, each time you're on a river and you touch the bottom with your foot, your paddle, your anchor....you're trespassing.
So the Kokosing water trail, the new ramps on the Big Darby, the new parking spots and access pints on the Scioto...once you enter the river, you're on private property and as soon as your kayak scrapes a rock, you're trespassing.


----------



## Shad Rap (Nov 10, 2010)

beaver said:


> How is it b.s.? I would also like to see the language of what is considered "navigable waters" legally.


I imagine its any waterway where you dont have to portage over or around obstacles...I'm sure they define it somewhere.


----------



## crittergitter (Jun 9, 2005)

Shad Rap said:


> I imagine its any waterway where you dont have to portage over or around obstacles...I'm sure they define it somewhere.


Actually, they don't. The courts only way to determine navigability is prior precedent. So, if a streams navigability has never been challenged in court and determined, then you are at the mercy of the court to do so should you be taken to court over such a matter. Stepping onto a property and then returning to vessel and moving on I can't see such a court case being worth pursuing, any judge worth his salt would likely throw it out. However, step on a property, slip and break back on a rock. You sue, but landowner counter sues. You have a mess on your hands. Extreme example, yes, but nobody ever thinks they'll be in such a situation until there in such a situation.


----------



## Salmonid (Apr 14, 2004)

great info, here in Ohio, I don't remember the specific statutes but the term, "Commerce" in Ohio is defined as "even during high water, a log was floatable to the next property down to be sold" so that means all of Ohio's waterways are or have been at one time or another, been used for Commerce, ( remember these laws are from the 1800's and still stand today) also know that as you float ( using the stream as a Highway) that you are allowed to portage or travel around any unsafe obstacle using the shortest safest route with no repercussions. same holds true if a power pole falls across the road in front of your house and folks decide to drive through your front yard to get around it, by law they can do that. Laws are sticky things...loaded with loopholes but it all comes down to "Interpretation" of the present laws and that's where every state is a little different.

Salmonid


----------



## Bubbagon (Mar 8, 2010)

So far, this has been the most civil conversation we've ever had on this topic.  
Quite honestly, I can see both sides. And I'm not one to challenge a land owner on the water. I simply pick up and move on. BUT, I think as fishermen, we should encourage Ohio to adopt an "appropriate" definition of navigability. For instance:

"Courts in other states have taken a different approach to the validity of recreational rights. For instance California and North Carolina have defined navigability as the ability to float an oared craft such as a kayak or canoe under a broad recreational use test. In the California court case of People v. Mack, the ruling stated, “The public has the right to navigate below the high water mark on rivers which are capable of being navigated by small recreational craft.” 5)). In other words, the definition of navigability in California rests on whether the river is capable of floating a canoe or kayak. American Whitewater strongly advocates this test of navigability."


----------



## Salmonid (Apr 14, 2004)

it sounds good on paper to ask the state to make this change but under Ohio Law, only 1 of the governing bodies ( DNR, DOT,DOF,DOW, etc) can make a recommendation to the AG here in Ohio, the public can not ask for a definition to be amended, ( this is how it was explained to us 20 years ago when our Trout Unlimited Group did all the research on it) and bottom line, as it was told to us was that it took farmers 100 years to half trust the State, no one was gonna jeopardize that by telling the large farmers and landowners that even though you own it and pay taxes on it, now you gotta let idiots use it end of story...


----------



## Bubbagon (Mar 8, 2010)

That's EXACTLY right, Mark. It's frustrating.


----------



## beaver (Sep 28, 2010)

I disagree with most here. I believe that there is absolutely no circumstance that you should be forced to allow anyone to use land that you own. Then again, I also don't believe in property taxes, I think once you own something, you should own it. As long as I'm being forced to pay taxes on something with the repercussion being that I lose it if I don't, then I don't truly own it. 

With that being said, I've never ran anyone off, out have never been ran off for stopping to pee, stretch for a minute, etc. As long as you aren't setting up camp, most won't care.


----------



## creekcrawler (Oct 5, 2004)

Sounds like you had the unfortunate circumstances of meeting one of "those" neighbors.
She probably steals the kids balls if they go in her yard too.
Just wave and move on. Some people are just holes like that.


----------



## Flannel_Carp (Apr 7, 2014)

beaver said:


> I disagree with most here. I believe that there is absolutely no circumstance that you should be forced to allow anyone to use land that you own. Then again, I also don't believe in property taxes, I think once you own something, you should own it. As long as I'm being forced to pay taxes on something with the repercussion being that I lose it if I don't, then I don't truly own it.
> 
> With that being said, I've never ran anyone off, out have never been ran off for stopping to pee, stretch for a minute, etc. As long as you aren't setting up camp, most won't care.


I agree on the tax thing.

The real complaint is that they own the river bed in the first place, let alone pay taxes on it. If it is a navigable river used by the public at large, and the state owns the river, they should own the riverbed too.


----------



## fishing pole (May 2, 2004)

I am with creek. Why be a hole? What else would they rather you be doing? (Drinking. drugs, vandalism...etc). People who are fishing, kayaking..etc are generally staying out of trouble


----------



## beaver (Sep 28, 2010)

fishing pole said:


> I am with creek. Why be a hole? What else would they rather you be doing? (Drinking. drugs, vandalism...etc). People who are fishing, kayaking..etc are generally staying out of trouble


Actually too often people who are fishing, are drinking and leaving trash, along with the charred remains of whatever they decided to burn overnight. That is the reason some property owners are the way they are.

You're correct though, generally people who are just kayaking through aren't going any harm, and I think that the majority of landowners understand that.


----------



## Saugeye Tom (Oct 6, 2010)

GUYS.....MOST PEOPLE ARE OK AS LONG AS U CLEAN UP...MAYBE TAKE OTHERS TRASH OUR TOO....


----------



## Saugeye Tom (Oct 6, 2010)

If u ask they grant permission


----------



## kayak1979 (Jul 13, 2014)

I have a question regarding this. I live near the West Branch of the Cuyahoga River here in Geauga County. North of me is Aquilla lake which is a public hunting/fishing area. You can kayak canoe out of there South on the river. Further south it travels through a friends farm. He lives just North of a camp and the river then expands into a "lake" very small but larger amount of water before reaching a spillway by the road. My friend was on his kayak in the lake years back and the camp people were yelling at him saying this is a private lake you are trespassing and just laughed and said you don't own the water and that he had every right to be there. I now myself want to discover that lake and fish it for possible really large Northern Pike. What I want to know is if I will have to worry about the camp owners if I am not touching the bottom at all while fishing?


----------



## Saugeye Tom (Oct 6, 2010)

If you flow in and float out...no issues. ..same thing where I live...a local flow has a branch that runs in and out of a private lake when the water is up. Tha game warden tt me and said I was fine. Fyi...I asked the land owner and he was happy I did. He knew the law and said I was the first to ask. ..Told me I could camp there if I wanted. ..exellent cat bass n crappie pit


----------



## Snakecharmer (Apr 9, 2008)

kayak1979 said:


> I have a question regarding this. I live near the West Branch of the Cuyahoga River here in Geauga County. North of me is Aquilla lake which is a public hunting/fishing area. You can kayak canoe out of there South on the river. Further south it travels through a friends farm. He lives just North of a camp and the river then expands into a "lake" very small but larger amount of water before reaching a spillway by the road. My friend was on his kayak in the lake years back and the camp people were yelling at him saying this is a private lake you are trespassing and just laughed and said you don't own the water and that he had every right to be there. I now myself want to discover that lake and fish it for possible really large Northern Pike. What I want to know is if I will have to worry about the camp owners if I am not touching the bottom at all while fishing?


I think I know of the lake/ camp that your talking about...I always wanted to test the waters so to speak....


----------



## streamstalker (Jul 8, 2005)

post deleted


----------



## Flannel_Carp (Apr 7, 2014)

kayak1979 said:


> I have a question regarding this. I live near the West Branch of the Cuyahoga River here in Geauga County. North of me is Aquilla lake which is a public hunting/fishing area. You can kayak canoe out of there South on the river. Further south it travels through a friends farm. He lives just North of a camp and the river then expands into a "lake" very small but larger amount of water before reaching a spillway by the road. My friend was on his kayak in the lake years back and the camp people were yelling at him saying this is a private lake you are trespassing and just laughed and said you don't own the water and that he had every right to be there. I now myself want to discover that lake and fish it for possible really large Northern Pike. What I want to know is if I will have to worry about the camp owners if I am not touching the bottom at all while fishing?


That spot sure does look fishy, on Google maps. If you are allowed to put in at Aqulla then I don't see why you wouldn't be able to float down around the lake legally as long as you've stayed in your craft and don't have to drag it at any point.


----------



## Bubbagon (Mar 8, 2010)

beaver said:


> Actually too often people who are fishing, are drinking and leaving trash, along with the charred remains of whatever they decided to burn overnight. That is the reason some property owners are the way they are.
> 
> You're correct though, generally people who are just kayaking through aren't going any harm, and I think that the majority of landowners understand that.


You're so right. It REALLY bums me out when I see what is clearly trash left behind from fishermen. It's disgusting and makes us all look like aholes.


----------



## bdawg (Apr 14, 2009)

The reason the property owners own the land under the river is because the river channels move over time. In 20 years, you could have more or less river on your property. 

The thing that irks me about the state's interpretation of this law is that it doesn't apply the same when you float into a water supply reservoir like Lake Rockwell! If you do, you will get arrested even though it's on the Cuyahoga River! The city of Akron is the property owner, though it's not in the city corporation limits! This double standard baffles me!


----------



## fishing pole (May 2, 2004)

I got ya.. I am just not one of those people and I still believe all people are basically good just brought up wrong.


----------



## SMBHooker (Jan 3, 2008)

fishing pole said:


> I still believe all people are basically good


Quite the opposite.


----------



## MassillonBuckeye (May 3, 2010)

https://www.law.cornell.edu/wex/riparian_doctrine

In dealing with water rights, the riparian doctrine states that water belongs to the person whose land borders a body of water. Riparian owners are permitted to make reasonable use of this water provided it does not unreasonably interfere with the reasonable use of this water by others with riparian rights.

https://en.wikipedia.org/wiki/Riparian_water_rights

Navigable vs non-navigable.

"Finally, a water-body is presumed non-navigable with the burden of proof on the party claiming it is navigable. The U.S. Forest Service considers a waterbody not navigable until is adjudicated otherwise. see Whitewater v. Tidwell 770 F. 3d 1108 (2014). Therefore, and public rights associated with navigability cannot be presumed to exist without a finding of navigability."

Don't get your waders sued off!


----------



## Rocknut (Apr 17, 2015)

Couple years ago I was fishing killbuck creek which is shown on the ODNR website as a canoe kayak route. I would float through the preserve area of the marsh. But one time I had the local game warden stop me and say I couldn't use that section of the creek. I told him it was on the ODNR website and shows it as a canoe kayak route right through the preserve. He was not sure on the rules so he took my phone number and said he would call me back. About two weeks later he did call back and said finally was able to talk to the higher ups and they said no you can't use that section of the creek. So not sure how that works when it's shown as a canoe route but there is a 2-mile stretch you can't use. Here is the map from ODNR it doesn't show any area you can't use on the creek.
http://watercraft.ohiodnr.gov/portals/watercraft/pdfs/maps/eastern/0313Killbuck.pdf
But on this map also from the ODNR it shows a preserve with no trespassing. So which one is correct?
http://wildlife.ohiodnr.gov/Portals/wildlife/Maps/Wildlife Area Maps/PDFs/killbuckmarsh.pdf


----------



## beaver (Sep 28, 2010)

Government job.... Need I say more?


----------



## kayak1979 (Jul 13, 2014)

Probably his personal Honey hole and didn't want you there.


----------



## fishing pole (May 2, 2004)

SMBHooker said:


> Quite the opposite.


Most are just too lazy... the greatest struggle for others is with theirselves and their natural tendencies to laziness, insatiable appetites and self-centeredness. This website is sort of a breeding ground toward the latter.


----------



## beaver (Sep 28, 2010)

fishing pole said:


> Most are just too lazy... the greatest struggle for others is with theirselves and their natural tendencies to laziness, insatiable appetites and self-centeredness. This website is sort of a breeding ground toward the latter.


It's not a struggle at all. Quite enjoyable really.


----------



## Flannel_Carp (Apr 7, 2014)

fishing pole said:


> Most are just too lazy... the greatest struggle for others is with theirselves and their natural tendencies to laziness, insatiable appetites and self-centeredness. This website is sort of a breeding ground toward the latter.


So do you ride your horse around in the water or does he have his own kayak?


----------



## winguy7 (Mar 12, 2014)

Flannel_Carp said:


> So do you ride your horse around in the water or does he have his own kayak?


Ha, agreed. On a side note the ODNR along with other state and local agency's need to do a much better job with their clarification's. I think most beginning fisherman take that little pamphlet to be gospel. There are far to many misnomers out there, even between highly knowledgeable people. Its a shame and takes a lot of the fun out of this sport.


----------



## backlashed (Mar 19, 2011)

beaver said:


> Actually too often people who are fishing, are drinking and leaving trash, along with the charred remains of whatever they decided to burn overnight. That is the reason some property owners are the way they are.


Bingo! Cleaning up others peoples trash on your land, discovering cut timber, ATV/motorcycle tracks or where they are stealing stone off the bank you are trying to keep from eroding tends to make you a little cranky. I dont keep the neighbor kids balls though.


----------

