Probably a stupid question; Cornerhopping literally!

[James Riley]

I know a guy in Wyoming that had his attorney look into it for crossing over the snow. His claim was that the State of Wyoming owned the 'water' and you can access navigable waters. He thought that if he crossed on top of the snow and never touched the ground/vegetation that he might get away with it. Pretty sure there was a hole in his bucket but I definitely liked his thinking......................
-Cade

Don't know the law now, but Idaho used to own everything below the ordinary high water mark. In Colorado you could own the bed and banks of the river so people could not walk or wade through but they could float through if they stayed on the water. However, I heard that in Wyoming you could not even float through private property so not sure if stepping on snow would help your buddy.

I have seen a group posting posters in Colorado claiming the "navigable water" in federal law gives them the right to walk through private property along a water way. As a private property owner with a river running through my place, I think that is BS. You can float through, but not walk, in my opinion. If you want to navigate in or on the water, that is fine. I bought this place with that understanding, but stay off my land, which means the bed and banks. Don't like it, change the law and pay me for the taking, but don't just post posters around which encourage people to break the law.

"Navigable" meant with a float or boat, not your boots. Otherwise, what would be a non-navigable water? Just my opinion. And I don't know much about the law on this.

Edited to add: If snow were navigable water, then a body wouldn't be limited to crossing corners on it. He could go ahead and tromp all over the adjacent landowner's property and even hunt and camp on it, right next to the house, if the snow was deep enough that he never touched ground.

 

[Gerald Martin]

James Riley, I don't know where you live, but in Montana the stream access laws state that you are allowed to walk below the "normal high water mark" within the streambed of any navigable water. If you access navigable water at public access point such as where a public road or bridge crosses the stream you can walk up that stream as far as you want without trespassing.

 

[Gerald Martin]

There has been some issued in Mt, my dad and I were unaware of the rule, and some landowner saw us and had the warden issue a ticket. I have also heard of this happening several other times in the state.

Mthuntinfool, just because you were ticketed for trespass doesn't mean it would have stood up in court. I'm not saying I want to be the one to find out, but I don't think a trespass ticket for corner crossing has been contested. I'd be interested in seeing the case and the ruling if it has been.

My understanding is like BuzzH said. I think most LEO's who would write the ticket are counting on the ticket not being contested.

 

[James Riley]

James Riley, I don't know where you live, but in Montana the stream access laws state that you are allowed to walk below the "normal high water mark" within the streambed of any navigable water. If you access navigable water at public access point such as where a public road or bridge crosses the stream you can walk up that stream as far as you want without trespassing.

Montana sounds like Idaho. I'm in Colorado.

 

[Epfd217]

The whole "airspace" argument would imply that a person could receive a trespass ticket for waving their arms over your fence or property line.

Many laws are founded on the principle of intent to commit the crime. If your direct intent is to avoid trespass by find a legal property corner and cross in the least obtrusive way it would seem that you are trying to be as legal as possible.

I just don't see a legal basis to issue trespass citations to people who are intentionally trying to find a way to access legal public lands WITHOUT crossing private lands. I dont think there needs to be a path at every corner, but, crossing "kitty-corner" should not be grounds for a citation.

Thats my personal opinion as a LEO. In my mind it looks like this, can you cross a fence corner safely if there was an electric fence coming from both sides? A property owner owns the lands within their property lines. Waving your hands or butt over the fence as you cross is not a trespass. If its a single steel t-post, good luck. If two adjoining landowners have seperate cattle fences that don't touch, you would be slipping between them and this space is hardly a matter for contention.

To a property owner who is trying to enforce their property lines in that way is simply trying to be punitive. I fully support individual property rights and will always err on the side of the property owner, but some of the claims made here sound ridiculous. I would imagine any citation issued for corner hopping should be thrown out, but you never know. Maybe you'll get a judge who happens to see this every year.

 

[RobG]

Don't know the law now, but Idaho used to own everything below the ordinary high water mark. In Colorado you could own the bed and banks of the river so people could not walk or wade through but they could float through if they stayed on the water. However, I heard that in Wyoming you could not even float through private property so not sure if stepping on snow would help your buddy.

wth...

Whether or not you own the river bottom depends on the type of navigability. If it is a major river used for navigation at the time of statehood the state owns the river bottom. That type of navigability has a couple names, "Navigable in fact" is the one I remember. If the river isn't navigable in fact the landowner owns the river bottom. This is true in all western states.

In MT they avoid the question of the type of navigability by saying that it doesn't matter who owns the bottom, if it is capable of recreation you can use it for water based recreation... However, you can't use it as a path to obtain access to hunting unless you are in a boat. Idaho is similar in that at one time the ID AG said to assume it was NIF unless proven otherwise. Oregon you had prove it was navigable...

It would suck to walk in five miles only to have some guy drop in from a helicopter. I hope they keep that law on Forest Service. The number of areas in BLM land where this can happen seems limited so its ok there.

I'm waiting for the "anti-corner crossing bill" to clarify the MCA. I'm surprised it hasn't been put forth.

enough rambling... nightnight.

 

[Poke 'Em]

Montana sounds like Idaho. I'm in Colorado.

I know we're getting off topic, but Colorado's law actually runs contradictory to federal law. That doesn't mean CO doesn't get away with it (see marijuana).

 

[Poke 'Em]

wth...

Whether or not you own the river bottom depends on the type of navigability. If it is a major river used for navigation at the time of statehood the state owns the river bottom. That type of navigability has a couple names, "Navigable in fact" is the one I remember. If the river isn't navigable in fact the landowner owns the river bottom. This is true in all western states.

In MT they avoid the question of the type of navigability by saying that it doesn't matter who owns the bottom, if it is capable of recreation you can use it for water based recreation... However, you can't use it as a path to obtain access to hunting unless you are in a boat. Idaho is similar in that at one time the ID AG said to assume it was NIF unless proven otherwise. Oregon you had prove it was navigable...

It would suck to walk in five miles only to have some guy drop in from a helicopter. I hope they keep that law on Forest Service. The number of areas in BLM land where this can happen seems limited so its ok there.

I'm waiting for the "anti-corner crossing bill" to clarify the MCA. I'm surprised it hasn't been put forth.

enough rambling... nightnight.

That's not really accurate. Federal courts have deemed that the river does not have to e determined navigable, nor does it even have to have been used for navigation at any time to still be held in trust for public use. If it is capable of supporting commercial navigation (basically, can you float a log down it?), it's to be considered a public highway. Many state laws run contradictory to federal laws/rulings, but simply haven't been challenged at a high enough level to be thrown out, because doing so is very costly.

 

[James Riley]

wth...

Whether or not you own the river bottom depends on the type of navigability. If it is a major river used for navigation at the time of statehood the state owns the river bottom. That type of navigability has a couple names, "Navigable in fact" is the one I remember. If the river isn't navigable in fact the landowner owns the river bottom. This is true in all western states.

I think there is or could be a conflict between state and federal law, but the way I understood it in Colorado is that I may not own the water or the fish in it, but I own the ground over which that water flows; i.e. the bed and banks. Thus, you can "navigate" over or through that water so long as you stay off my property. That, to me, would be "navigable in fact". If you can't navigate over or through that water without touching my land, then I guess it's not, in fact, navigable. To say otherwise is to render the term "navigable" meaningless when it comes to water, especially in light of federal environmental law on "waters of the United States" (where even a hydro-geologic connection between surface water and ground water renders any connected water anywhere subject to federal jurisdiction).

In Colorado we have the headwaters of many rivers which are navigable down stream, in other states, and even in the lower reaches of Colorado but which become un-navigable at the headwaters due to small size and/or whitewater. So, is "navigable in fact" based on historic use at the time of designation of the State, or does that definition change with technology? I think the original intent was related to interstate commerce and barges and shipping, not the ability of a trapper to climb down a stream bed without getting out on either side, or the ability of some drunks on jet skis to rip up the middle of your property because they invented a way to have a 2 inch draft over a hundred years later.

Again, I'm don't pretend to know the law on this in every state or at the federal level.

 

[James Riley]

Many state laws run contradictory to federal laws/rulings, but simply haven't been challenged at a high enough level to be thrown out, because doing so is very costly.

Or, I would suggest, because the challenger might find the state law is not thrown out but affirmed by the highest federal court. Maybe there is an uneasy tension here where neither party wants the burden and expense of knowing an answer they may not want, kind of like the corner crossing issue. I referenced above the "waters of the United States" issue and how a diffuse hydro-geologic connection between surface and ground water had the EPA claiming Clean Water Act jurisdiction over both. So then, would that same jurisdiction apply above ground, extending the Clean Water Act into where the the Clean Air Act was meant to be? We all learned about the hydrological cycle in elementary school but the law likes to try to carve Mother Nature up when she just doesn't work that way. Maybe we walk anywhere and it won't be trespass so long as it's raining, or even in the sunshine so long as the grass is evapotransporating.

 

[hank4elk]

...or there is Hydrophobisity involved......
Their playing with bill regarding the waterways here in NM too................is a dry stream a watercourse?
LOL

 

[James Riley]

...or there is Hydrophobisity involved......
Their playing with bill regarding the waterways here in NM too................is a dry stream a watercourse?
LOL

Ha! Now I have to go look up that word. Some treaties say "so long as the rivers shall run . . ." We'll fix that.

 

[RobG]

That's not really accurate. Federal courts have deemed that the river does not have to e determined navigable, nor does it even have to have been used for navigation at any time to still be held in trust for public use. If it is capable of supporting commercial navigation (basically, can you float a log down it?), it's to be considered a public highway. Many state laws run contradictory to federal laws/rulings, but simply haven't been challenged at a high enough level to be thrown out, because doing so is very costly.

That is pretty consistent with what I was saying, at least in Western states, but it doesn't necessarily give you the right to walk on the bottom which may be owned by the landowner in some cases. Also, if if the state owns the river bottom they apparently don't have to allow the public to walk on it (Wyoming/Colorado)... I'm on fuzzy ground there since i haven't looked into Wyoming or Colorado. Given all the groups suing and the high profile of Wyoming and Colorado I seriously doubt the issue is that haven't been challenged at a high enough level. American Whitewater has one of the better water lawyers out there but they are focusing on different issues.

James, Navigable in Fact is a legal term, which always lack common sense. When I lived in Oregon the rule was that a river is NOT NIF until proven otherwise. An interesting case was the challenge that the Rogue River was not NIF (I see it was settled, see here - the first few pages are quite informative). When I lived in Idaho it wasn't clear and to clarify the AG wrote that the rivers are NIF until proven otherwise. In MT the legislature said it doesn't matter... you can walk on the bottom for water related activities but interestingly enough you can't necessarily use it as a highway to access grounds for things like hunting/camping.

[edit: Supreme court's recent ruling determining that NIF is by stream segment, i.e. the areas around waterfalls or other stretches of non-navigable waters aren't owned by the state. ]

Now I have to get to my day job...
rg

 

[Straight Arrow]

What if a corner crossing is located in the middle of a NIF stream? 'Probably just another stupid question.

 

[hank4elk]

Ha! Now I have to go look up that word. Some treaties say "so long as the rivers shall run . . ." We'll fix that.

My retired USFS Geologist/Hydrologist neighbor reminded me of that one,Hydrophobic.....to shed water,like off a ducks back. Soil around junipers is hydrophic. Water beads up and runs of like soil is oiled...........

 

[Mthuntinfool]

James Riley, I don't know where you live, but in Montana the stream access laws state that you are allowed to walk below the "normal high water mark" within the streambed of any navigable water. If you access navigable water at public access point such as where a public road or bridge crosses the stream you can walk up that stream as far as you want without trespassing.

But it cannot be used to gain access to public land for hunting, it only pertains to fishing.

 

[Poke 'Em]

I think there is or could be a conflict between state and federal law, but the way I understood it in Colorado is that I may not own the water or the fish in it, but I own the ground over which that water flows; i.e. the bed and banks. Thus, you can "navigate" over or through that water so long as you stay off my property. That, to me, would be "navigable in fact". If you can't navigate over or through that water without touching my land, then I guess it's not, in fact, navigable. To say otherwise is to render the term "navigable" meaningless when it comes to water, especially in light of federal environmental law on "waters of the United States" (where even a hydro-geologic connection between surface water and ground water renders any connected water anywhere subject to federal jurisdiction).

In Colorado we have the headwaters of many rivers which are navigable down stream, in other states, and even in the lower reaches of Colorado but which become un-navigable at the headwaters due to small size and/or whitewater. So, is "navigable in fact" based on historic use at the time of designation of the State, or does that definition change with technology? I think the original intent was related to interstate commerce and barges and shipping, not the ability of a trapper to climb down a stream bed without getting out on either side, or the ability of some drunks on jet skis to rip up the middle of your property because they invented a way to have a 2 inch draft over a hundred years later.

Again, I'm don't pretend to know the law on this in every state or at the federal level.

Federal courts have ruled that the streambed, not just the water, is considered part of the public highway, to be held by the states for the public trust.

 

[Poke 'Em]

Read this.

http://lawreview.law.ucdavis.edu/issues/16/3/symposium-access-waterways/DavisVol16No3_Frank.pdf

 

[James Riley]

Read this.

http://lawreview.law.ucdavis.edu/issues/16/3/symposium-access-waterways/DavisVol16No3_Frank.pdf

Read the first paragraph on page 269 of your 32 year old law review article from California and see what the recent federal decisions say about ownership of those "western water ways." i.e. State.

Then read about Colorado: see the last paragraph on page 14 to 15 of this article:
http://www.kentlaw.iit.edu/Documents/Academic Programs/Honors Scholars/2002/Erika-Swanson-paper.pdf

 

[Poke 'Em]

Read the first paragraph on page 269 of your 32 year old law review article from California and see what the recent federal decisions say about ownership of those "western water ways." i.e. State.

Then read about Colorado: see the last paragraph on page 14 to 15 of this article:
http://www.kentlaw.iit.edu/Documents/Academic Programs/Honors Scholars/2002/Erika-Swanson-paper.pdf

I'm not sure your point on statement one. The states have been granted ownership of navigable waterways to be held in trust for the public. The law review may be 32 years old, but I've seen nothing since then that has overturned the numerous federal court decisions declaring that states own the navigable waterways, including the streambeds, and those are to be held in trust for public use.

Just because Colorado has gone contrary to what federal law/courts say they should do doesn't mean that's the way it should be.