# Rocky River



## Rasper

Ok so a friend and I were fishing the rocky for smallies and steelhead recently and ran into another guy fishing... but he was fishing from his property... we chatted for a little bit and he told us we were on private property.... but yet we were wading the river. So anyone know if anyone can own parts of the rocky?


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## Matt Hougan

Goofy as it may seem but he may very well own the land under the river itself. You can float through with no issues but once you touch bottom you could very well be trespassing.


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## ballast

I know better than to comment on this style post (LOL), but I think u have to be floating.


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## AC_ESS

Depends on where you were


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## lowhole4trowt

much of the west branch is private, including the river bottom.


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## mdogs444

In Ohio, yes you can own the property that the river runs through. You can own the physical land around and under the water. If you are floating on top of the water, then you are legally allowed to fish there. Wading/walking, they have every right to make it private and no trespassing.


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## ztkaz

Most of the west branch homes don't really care if you are on the river done it many time the first few houses right where that branch starts do care.


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## mdogs444

ztkaz said:


> Most of the west branch homes don't really care if you are on the river done it many time the first few houses right where that branch starts do care.


For anyone looking to fish private property, practice proper etiquette by asking the home owners in person first. You know the saying....one bad apple ruins the bunch.


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## Osmerus

Yep unfortunately they can own the substrate either to the middle of the river or if the river falls completely on their property the entire river bottom.

Managed on small steelie yesterday down low. 

Ok now its time to vent. How many of us have been wadding the river or walking down the shoreline of the river and someones unleashed dog runs up to us and barks aggressively. Its happened many times to me on the Rocky. Well yesterday the same thing happened but this time the dog took a bite of the back of my leg. Man was I pissed, he broke the skin pretty good but luckily my breathables were not punctured, thankfully. I love dogs but there are so many owners who let their dogs of the leash once off the paved trail. I had a few choice words for the owners and moved on my way. Thought about calling the Rangers but I didn't. Guess that's just one of the hazards of fishing the Rocky, dog bites. I'm usually understanding of barking dogs off the leash in the parks but not anymore. 

Tight lines


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## ztkaz

mdogs444 said:


> For anyone looking to fish private property, practice proper etiquette by asking the home owners in person first. You know the saying....one bad apple ruins the bunch.



I wasn't saying go ahead and do it, I kayak through there legally and have talked to few guys who live on the river. Their is a lot of public property on the upper west branch also.


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## mdogs444

ztkaz said:


> I wasn't saying go ahead and do it, I kayak through there legally and have talked to few guys who live on the river. Their is a lot of public property on the upper west branch also.


I was talking in generalities, just telling people not to assume that homeowners don't care unless they hear otherwise.

I was just branching off your discussion, but was not referring to you. Sorry for the confusion.


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## lowhole4trowt

Best to check with individual home-owners as mdoggs said before entering their land. Or being on Rocky with plentiful public access just go elsewhere. Whether it's accurate or not, "a guy on ogf told me I could" is not a valid excuse for trespassing. Better safe than sorry.


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## ballast

I've gota small problem with this, I'm not into fishing in someone's backyard (kinda rude) I don't like strangers in my backyard. But we've all been in this situation. Say, "hi" tell um what you're doing be courteous. If they tell you to move it, apologize and move on. They know they don't own the water and have probably already dealt with the bad apple. I feel if they care that much you'll see a big yellow sign that says POSTED.


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## lowhole4trowt

Unfortunately courtesy, respect for property (leaving trash/line/etc), and just generally being a respectful person are harder and harder to come by. For every 1 of you ballast there's 10 others than can and have ruined good locations where access was previously allowed by a private land owner. (1 particularly beautiful hole comes to mind on Grand)


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## mdogs444

ballast said:


> I've gota small problem with this


With what?


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## ballast

I'll never forget deer hunting in S.Ohio. The land we had permission to hunt for years, the old guy died and the land was sold off in parts. We didn't know anything about it and came back a year later (we might have been grouse hunting I was still just a kid) the guy that bought the land heard us shooting and started shooting in our direction. MY DAD FREAKED l, started yelling some pretty hustle words, turned out the guy got beat up by hunter. So you're absolutely right, the property owner just need one bad experience and it's curtains for that spot.


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## creekcrawler

Wading is no different than walking on someone's land.
In Ohio, it's still trespassing.

Kayaking, you're ok if you don't anchor.


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## Rasper

Ok fair enough. Guys.... it's weird that I can put a boat on but can't walk it. And yes I was in the west branch. I was polite to the people I ran into but I was wondering.


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## lowhole4trowt

It is weird but it is the law. People in PA are trying to fight it claiming that everyone has the right to fish for a migrating fish no matter what water it is in (fish payed for by tax dollars) basically. Valiant idea unfortunately it is doubtful it will hold up as I believe it's failed before.


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## iggyfly

My god are people inconsiderate on the rocky. When changing spawn sacs I had some guy come right up to where im standing and start fishing. I say excuse me and he just looks at me and keeps fishing. Dumb rich ignorant morons. Tempted to pop some spawn sacs on his fancy Tahoe... unreal


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## mdogs444

Class warfare has nothing to do with being inconsiderate. Meat takers are typically the worst.


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## master of steel

iggyfly said:


> My god are people inconsiderate on the rocky. When changing spawn sacs I had some guy come right up to where im standing and start fishing. I say excuse me and he just looks at me and keeps fishing. Dumb rich ignorant morons. Tempted to pop some spawn sacs on his fancy Tahoe... unreal


Then step downstream from him. That's what I do and you should see the looks on people's faces. I don't tolerate low holing or taking crap from them.


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## ztkaz

iggyfly said:


> My god are people inconsiderate on the rocky. When changing spawn sacs I had some guy come right up to where im standing and start fishing. I say excuse me and he just looks at me and keeps fishing. Dumb rich ignorant morons. Tempted to pop some spawn sacs on his fancy Tahoe... unreal



Was it an all black Tahoe? But I also had this issue today had 4 guys all together walk up in my hole say nothing to me and start drifting right past me! I ended up cast over their line every cast, then I go to move up and the move a few step over to make it impossible to fish that stretch so I go to move back over and they moved back over. Said a few "nice " words to them, they tried to say they don't speak English but I don't believe it.


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## Rasper

And this is why I wanna fish the west branch.


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## iggyfly

I sucked it up and moved up steam, someone else ended up low holing him and he left.


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## lorainfly24

wow...glad i passed on going to the rock today. Its not suprising though this time year. Its so tuff to fish there early when the fish are jammed up on the lower.


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## lowhole4trowt

:Banane40: 
Ha. Oh well! Laugh and relocate.


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## tehsavage

Another viable option is to walk 10 yards up from the hole poacher and talk to yourself quietly and mutter anti Semitics. Nobody likes crazy. They'll eventually leave.


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## MadMax1

So did anyone do any this weekend, or just bicker over spots? Many fish come up yet?


Posted using Outdoor Hub Campfire


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## ztkaz

MadMax1 said:


> So did anyone do any this weekend, or just bicker over spots? Many fish come up yet?
> 
> 
> Posted using Outdoor Hub Campfire



One fish yesterday, they are here but they have lock jaw.


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## kayak1979

ztkaz said:


> Was it an all black Tahoe? But I also had this issue today had 4 guys all together walk up in my hole say nothing to me and start drifting right past me! I ended up cast over their line every cast, then I go to move up and the move a few step over to make it impossible to fish that stretch so I go to move back over and they moved back over. Said a few "nice " words to them, they tried to say they don't speak English but I don't believe it.


This is exactly why you should invest in a kayak and find places where these morons can't get to.


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## kayak1979

mdogs444 said:


> Class warfare has nothing to do with being inconsiderate. Meat takers are typically the worst.


I think that is a generalized statement as well regarding meat takers.


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## lowhole4trowt

Anybody see anything on gravel yet???? Hoping it's soon so I can get a 15 fish day! :T 
:Banane26:


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## ztkaz

kayak1979 said:


> This is exactly why you should invest in a kayak and find places where these morons can't get to.



Just sold mine yesterday! Or else id do it


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## RJohnson442

Even with a Kayak as soon as you drop the anchor on private land you are trespassing.


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## creekcrawler

I avoid the Rocky like the plague nowadays, unless there's a freezing blizzard to keep people away.


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## mdogs444

creekcrawler said:


> I avoid the Rocky like the plague nowadays, unless there's a freezing blizzard to keep people away.


As do I. Its too crowded for what it is. There are almost 20 miles of public river available on the Chagrin, and even more so on the Grand.


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## iggyfly

On the chagrin now, so nice. No fish though at crp. Trying daniels now


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## mdogs444

iggyfly said:


> On the chagrin now, so nice. No fish though at crp. Trying daniels now


The bottom of CRP has changed drastically in the last two years and is not much of a holding spot as it used to be. Daniels is a haven for spinners and meat hunters. Keep going further up if you want to find nice pods with no pressure.


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## plybon72

mdogs444 said:


> In Ohio, yes you can own the property that the river runs through. You can own the physical land around and under the water. If you are floating on top of the water, then you are legally allowed to fish there. Wading/walking, they have every right to make it private and no trespassing.



State laws vary but,, if the stream is navigable the federal government claims a public right of way to the normal high water mark as well as a portage right of way. 

".....Interestingly, the origins of public ownership and public rights date as far back as the Roman law and the 1215 Magna Charta. In the United States the Supreme Court has agreed and held that rivers have been public since ancient times. Fishermen will also be pleased to know that public fishing rights were codified shortly after the colonies were founded.
Most importantly, for our purposes, &#8220;The US supreme Court has held that the bed and banks under all rivers, lakes and streams that are navigable, for title purposes, are owned by the states, held in trust for the public. Title in this context means ownership. This public-trust ownership extends up to the ordinary high water line encompassing what is commonly referred to as the submerged and submersible land.&#8221; according to NOR...."



The creek behind my home is not in any way navigable therefore it is private property, the river it empties into is navigable so it is a public right of way to the normal high water mark.

If you can float it, you can wade it. Many, including LEOs, will argue this but it has already been decided by the SCOTUS in several cases.


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## plybon72

"...States own streambeds of rivers navigable under federal law

Federal law determines who owns the streambeds of federally navigable rivers and also determines the right to use the surface of those waterways.

The streambeds of rivers that are navigable under federal law are owned by the state. The limited exceptions to this rule are the streambeds of rivers that, prior to statehood, were granted into private ownership by the King of England or in even rarer circumstances the United States.

In 1842, the Supreme Court established state ownership of these federally navigable streambeds in Martin v. Waddell.22)) Chief Justice Roger Taney declared &#8220;dominion and property in navigable waters, and in the lands under them, [were] held by the king as a public trust.&#8221; This public trust was a property right which passed to the people of each state &#8220;when the Revolution took place.&#8221;

Though Martin v. Waddell only applied to the original 13 colonies, the principle set forth by Taney was later conveyed to the remaining states under the equal footing doctrine.23)

The court's finding of state ownership of the streambeds was ratified and explicitly passed into law under the Submerged Lands Act24).

The public right of navigation is secure on rivers where the streambed is owned by the state. These rights are limited only by federal or state regulations25) and administration of these public trust natural resources must avoid substantial impairment of public uses or discrimination between uses......"


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## Rasper

So technically I can wade any part of the rocky and it's high water mark.... I honestly don't think anyone will have me arrested to begin with as long as I am keeping to myself and being respectful. But then again who knows. People will be people.


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## acklac7

Rasper said:


> So technically I can wade any part of the rocky and it's high water mark.... I honestly don't think anyone will have me arrested to begin with as long as I am keeping to myself and being respectful. But then again who knows. People will be people.


Im not going to dig up the threads, but im fairly certain there is no "high water mark" rule for Ohio's rivers and Streams, despite what the Federal Law may say. 

Run a search for Trespassing on here, this topic has been covered a billion times.


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## Rasper

Lol if it's been covered.... I'm moving on. To each their own.


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## KTkiff

Rasper said:


> So technically I can wade any part of the rocky and it's high water mark.... I honestly don't think anyone will have me arrested to begin with as long as I am keeping to myself and being respectful. But then again who knows. People will be people.


The high water mark law is ancient. I know of plenty who have been arrested for trespassing.


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## creekcrawler

Soooo, Lake Rockwell, part of the Cuyahoga River which is navigable is ok to wade & boat?

Nope. I wouldn't try it.


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## crestliner TS

You can float but if you touch bottom even with an anchor you are trespassing. Keep it simple, you can be arrested, thats all that matters.


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## mdogs444

You start trespassing on the wrong persons property, and being arrested may be the best thing that would happen to you.


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## Shaun69007

You sure got a purty mouth



mdogs444 said:


> You start trespassing on the wrong persons property, and being arrested may be the best thing that would happen to you.


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## mdogs444

"Puts the lotion on the skin!"



Shaun69007 said:


> You sure got a purty mouth


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## ztkaz

mdogs444 said:


> You start trespassing on the wrong persons property, and being arrested may be the best thing that would happen to you.



Yeah guy got shot on arcola creek a few years back, there are crazy people out there.


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## mdogs444

ztkaz said:


> Yeah guy got shot on arcola creek a few years back, there are crazy people out there.


Two types of people out east that don't like trespassers

people with private hunting land
land that contains a meth lab


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## lunker23

Simple, know the laws and regulations before going out. Respect other people's property as you'd want them to do the same. 
Now can we get back to fishing already?


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## lowhole4trowt

mdogs444 said:


> Two types of people out east that don't like trespassers
> 
> people with private hunting land
> land that contains a meth lab


3. EPA and other officials that don't want you to know about or be around the toxic waste storage vaults which could cause total destruction of all aquatic life for a vast perimeter if released into the river.


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## ballast

Float tube&#10004; bulletproof vest&#10004;....... Ok I'm going fishing!!!


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## Snyd

There are some very odd rules on streams and rivers and who owns what. The only thing I know forsure is they can not say a word if you are in a float of some sort.


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## plybon72

Yes it is a muddy mess as few, including game wardens and LEOs, know of the old but still valid laws and court cases. 

The default setting of most people seems to be that it is trespassing, however that is not backed up by Federal law which of course, trumps State law in most every instance. 

As the old timers, who mostly did not care as long as you were respectful to them and the water/bank/woods die off, a new type of overly possessive land owner, often ex-city folks, is becoming a problem for outdoors folk. 
Over the last 20 years I have lost 90% of my land accessed bank fishing spots so I have ceased being shy about asserting my rights when I have them. 

I keep a "pocket guide" to the relevant laws to share when I come in conflict (and a pistol just in case I run into a nut) and invite them to consult with their lawyer. Education, not litigation, is the best way to go. 

This is a good place to begin your own education on the issue and to find the pocket guide http://www.nationalrivers.org/river-law/

*disclaimer* -- I am not advocating running wild over someone's property, standard good manners, outdoors ethics, and common sense apply. 
Common sense and good manners as in, if someone's home is very close to the water, don't be setting up in their backyard,, it may be legal but it would still be rude.


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## mdogs444

For Ohio specific laws on definitions of navigable and non-navigable waterways including land/streambed ownership laws, refer here:
http://www.ohiofarmlaw.com/resources/articles-fact-sheets/laws-related-to-ohio-sportsmen/


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## mdogs444

Directly from law website:

For example, Fisherman goes fishing on a nearby public river. He starts his fishing trip
by launching his canoe from a public park. Fisherman can float down the river without
needing permission from the adjacent landowners as he is enjoying his easement of
navigation. Partway through his trip, Fisherman exits his canoe to do some wading.
Fisherman is now standing on the riverbed and private property. He must have
permission from the adjacent landowners or will be trespassing. Upon reentering the
canoe, Fisherman is no longer trespassing.

The reality is that most riparian owners do not object to fishermen wading in the stream
or river. Most fishermen are respectful of the adjacent property owners and are careful
to not leave litter or other signs of their presence. However, a few landowners do object
to anyone wading on their portion of the riverbed. In these situations, the landowner
does have the legal right to demand the fishermen leave their portion of the riverbed.

- See more at: http://www.ohiofarmlaw.com/resource...lated-to-ohio-sportsmen/#sthash.YShvED3x.dpuf


mdogs444 said:


> For Ohio specific laws on definitions of navigable and non-navigable waterways including land/streambed ownership laws, refer here:
> http://www.ohiofarmlaw.com/resources/articles-fact-sheets/laws-related-to-ohio-sportsmen/


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## plybon72

mdogs444 said:


> For Ohio specific laws on definitions of navigable and non-navigable waterways including land/streambed ownership laws, refer here:
> http://www.ohiofarmlaw.com/resources/articles-fact-sheets/laws-related-to-ohio-sportsmen/


Yes, that is the current position of Ohio courts. However, IMO any competent attorney should be able to beat it. Shoot, I am confident that I could. ( assuming an honest Judge) 

As I understand it, that ruling revolved around the argument that the USA never specifically granted the State of Ohio "custody" of the streams. For that to fly it would have to be acknowledged that the Federal Government still had jurisdiction and the Federal Government says it is not trespass. 

It comes down to if you are willing to fight for your rights. I am, many are not. 
You will have to decide for yourself if you are, or not. 

Much better to work with other outdoorsfolk to head this off at the pass before it becomes a personal legal issue.


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## mdogs444

This ruling has taken place in almost all states already and is quite set in stone. The federal government has the ability to regulate the water (EPA), but does not own the land that resides on the banks and underneath the water. The land itself is regulated by the state under state law, as none of it owned by the federal government unless the land itself is owned by the federal government (aka federal parks). 

Pennsylvania is toying around with the idea granting water access to rivers that flow trough private lands, as long as you are not standing on dry land. It most likely will not pass.

Your fight has already been tried many times by anglers from major fishing states - Montana, Colorado - and has lost each time, as a private property owner is under no obligation to allow you to use the physical land that he owns and pays property taxes on, and he also has the right to charge you for land access.





plybon72 said:


> Yes, that is the current position of Ohio courts. However, IMO any competent attorney should be able to beat it. Shoot, I am confident that I could. ( assuming an honest Judge)
> 
> As I understand it, that ruling revolved around the argument that the USA never specifically granted the State of Ohio "custody" of the streams. For that to fly it would have to be acknowledged that the Federal Government still had jurisdiction and the Federal Government says it is not trespass.
> 
> It comes down to if you are willing to fight for your rights. I am, many are not.
> You will have to decide for yourself if you are, or not.
> 
> Much better to work with other outdoorsfolk to head this off at the pass before it becomes a personal legal issue.


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## mdogs444

You carry a pocket guide to show a private property owner, that contains "rights" in which the court has already stated you don't have, and carry gun onto someones private property in case they don't like that you are violating their private property rights? 

Bringing a gun onto private property in an effort to tell the private property owner that you can use his land without his permission based on a "book" that has no legal bearing is a good way to get yourself dropped in a 10ft hole behind a barn.




plybon72 said:


> Yes it is a muddy mess as few, including game wardens and LEOs, know of the old but still valid laws and court cases.
> 
> The default setting of most people seems to be that it is trespassing, however that is not backed up by Federal law which of course, trumps State law in most every instance.
> 
> As the old timers, who mostly did not care as long as you were respectful to them and the water/bank/woods die off, a new type of overly possessive land owner, often ex-city folks, is becoming a problem for outdoors folk.
> Over the last 20 years I have lost 90% of my land accessed bank fishing spots so I have ceased being shy about asserting my rights when I have them.
> 
> I keep a "pocket guide" to the relevant laws to share when I come in conflict (and a pistol just in case I run into a nut) and invite them to consult with their lawyer. Education, not litigation, is the best way to go.
> 
> This is a good place to begin your own education on the issue and to find the pocket guide http://www.nationalrivers.org/river-law/
> 
> *disclaimer* -- I am not advocating running wild over someone's property, standard good manners, outdoors ethics, and common sense apply.
> Common sense and good manners as in, if someone's home is very close to the water, don't be setting up in their backyard,, it may be legal but it would still be rude.


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## creekcrawler

You are all beating a really dead horse. Doesn't anyone remember the guys that tried to 
"assert their rights" by paddling Lake Rockwell a few years back?
I believe they we're right also, but the case went all the way to the supreme court.
City of Akron won, they lost.


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## iggyfly

creekcrawler said:


> You are all beating a really dead horse. Doesn't anyone remember the guys that tried to
> "assert their rights" by paddling Lake Rockwell a few years back?
> I believe they we're right also, but the case went all the way to the supreme court.
> City of Akron won, they lost.


Remember that. Don't blame them for prohibiting fishing on Rockwell. The few spots you can fish are often littered with trash.


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## AlD

I had never heard of the Lake Rockwell case. So I looked on the City of Akrons website and Akron says no recreational use on the lake as it is the cities drinking water supply. Around here (Columbus area) fishing and boating is permitted on of all city's reservoirs; Alum Creek, Griggs, O'Shaughnessy, Hoover has 10HP limit the rest are unlimited. Our water seems ok to me, but I guess it isnt as clean as Akron's.
In land grant states (Ohio) the state owns the water and wildlife in a river, but people can and usually do own the land. In the Virginia Military Survey District property lines were commonly established along the centerline of a creek or river.


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## plybon72

mdogs444 said:


> Bringing a gun onto private property in an effort to tell the private property owner that you can use his land without his permission based on a "book" that has no legal bearing is a good way to get yourself dropped in a 10ft hole behind a barn.


Lemme guess,, you vote republican don't you? 

Only a right winger could have twisted what I said into that fantasy.


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## plybon72

This issue is far from a dead horse and threads like this are a wake-up call to fisherfolk to work together and get State laws regarding this back in line with the Federal ones. 

It is plumb silly that an issue decided long, long ago should still be a cause for legal actions and subject to "good ol boy" justice where connections and money override law.

The public right of way is no different than any other right of way that may, or may not, be on the copy of your deed,, if you purchase land adjacent to a navigable stream the right of way is part of the deal. That is my opinion and it is backed up by SCOTUS rulings.


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## plybon72

I think this fellow says it better than I can.

**Shamelessly stolen from From a thread on another board RE a similar subject in Virginia***

"---IANAL, and anyone who is a lawyer is encouraged to comment, but this sounds like the homeowners bought an illusion, and should sue the developer for fraud. Or they should avail themselves of the opportunity to do research before buying a fantasy. 

Yes, they bought the land and pay taxes on the land including the riverbed. That ownership allows them to restrict what can be done to develop that land, but, in the case of the river and riverbed state law (and possibly federal as well) creates an easement allowing public use of the river for recreation, both boating and fishing. 

Normally easements are explicitly listed on a deed, but in this case, given that it is the law that creates the limitation, it was not listed. I would be incredibly surprised if the party they bought the land from told them about the state law allowing access to the river. More likely they were simply told that they would 'own their portion' of the river, and they bought it picturing a view of their property that didn't account for the law as it existed when they signed the deed. 

Now, of course, other folks *are* following the law and using the river as the law allows, and this, to the homeowners, lessens the value of 'their' land because it wasn't what they thought it was, and so they are suing the person(s) who dared shatter their illusion, instead of trying to figure out what is wrong with this picture. 

But, simply put, they didn't buy the land they imagined. They bought it as it existed under law, including the right of others to use a portion of it in certain ways. 

And, for the folks saying the state needs to declare eminent domain and pay them for 'taking it', nope, sorry. They never had the right to deny others to fish or paddle by on their section of the river. They just didn't know that. 

Here's hoping that the court orders them to cover the legal costs of the defendants for being this foolish. ---"


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## stak45dx1

Jeez ohh man.... we need a good rain so we can talk about real topics like fresh chrome.


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## plybon72

stak45dx1 said:


> Jeez ohh man.... we need a good rain so we can talk about real topics like fresh chrome.


I am not sure a fishing topic gets much "real-er". 

If you one day find that you cannot use the streams, all the other fishing topics become moot. 

But to each his own. You do not have to care. 

I do and am rather passionate about the subject as I have lost land access, and in many cases that means all pactical access, to the bulk of my bank spots on several different waters. Some of which I had fished for 30+ years. This, of course, is a different issue and those land owners are within their rights to deny access across their property but it gives me a good sense of the importance of the cause.

Here in WV I am covered by the WV State Constitution via the Virginia assembly in 1802 but from time to time still run into game wardens and other LEOs that are not aware of it and default to the "can't touch the bottom" fiction.


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## plybon72

Sorry, I missed this quote the first time around. 



mdogs444 said:


> Your fight has already been tried many times by anglers from major fishing states - Montana, Colorado - and has lost each time, as a private property owner is under no obligation to allow you to use the physical land that he owns and pays property taxes on, and he also has the right to charge you for land access.


I believe you are correct about CO, for now, In MT we did win. In UT the AG has come out in favor of access rights but it has not been codified. There is a fight in VA but I think that has to do with a specific piece of land and a King's grant. 

And yes, a landowner does control land access to the stream. You cannot march over others' land to access a stream,, Unless there is a State or Federal Bridge ROW. In which case you can use that as an access point.


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## plybon72

Here is one from KY. Not sure how this flys in the other waters as KY has an odd navigablity test.

From The State Journal, Frankfort 

JUDGE: WADING IN CREEK IS NOT TRESPASSING Ruling prompted by court case of homeowner who allegedly shot at people in Elkhorn By Lindsey Erdody Published: May 3, 2013 10:42AM 

People boating, fishing, swimming &#8212; and now wading &#8212; in Elkhorn Creek are considered to be on private property, but are not trespassing, Franklin Circuit Judge Phillip Shepherd has ruled. 

Assistant Commonwealth&#8217;s Attorney Zach Becker filed a motion last month for the judge to rule on the interpretation of the law in regard to a case against 60-year-old David Quarles. 

Quarles, who lives on Elkhorn Creek at 4121 Peaks Mill Road, is charged with first-degree wanton endangerment for allegedly shooting four times in the direction of Roseanna Blankenship and two people in canoes. 

He also allegedly shot at people in the creek in 2002 and 2004, but was found not guilty in one case and the other was dismissed for lack of probable cause. 

Quarles also has allegedly made at least 12 calls to 911 in the past 10 years reporting trespassers on the creek. 

The law gives property owners the rights to the center of a stream or river. However, this right is trumped by the public&#8217;s use of the water for recreational purposes such as boating, swimming and fishing, and the right for temporary anchorage and incidental use of the river bend. 

Becker argued Blankenship was in the creek lawfully because the public&#8217;s right to use waterways for navigation is superior to ownership rights. 

Attorney Kevin Fox, who is representing Quarles, argued Blankenship was trespassing because she was wading in the creek on Quarles&#8217; property and &#8220;at no time operated a canoe, boat or any other means by which she was navigating the creek.&#8221; 

Fox attached to his argument an email from Assistant Director of the Kentucky Department of Fish 

and Wildlife Maj. J. Shane Carrier. He said in the email Kentucky law &#8220;states that individuals must have permission from the landowner to wade a stream.&#8221; 

In his decision filed Tuesday, Shepherd wrote, &#8220;the Department of Fish and Wildlife, as an executive branch agency, has no authority to determine criminal or property law.&#8221; 

Shepherd ruled wading is considered &#8220;incidental use&#8221; of the creek and therefore is not trespassing. 

Shepherd and Becker both noted Quarles does own to the center of the creek, but those rights are secondary to the public&#8217;s use of the water. 

However, the public must enter the creek at designated access points or have permission from a landowner to enter through someone&#8217;s property. 

&#8220;It&#8217;s not for being in the creek, it&#8217;s how they got there,&#8221; County Attorney Rick Sparks said. &#8220;If you&#8217;re lawfully in the creek, you cannot be trespassing.&#8221; 

Quarles is scheduled for a jury trial Tuesday. As part of Shepherd&#8217;s ruling, the defense will not be allowed to use the words &#8220;trespassing&#8221; or &#8220;trespassers&#8221; in regard to the people who were in the creek. 

ELKHORN CREEK 

You&#8217;re trespassing if 

>You entered the creek through someone&#8217;s property without the owner&#8217;s permission 

>You&#8217;re on a property owner&#8217;s land 

You&#8217;re not trespassing if 

>You&#8217;re swimming, boating, fishing or wading in the creek 

>You&#8217;ve temporarily anchored on the creek


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## lowhole4trowt

Man, steelheading all over the U.S. must've been great back in the glory days of the early 1800's.....I wonder if they preferred Londons to Manistees back then?

Sidenote-more than 4 different states with different laws have been referenced here spanning a period of over 200 years? I mean during the time frame you are attempting to use for justification it was legal to not only own land (and possibly the stream bed) but human beings as well.


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## mdogs444

plybon72 said:


> Lemme guess,, you vote republican don't you?
> 
> Only a right winger could have twisted what I said into that fantasy.


Political standing has no bearing on breaking the law, and infringing on property rights. The law in Ohio is the law, like it or not. If you want to fish on foot through private property, either obtain permission from the land owner or buy your own piece of land and quit complaining.

YOU were the one that said you carry a gun with you when fishing on private property in case the "nut" home owner comes out and tells you to get lost....not me. I stand by that statement I made, and it comes as no surprise why you lost 90% of your private bank fishing access as you claim.


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## mdogs444

If its such a crazy fantasy, then why do you feel the need to conceal a pistol on someones private land without permission? 



plybon72 said:


> Lemme guess,, you vote republican don't you?
> 
> Only a right winger could have twisted what I said into that fantasy.


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## Osmerus

On November 4 of 2008 we had a chance to make a statement that these systems should be public but it was a 72% to 28% vote against it. The issue was worded in favor of protecting private property hence the 72 to 28 vote. I new many steelheaders and other outdoorsmen that didnt research the issue and voted for it. Many did on purpose which is fine but many others realized their mistake afterwards. Issue 3 was created to preempt a possible future public take over of these areas. Some lawmakers saw the Great Lakes Water Compact of 2008 as a threat to private prop. rights and created the issue.


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## mdogs444

To each their own, but I will always favor private property rights over a government land grab. But thats just me.



Osmerus said:


> On November 4 of 2008 we had a chance to make a statement that these systems should be public but it was a 72% to 28% vote against it. The issue was worded in favor of protecting private property hence the 72 to 28 vote. I new many steelheaders and other outdoorsmen that didnt research the issue and voted for it. Many did on purpose which is fine but many others realized their mistake afterwards. Issue 3 was created to preempt a possible future public take over of these areas. Some lawmakers saw the Great Lakes Water Compact of 2008 as a threat to private prop. rights and created the issue.


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## plybon72

mdogs444 said:


> To each their own, but I will always favor private property rights over a government land grab. But thats just me.


And there is the point,, it is NOT a land grab, you cannot lose what you never had. 

Quite the opposite, Land owners are attempting to take rights from the public. 

I own property with a creek running through it, I cannot do as I please with the creek, dam it, move it, etc, I did not lose the right to manipulate it, because I never had it.


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## plybon72

mdogs444 said:


> Political standing has no bearing on breaking the law, and infringing on property rights. The law in Ohio is the law, like it or not. If you want to fish on foot through private property, either obtain permission from the land owner or buy your own piece of land and quit complaining.
> 
> YOU were the one that said you carry a gun with you when fishing on private property in case the "nut" home owner comes out and tells you to get lost....not me. I stand by that statement I made, and it comes as no surprise why you lost 90% of your private bank fishing access as you claim.




I will do only one personal tit for tat with you and this is it. Enjoy.

I have played on the interwebs long enough to know a right winger buy his/her posts,, it is not the vote but rather the mind-set behind the vote. 

I have no doubt that you "stand by your statement". You read "defend against a nut" and the very best you can do to understand is,, "armed intimidation". You can't help yourself.

I never fish on private property without permission, I do exercise my right to stream bed access

There are nuts out there and river users have been shot at and even killed by land owners ( who went to prison for it) New Stand your ground laws say I am free to return fire or even fire first without fear of prosecution if I feel I am threatened with bodily harm or death. So yes, I will defend myself if threatened. 

Additionally, many States, including mine, have laws against harassing sportsmen. They can be charged with that as well. 
----------

Yes it is current Ohio Law,, and that law is in conflict with Federal law on this issue and very, very, long standing legal precedent.


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## plybon72

Osmerus said:


> On November 4 of 2008 we had a chance to make a statement that these systems should be public but it was a 72% to 28% vote against it. The issue was worded in favor of protecting private property hence the 72 to 28 vote. I new many steelheaders and other outdoorsmen that didnt research the issue and voted for it. Many did on purpose which is fine but many others realized their mistake afterwards. Issue 3 was created to preempt a possible future public take over of these areas. Some lawmakers saw the Great Lakes Water Compact of 2008 as a threat to private prop. rights and created the issue.


That is a shame, clearly more education on this issue is needed. Please get involved and try again.


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## mdogs444

Those things that you mention, property owners already cannot do without government approved permits. that also have nothing to do with prohibiting you from having foot fishing access on their property. You can take the argument as far back as liberals always do citing native Indians, but the Ohio law is the Ohio law like it or not



plybon72 said:


> I will do only one personal tit for tat with you and this is it. Enjoy.
> 
> I have played on the interwebs long enough to know a right winger buy his/her posts,, it is not the vote but rather the mind-set behind the vote.
> 
> I have no doubt that you "stand by your statement". You read "defend against a nut" and the very best you can do to understand is,, "armed intimidation". You can't help yourself.
> 
> I never fish on private property without permission, I do exercise my right to stream bed access
> 
> There are nuts out there and river users have been shot at and even killed by land owners ( who went to prison for it) New Stand your ground laws say I am free to return fire or even fire first without fear of prosecution if I feel I am threatened with bodily harm or death. So yes, I will defend myself if threatened.
> 
> Additionally, many States, including mine, have laws against harassing sportsmen. They can be charged with that as well.
> ----------
> 
> Yes it is current Ohio Law,, and that law is in conflict with Federal law on this issue and very, very, long standing legal precedent.


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## mdogs444

Also stand your ground laws does not apply if you are trespassing and have a firearm on private property without permission.


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## plybon72

lowhole4trowt said:


> Man, steelheading all over the U.S. must've been great back in the glory days of the early 1800's.....I wonder if they preferred Londons to Manistees back then?
> 
> Sidenote-more than 4 different states with different laws have been referenced here spanning a period of over 200 years? I mean during the time frame you are attempting to use for justification it was legal to not only own land (and possibly the stream bed) but human beings as well.



We spoke of 4 but there are many others.

Yes, it is a mess that needs cleaned up. Even well intentioned folks are confused and as a result, often on the wrong side of this issue.


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## plybon72

mdogs444 said:


> Those things that you mention, property owners already cannot do without government approved permits. that also have nothing to do with prohibiting you from having foot fishing access on their property. You can take the argument as far back as liberals always do citing native Indians, but the Ohio law is the Ohio law like it or not


I knew you would use that L word sooner or later.


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## PapawSmith

plybon72 said:


> I have played on the interwebs long enough to know a right winger buy his/her posts,, it is not the vote but rather the mind-set behind the vote. .


And many of us have been here long enough to know a 'lefty' by his/her posts and your stance screams lefty. I work very hard to be able to afford a nice piece of property that has a beautiful river/stream running thru it and you feel you have right to stand on MY property against my permission as long as your feet are wet while you are doing it. Somehow you are 'entitled' to enjoy the fruits of others. Perfect.


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## plybon72

PapawSmith said:


> And many of us have been here long enough to know a 'lefty' by his/her posts and your stance screams lefty. I work very hard to be able to afford a nice piece of property that has a beautiful river/stream running thru it and you feel you have right to stand on MY property against my permission as long as your feet are wet while you are doing it. Somehow you are 'entitled' to enjoy the fruits of others. Perfect.


I politically test out as left leaning Libertarian. If you call that a "lefty", what can I say?

And the whole point is,, You never had the right to deny access. You lose nothing because you never had it to begin with.


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## mdogs444

As you said "tit for tat". 



plybon72 said:


> I knew you would use that L word sooner or later.


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## PapawSmith

plybon72 said:


> I politically test out as left leaning Libertarian. If you call that a "lefty", what can I say?
> And the whole point is,, You never had the right to deny access. You lose nothing because you never had it to begin with.


The laws you reference are from a period when there were laws that indicated I was allowed to own other human beings. Just like those laws, yours are outdated and no longer apply.


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## plybon72

mdogs444 said:


> As you said "tit for tat".


Yeah, you got me on that one,, but I could not let it pass. LOL


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## plybon72

PapawSmith said:


> The laws you reference are from a period when there were laws that indicated I was allowed to own other human beings. Just like those laws, yours are outdated and no longer apply.


They are old, very old if you want to really go back, but many of our current Federal laws are based on law and "common law" predating the USA. I am reasonably sure you would not argue against laws prohibiting murder and those are rather old as well. 

Here in WV, the State Constitution states that old State of Virginia property law would be respected in the newly formed State. One of those old Virginia property laws was the free access to streams. I am not sure that the framers intended to include that one but,, when they painted with the "broad brush", they did. So the question of Federal jurisdiction is moot unless someone tries to change the WV Constitution.


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## plybon72

To boil this down,, Think of it like this,, a navigable stream is a public road by long standing tradition and law, that road extends to the normal width of the stream in a normal year ( excluding extreme flooding events) The public has rights to use that road for all legal purposes, same as any other public road. That part of that liquid road is dry during part of the year has no bearing on the width of the road right of way. 

That is really it. It is no more complicated than that. 

In my particular case a public road ROW extends ten feet into my property for 200+ ft, I maintain it, I pay taxes on it, I cannot legally deny access to it. 
Also, a utility ROW runs through my property, roughly paralleling the public road but 40 feet deeper into my property. I cannot legally deny the utility personnel access to it.
As stated before I also "own" a portion of a small creek. While I do not have to allow access, I am not legally allowed to alter the creek, or even bridge it, without government approval. 

When I purchased this land I bought all of these restrictions and intrusions. No one "took" anything from me, this is what I bought. If it bothered me I would not have purchased it. 

I have purchased property with "surprise" ROWs, so I am now very careful to fully research titles and law.-- I learned my lesson. ( we all hate to pay for it but, attorneys and surveys should always be a part of a land purchase--CYA)

If public stream access bothers you, I suggest you not purchase navigable stream front property. Ohio law may have you covered for now, but IMO it will not stand. 

If your opinion differs,, well, you "thows yur dice and takes yur chances", no crying when you lose.


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## lunker23

I would ask all of you to refrain from using the word "lefty" with regards to this issue. That's my nickname and I don't want to be associated with anything negative


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## plybon72

lunker23 said:


> I would ask all of you to refrain from using the word "lefty" with regards to this issue. That's my nickname and I don't want to be associated with anything negative



LMAO!! I have a pair of honest to goodness dreadlocked, rainbow gathering, rasta, hippy, all but commies, in my family,, until you have been stuck at a long close quarters family gathering with the likes of them,, I doubt you know what a real lefty is. 

Hint: They think I am a flaming right winger.


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## FlashGordon

As someone who moved from Iowa to Ohio just a year ago, I think Ohio gives land owners too many privileges.

In Iowa, if a stream can be navigated by a kayak even one day a year, it's public. You can hunt on any ROW with a shotgun provided you're not within the city limits. That means you can hunt pheasant, doves, etc in the ditches along any field whether the farmer likes it or not. Baiting rules are the same for private land and public land. Everybody gets an equal chance.

It's always easy to find a spot to hunt or fish where you're totally alone. Hunting leases go for reasonable prices there unlike the outrageous prices here.

I reckon that's why Ohio has so many paylakes and high fence hunting preserves while Iowa has almost none.

I think Iowa has a better system than we have here. I hope Ohio changes the laws someday.


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## PapawSmith

FlashGordon said:


> As someone who moved from Iowa to Ohio just a year ago, I think Ohio gives land owners too many privileges.
> I think Iowa has a better system than we have here. I hope Ohio changes the laws someday.


The difference is that Ohio is the 2nd most urbanized state in the nation, so I have read. The people to property ratio is way too high for the outdoor liberties enjoyed by so many other 'less urbanized' states like Iowa.

Think about it, If we could walk all of the river bottoms freely there would be no more shallow water fish habitat and if we could freely hunt the ditches there would be no more road signs.  Too many of us here in Ohio for the limited outdoor resources we have.


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## plybon72

FlashGordon said:


> As someone who moved from Iowa to Ohio just a year ago, I think Ohio gives land owners too many privileges.
> 
> In Iowa, if a stream can be navigated by a kayak even one day a year, it's public. You can hunt on any ROW with a shotgun provided you're not within the city limits. That means you can hunt pheasant, doves, etc in the ditches along any field whether the farmer likes it or not. Baiting rules are the same for private land and public land. Everybody gets an equal chance.
> 
> It's always easy to find a spot to hunt or fish where you're totally alone. Hunting leases go for reasonable prices there unlike the outrageous prices here.
> 
> I reckon that's why Ohio has so many paylakes and high fence hunting preserves while Iowa has almost none.
> 
> I think Iowa has a better system than we have here. I hope Ohio changes the laws someday.


Don't get me started on hunting leases. They are perfectly legal and IMO should remain so but, man the damage they do to the sport. The survival of any club, any sport, any anything, depends on young people getting invovled and devloping a passion for it. I rather doubt many kids can afford to fork out, or would, $500 or much more for local hunt. I have trouble understanding why adults do. 

Fishing, hunting, politcal freedom,, we owe a huge debt to those that came before us and the only way we can pay it is to be honor bound to assure all those that come after us have the opportunity to enjoy them.


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## ironfish

PapawSmith said:


> And many of us have been here long enough to know a 'lefty' by his/her posts and your stance screams lefty. I work very hard to be able to afford a nice piece of property that has a beautiful river/stream running thru it and you feel you have right to stand on MY property against my permission as long as your feet are wet while you are doing it. Somehow you are 'entitled' to enjoy the fruits of others. Perfect.


 papaw just curious,when strangers ask permission to fish your property do you allow them.


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## KTkiff

Any fishing reports?


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## Indybio72

Got a small one at the rocky today. 19 in


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## ztkaz

Caught this guy right before it got completely dark tonight. Way up river. No fight in him though. Also I wich I cod have got a good picture of the fish but I had to use the flash on my phone which ruins the pictures, but this fish had one right of it's body in spawning colors with bright red cheeks and all, then you flip him over to the other side and it looked like a fresh fish. You could literally see on the top of the fish where it splits up to spawning colors to fresh. Very odd never seen anything like it.


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## ReelPower

ztkaz said:


> Caught this guy right before it got completely dark tonight. Way up river. No fight in him though. Also I wich I cod have got a good picture of the fish but I had to use the flash on my phone which ruins the pictures, but this fish had one right of it's body in spawning colors with bright red cheeks and all, then you flip him over to the other side and it looked like a fresh fish. You could literally see on the top of the fish where it splits up to spawning colors to fresh. Very odd never seen anything like it.


I have seen that unique coloration several times - based on where I caught them I pretty sure it occurs when a fish sits next to cover (usually wood) for a long time after running in fresh. Fresh side along the cover is not exposed to sun and remains silver. Other side facing away from cover takes on the stream colors. Pretty weird when you see one for sure. Like one side of a pancake left on the griddle too long.


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## Phineous

Being a land owner with a tributary running through my yard, it is eye opening to see what extent people will go to catch a few fish. Even if this dude is right about walking in the creeks, how does he feel when my wife wakes up in the morning and sees a grown man "playing" in my back yard. Put the legalities aside, and consider how you are convincing yourself that it is acceptable for a grown man to literally play in my back yard. I enjoy seeing kids and even teenagers enjoy the property. Save the legal mumbo jumbo, put your big boy pants on and fish the thousands upon thousands of acres of public land we have. My wife and I would prefer to enjoy our morning coffee without you.


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## Phineous

Being a land owner with a tributary running through my yard, it is eye opening to see what extent people will go to catch a few fish. Even if this dude is right about walking in the creeks, how does he feel when my wife wakes up in the morning and sees a grown man "playing" in my back yard. Put the legalities aside, and consider how you are convincing yourself that it is acceptable for a grown man to literally play in my back yard. I enjoy seeing kids and even teenagers enjoy the property. Save the legal mumbo jumbo, put your big boy pants on and fish the thousands upon thousands of acres of public land we have. My wife and I would prefer to enjoy our morning coffee without you.


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## plybon72

Phineous said:


> Being a land owner with a tributary running through my yard, it is eye opening to see what extent people will go to catch a few fish. Even if this dude is right about walking in the creeks, how does he feel when my wife wakes up in the morning and sees a grown man "playing" in my back yard. Put the legalities aside, and consider how you are convincing yourself that it is acceptable for a grown man to literally play in my back yard. I enjoy seeing kids and even teenagers enjoy the property. Save the legal mumbo jumbo, put your big boy pants on and fish the thousands upon thousands of acres of public land we have. My wife and I would prefer to enjoy our morning coffee without you.


Not being familiar with your property I can't comment on the legality of that but If the property and it's encumbrances no longer suit you, contact a real estate agent. 

Not too far away from my place is a semi rural neighborhood with a small airport, small race track, a heavily used railroad track (and 3 nearby crossings) an Interstate Highway and a High School that likes to celebrate touchdowns with band music and semi large fireworks. I bet many of those folks would trade for a man quietly fishing.


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## stak45dx1

Seriously, it's time for a new rocky river thread, I click in to see if there's any legitiment reports and if the fish are moving in and all I get are these rants complaining about not being able to fish on some land that someone probably worked very hard to obtain. You wanna fish there then raise the money and buy the land like foundations have done out west, then you can let everyone fish it, my guess is you won't like your honey hole nearly as much if you had to share it with every tom, dick and Harry with a fishing pole.


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## ztkaz

stak45dx1 said:


> Seriously, it's time for a new rocky river thread, I click in to see if there's any legitiment reports and if the fish are moving in and all I get are these rants complaining about not being able to fish on some land that someone probably worked very hard to obtain. You wanna fish there then raise the money and buy the land like foundations have done out west, then you can let everyone fish it, my guess is you won't like your honey hole nearly as much if you had to share it with every tom, dick and Harry with a fishing pole.



This thread wasn't created for reports, there is another thread for the rocky but no one wanted to get it back going.


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## lunker23

So I passed through the Metroparks this morning and man do we need some rain. The only good thing about the river being down is that I can scope out locations that have deep holes. This will come in handy when heading out in the winter months. 
Saw a few guys out, but didn't see much action. Maybe the fish are still sleeping


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