Fisher's Ford and Boater's rights
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justin.payne
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Re: Fisher's Ford and Boater's rights
Ive been down there a hundred times and have only had 2 run ins with the landowner. One was the wife which just told me to come ask permission first, and the other was with the man himself. Both dealings came when I walked across their property. There is actually kinda a halfway trail on river left and that's the side of the bridge you park on anyways. Ive never had anyone on river left say a word to me. However, if I were in a position that he was firing a gun or even threatened that he would fire a gun, I would call the police out there myself. I understand landowners rights and boaters rights, but neither is worth getting someone severely hurt or killed over.
Re: Fisher's Ford and Boater's rights
"I paddle down the stream bed and hike back up it. I don't trespass and I don't cause trouble."
Sounds like trespassing to me if the landowner owns the streambed -- for as soon as your feet touch the streambed you are breaking the law. Only the water itself is held by the public and one has the right of free passage only on the water and not on the land. Moreover right of free passage, i.e. navigibility is defined by the courts and to my knowledge the Illinois has not yet been declared by the courts as a "navigible stream".
But even if it were you do not have the right to wade or pull your boat upstream using his streambed, his property without his permission -- if you can't paddle back upstream then follow PainterBob's advice "JUST GO WITH THE FLOW" and keep on movin' on. Even on a navigible stream you do not have the right to infinge upon his private property rights unless portage or emergency demands egress (and even then ideally you should stay below the high water mark).
If you feel you just must trespass as an affirmation of your rights then be be prepared to defend yourself in court and be prepared for a verdict that will likely further compromise our access to this paddling resource and others.
For more information see: Gibby Haynes and Paul Leary
Sounds like trespassing to me if the landowner owns the streambed -- for as soon as your feet touch the streambed you are breaking the law. Only the water itself is held by the public and one has the right of free passage only on the water and not on the land. Moreover right of free passage, i.e. navigibility is defined by the courts and to my knowledge the Illinois has not yet been declared by the courts as a "navigible stream".
But even if it were you do not have the right to wade or pull your boat upstream using his streambed, his property without his permission -- if you can't paddle back upstream then follow PainterBob's advice "JUST GO WITH THE FLOW" and keep on movin' on. Even on a navigible stream you do not have the right to infinge upon his private property rights unless portage or emergency demands egress (and even then ideally you should stay below the high water mark).
If you feel you just must trespass as an affirmation of your rights then be be prepared to defend yourself in court and be prepared for a verdict that will likely further compromise our access to this paddling resource and others.
For more information see: Gibby Haynes and Paul Leary
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Victor Caballeros
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Re: Fisher's Ford and Boater's rights
The North side land owner name is Steve and if you bring him a 6 pack of Bud light and ask to drive down there. He will have a big smile on his face and tell you anytime you want to come back and paddle you can. This is the best way to surf the Ford. I used to bring chairs and a cooler right next to the creek. This would the easiest way
egestatem semper in angaria
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ieatcrayons
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- Name: phillip
- Location: Conway AR.
Re: Fisher's Ford and Boater's rights
if your in the water..... and pellets are raining down on you...??? call me silly.. but isn't this getting shot at? don't get me wrong.. i understand trasspassing.. got that.. but paddlin in the water......and pellets raining down on you.... in other words.. why hasn't this guy been put in jail or smiply shot by someone else floating down the river...getting shot at by him.?
I bring NOTHING to the table
Re: Fisher's Ford and Boater's rights
"why hasn't this guy been put in jail or simply shot by someone else floating down the river...getting shot at by him.?"
1) Perhaps no one has ever filed charges against him...
2) Perhaps the district attorney in examining the charges so filed believes there is insufficient proof to garnish a guilty verdict...
3) Perhaps other paddlers see no beneficial outcome in having a shoot out on the river...
But if you have proof that you were intentionally shot at with the intent to cause harm -- by all means file charges.
Of course there's another option -- after being held at gunpoint by McElroy on the Mulberry many years ago I simply avoided that section of the river that put me in his gunsights -- not tellin' anyone they need to back down from a gun-toting landowner trying to protect or safeguard his property but there be a lot of water out there.
1) Perhaps no one has ever filed charges against him...
2) Perhaps the district attorney in examining the charges so filed believes there is insufficient proof to garnish a guilty verdict...
3) Perhaps other paddlers see no beneficial outcome in having a shoot out on the river...
But if you have proof that you were intentionally shot at with the intent to cause harm -- by all means file charges.
Of course there's another option -- after being held at gunpoint by McElroy on the Mulberry many years ago I simply avoided that section of the river that put me in his gunsights -- not tellin' anyone they need to back down from a gun-toting landowner trying to protect or safeguard his property but there be a lot of water out there.
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justin.payne
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Re: Fisher's Ford and Boater's rights
Federal Navigable Rivers List
A federal determination of navigability signifies
federal jurisdiction for regulation. This is not
related to the state’s determination of navigability,
which signifies ownership. What if a stream is on
the federal navigable waterways list but not the
state navigable waterways list? The streamside
owners would still own the streambed as determined
by their deed, but the federal government
would have the right to regulate the landowner’s
actions in the streambed.
http://www.kingsriverwatershed.org/publ ... -13-09.pdf" onclick="window.open(this.href);return false;
I'm pretty sure you will not find a judge that says the "Illinois River" is not a navigable waterway.
Determining the navigability of a stream is essentially a matter of deciding if it is public or private property. State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980), cert. denied, 449 U.S. 843 (1980). If a body of water is navigable, it is considered to be held by the State in trust for the public. See Hayes v. State, 254 Ark. 680, 496 S.W.2d 372 (1973); 9 Powell on Real Property § 65.11[2][a] (2003). Navigability is a question of fact. Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814 (1945).
I believe the fact is the Illinois river is public. If this were not the case, all the outfitters would close in fear of being sued for trespassing.
FYI- The streambed includes land to the "high water mark."
The high-water mark of a navigable stream is the line delimiting its bed from its banks and is to be found by ascertaining where the presence and action of the water are so usual and long-continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil. St. Louis Iron Mtn. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931 (1890). This term is relevant because, if water is navigable, members of the public have the right to use the water at any point below the high-water mark.
Which in the case of Fishers Ford would be basically just the streambed and the small rocky beach.
It is not illegal to walk your boat up the streambed to the public access, but it is illegal to cross his land to make it easier to get to your car. Simple as that...Follow the law and pick up trash. If he threatens you, call the police.
Maybe someone should contact the county sherriffs office to see what thier take is on the situation. Or maybe not....
A federal determination of navigability signifies
federal jurisdiction for regulation. This is not
related to the state’s determination of navigability,
which signifies ownership. What if a stream is on
the federal navigable waterways list but not the
state navigable waterways list? The streamside
owners would still own the streambed as determined
by their deed, but the federal government
would have the right to regulate the landowner’s
actions in the streambed.
http://www.kingsriverwatershed.org/publ ... -13-09.pdf" onclick="window.open(this.href);return false;
I'm pretty sure you will not find a judge that says the "Illinois River" is not a navigable waterway.
Determining the navigability of a stream is essentially a matter of deciding if it is public or private property. State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980), cert. denied, 449 U.S. 843 (1980). If a body of water is navigable, it is considered to be held by the State in trust for the public. See Hayes v. State, 254 Ark. 680, 496 S.W.2d 372 (1973); 9 Powell on Real Property § 65.11[2][a] (2003). Navigability is a question of fact. Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814 (1945).
I believe the fact is the Illinois river is public. If this were not the case, all the outfitters would close in fear of being sued for trespassing.
FYI- The streambed includes land to the "high water mark."
The high-water mark of a navigable stream is the line delimiting its bed from its banks and is to be found by ascertaining where the presence and action of the water are so usual and long-continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil. St. Louis Iron Mtn. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931 (1890). This term is relevant because, if water is navigable, members of the public have the right to use the water at any point below the high-water mark.
Which in the case of Fishers Ford would be basically just the streambed and the small rocky beach.
It is not illegal to walk your boat up the streambed to the public access, but it is illegal to cross his land to make it easier to get to your car. Simple as that...Follow the law and pick up trash. If he threatens you, call the police.
Maybe someone should contact the county sherriffs office to see what thier take is on the situation. Or maybe not....
Re: Fisher's Ford and Boater's rights
It's all about interpretation of the law and "what is right".
First, the courts have never declared the Illinois Bayou as "navigible" -- yes, it probably is as be State vs. McElroy but has never been tested in court.
Secondly, there isn't a court in the state that will affirm one's ability to fully avail themselves to all lands within the "river bed up to the high water mark of a navigable stream" -- this would literally mean you could float down the creek to any site, flop out a lawn chair and sit on the bank anywhere you like all day long drinking beer and having fun -- or come summer time you can hike up the streambed of any river or creek in our state. Go try this sometime -- hopefully right in front of someone's house -- say on the Little Red River -- park yourself right in front of a boathouse and see how long your right to sit there all day is upheld by local enforcement. Or set up a summer camp on the riverbank (or dried up streambed come August) of Archey creek and see how long before local landowners come down to remove you from their property.
The more you paddlers try to "make a statement regarding public access" while infringing upon the rights of the riparian landowners you are going to find that you will soon not be welcomed anywhere -- whatever happen to compromise, mutual respect, and collective bargaining -- I think your best bet is to work with the landowners rather than threaten legal -- or encourage a "shoot out" on the river.
First, the courts have never declared the Illinois Bayou as "navigible" -- yes, it probably is as be State vs. McElroy but has never been tested in court.
Secondly, there isn't a court in the state that will affirm one's ability to fully avail themselves to all lands within the "river bed up to the high water mark of a navigable stream" -- this would literally mean you could float down the creek to any site, flop out a lawn chair and sit on the bank anywhere you like all day long drinking beer and having fun -- or come summer time you can hike up the streambed of any river or creek in our state. Go try this sometime -- hopefully right in front of someone's house -- say on the Little Red River -- park yourself right in front of a boathouse and see how long your right to sit there all day is upheld by local enforcement. Or set up a summer camp on the riverbank (or dried up streambed come August) of Archey creek and see how long before local landowners come down to remove you from their property.
The more you paddlers try to "make a statement regarding public access" while infringing upon the rights of the riparian landowners you are going to find that you will soon not be welcomed anywhere -- whatever happen to compromise, mutual respect, and collective bargaining -- I think your best bet is to work with the landowners rather than threaten legal -- or encourage a "shoot out" on the river.
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justin.payne
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Re: Fisher's Ford and Boater's rights
Easy Gink.....Nobody is encouraging any "shoot outs"
As a matter of fact Illinois Bayou is considered a navigable stream. As well as the Little Red.
http://www.swl.usace.army.mil/regulator ... treams.pdf" onclick="window.open(this.href);return false;
However, the Illinois Bayou, Little Red River, and Archey Creek are not the streams in question. Also, no need in comparing apples to oranges.
The question that has presented itself is, "Is the Illinois River considered a navigable stream for recreational purposes?" I encourage you to read the State v. McIlroy case, if you have not already. Originally in the stated case, the determination of the navigability was basically whether or not it could be floated 6 months out of the year. Several amicus curiae were filed, including one by the ACC to adopt this same determination by similar streams in AR. This was later revised to say that it need not be floatable even 6 months out of the year to be navigable.
Im just stating the facts. I'm not one to start a legal battle or "shoot out" on the river. As a matter of fact, I have talked to the landowner several times (after being caught twice) and he has allowed me access every time I asked. Maybe the ACC should send him a Christmas Card....that always smoothes things over.
As a matter of fact Illinois Bayou is considered a navigable stream. As well as the Little Red.
http://www.swl.usace.army.mil/regulator ... treams.pdf" onclick="window.open(this.href);return false;
However, the Illinois Bayou, Little Red River, and Archey Creek are not the streams in question. Also, no need in comparing apples to oranges.
The question that has presented itself is, "Is the Illinois River considered a navigable stream for recreational purposes?" I encourage you to read the State v. McIlroy case, if you have not already. Originally in the stated case, the determination of the navigability was basically whether or not it could be floated 6 months out of the year. Several amicus curiae were filed, including one by the ACC to adopt this same determination by similar streams in AR. This was later revised to say that it need not be floatable even 6 months out of the year to be navigable.
Im just stating the facts. I'm not one to start a legal battle or "shoot out" on the river. As a matter of fact, I have talked to the landowner several times (after being caught twice) and he has allowed me access every time I asked. Maybe the ACC should send him a Christmas Card....that always smoothes things over.
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justin.payne
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Re: Fisher's Ford and Boater's rights
One more thing.....If the Illinois river is just some private stream that is owned entirely by the landowners on each side....why is the IRWP implementing a watershed management plan for the entire river? A cause in which the Walton Family Foundation has donated $300,000 along with several others?
Re: Fisher's Ford and Boater's rights
You are correct the Illinois Bayou has been defined by the courts as a navigible river -- however the Illinois River has not. State vs. McElRoy may serve as precedence and allow us to "presume" that navigibility would be extended to the Illinois River and all other similar waterways but it's "presumption" only -- until navigibility on the Illinois River has been subjected to judicial overview any statement regarding the Illinois River as a navigible stream is purely conjecture/presumption on our part. The same holds true for Archey Fork -- and thus it serves as an "apples to apples comparison".
As for the argument regarding the IRWP implementation of a watershed management plan as somehow indicative of some form of public ownership -- well it carries no weight. There are watershed management plans -- and citizen/environmental alliances -- for all kinds of lands held by private landowners -- and it doesn't mean a thing. In fact we ourselves could start an Arkansas Rivers Alliance today regarding every last watershed in the state and make a claim that all lands within the watershed are now public property -- and guess what? -- those lands held in private ownership would remain in private ownership.
I really like the Christmas Card idea -- for all this talk of confrontation, legal action, gun-toting, and upsurping the rights of private landowners via public and private alliances scares the hell out of me. I feel sorry for riparian landowners who are confronted with paddlers who hold such values -- I bet the poor guy on the Illinois River isn't even aware that he is being disparaged with such malice behind his back.
As for the argument regarding the IRWP implementation of a watershed management plan as somehow indicative of some form of public ownership -- well it carries no weight. There are watershed management plans -- and citizen/environmental alliances -- for all kinds of lands held by private landowners -- and it doesn't mean a thing. In fact we ourselves could start an Arkansas Rivers Alliance today regarding every last watershed in the state and make a claim that all lands within the watershed are now public property -- and guess what? -- those lands held in private ownership would remain in private ownership.
I really like the Christmas Card idea -- for all this talk of confrontation, legal action, gun-toting, and upsurping the rights of private landowners via public and private alliances scares the hell out of me. I feel sorry for riparian landowners who are confronted with paddlers who hold such values -- I bet the poor guy on the Illinois River isn't even aware that he is being disparaged with such malice behind his back.
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Victor Caballeros
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Re: Fisher's Ford and Boater's rights
Gink I feel you about the land owner. He has aked me to post up his rules which is ask for permisson to come down there. There has been lots of people that have destroyed his fence, signs, and tables. Also have left hugh amounts of trash and genrally left his land in ruin. He also had people pull guns on him too. So i understand his point and our point of veiws to me it is easy bring a six pack knock on his door and ask to go down there. If he is not home leave the beer at the door and drive to the bridge and put in and drag back he will know your down there and you brought him his beer and be at ease about it. I would hate to push his button and have him be on the offenvise about all this
egestatem semper in angaria
Re: Fisher's Ford and Boater's rights
Please do not get on the banks at Fishers Ford, period. All this Internet "legal" research and supposition about the law does you no good in court. If we can avoid testing navigability in court again we should. There is no way to determine if the Illinois or any other river will pass a navigability test (the McIroy case was only for the Mulberry, and does not necessarily apply to other streams). Once in court, it won't just be you vs. the landowner. It'll be paddlers vs. landowners, with some mighty big lobbies and lawyers on the side of the landowners (e.g. Farm Bureau). It will be a toss up whether or not paddlers win or lose. If we lose, we could lose big. Granted we could win, but that's a big risk to take just for the "right" to sit or walk on the bank at Fishers Ford. I've been there dozens of times over the years. Asked the landowner for permission once, walked or paddled back upstream in the water all the other times. If you can't either set shuttle downstream or paddle upstream to the road right of way, then ask the landowner for permission or don't boat there. Doesn't seem like a lot to ask to keep good relations between boaters and landowners - relations that we depend on to run a lot of creeks besides the Illinois R!
Spread the word on this too - it just takes one boater standing on a streambank demanding their rights to blow it for everyone. I commend the original poster for his patience and for walking away - that's what is needed. I would strongly urge that no one go out there waiving around any legal looking documents printed off the Internet. If I were a landowner, that would piss me off, even if I was a reasonable sort of person.
- Fish
Spread the word on this too - it just takes one boater standing on a streambank demanding their rights to blow it for everyone. I commend the original poster for his patience and for walking away - that's what is needed. I would strongly urge that no one go out there waiving around any legal looking documents printed off the Internet. If I were a landowner, that would piss me off, even if I was a reasonable sort of person.
- Fish
Re: Fisher's Ford and Boater's rights
I think Bob said it best: you cannot win. In addition to the fact that the guy could wreck the spot, etc., if padders sue and finally manage to win in court, we could still lose the battle in the court of public opinion. Think about it - do you look at court decisions and say "oh, yeah, if the court decided that, then it must be right, so I will support that decision." Neither do other landowners with streams on their properties. A victory in court might piss off a lot of currently friendly (or at least ambivalent) people. It will almost certainly make them much more aware of the issue and get them associating boaters with dangerous lawsuits.
Of course, landowners risk getting a lot of bad press if they sue or call the cops a bunch, so the vast majority of them are not trying to hassle boaters and go to court either. We can't win, but they pretty much can't either. Best bet is to try to avoid fighting about it and maintain good relations.
Anyway, it looks like the original poster and others are being reasonable and trying to work with the landowner out there. I do want to say that I don't think this means anyone should stop going to Fishers Ford. If you're floating on the water or wading/swimming in the middle of a year-round stream, you're likely going to get a lot of sympathy from the police, etc., since they or their buddies probably do some similar wading/floating when they are fishing (fishing/hunting lobby is a MUCH bigger one than kayakers!). if not, ask them how the fishing is around there to get them thinking about it. Unless they're crazy, landowners should appreciate that. If they are crazy, then seriously consider whether the river is worth getting arrested, fought in court, or shot over. If your answer to any of those questions is "no", just smile, wish them a nice day, and move on.
- Fish (paddler and former landowner)
Of course, landowners risk getting a lot of bad press if they sue or call the cops a bunch, so the vast majority of them are not trying to hassle boaters and go to court either. We can't win, but they pretty much can't either. Best bet is to try to avoid fighting about it and maintain good relations.
Anyway, it looks like the original poster and others are being reasonable and trying to work with the landowner out there. I do want to say that I don't think this means anyone should stop going to Fishers Ford. If you're floating on the water or wading/swimming in the middle of a year-round stream, you're likely going to get a lot of sympathy from the police, etc., since they or their buddies probably do some similar wading/floating when they are fishing (fishing/hunting lobby is a MUCH bigger one than kayakers!). if not, ask them how the fishing is around there to get them thinking about it. Unless they're crazy, landowners should appreciate that. If they are crazy, then seriously consider whether the river is worth getting arrested, fought in court, or shot over. If your answer to any of those questions is "no", just smile, wish them a nice day, and move on.
- Fish (paddler and former landowner)
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justin.payne
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Re: Fisher's Ford and Boater's rights
I agree Fish. In my opinion that the Illinois River "should" be a navigable waterway and that is shows the characteristics of a navigable waterway. I personally would not want to test the navigability of any stream in AR.
Gink..I personally feel sorry for paddlers/weekend canoeists who unknowingly set foot on the bank beside his property and get threatened with a gun.
Gink..I personally feel sorry for paddlers/weekend canoeists who unknowingly set foot on the bank beside his property and get threatened with a gun.
Re: Fisher's Ford and Boater's rights
"If we can avoid testing navigability in court again we should. There is no way to determine if the Illinois or any other river will pass a navigability test".
Indeed -- we should consider ourselves lucky. Rejoice that precedence has been made. But don't consider our positon invincible -- there are far more private landowners than there are paddlers in this state and litigation -- even for the winners -- is expensive. When you consider that 99+% of our waterways have open and unrestricted passage -- why risk it?
Yes I do feel for the landowner -- just as I do the unknowing paddlers -- not really fond of purple and signage but if the landowner is going to be so "particular" he needs to post his property clearly so that there is no room for misunderstanding -- at the very least he owes the paddling public notice of his intent to overzealously -- and perhaps misappropriately -- enforce his rights.
Good stuff.
Indeed -- we should consider ourselves lucky. Rejoice that precedence has been made. But don't consider our positon invincible -- there are far more private landowners than there are paddlers in this state and litigation -- even for the winners -- is expensive. When you consider that 99+% of our waterways have open and unrestricted passage -- why risk it?
Yes I do feel for the landowner -- just as I do the unknowing paddlers -- not really fond of purple and signage but if the landowner is going to be so "particular" he needs to post his property clearly so that there is no room for misunderstanding -- at the very least he owes the paddling public notice of his intent to overzealously -- and perhaps misappropriately -- enforce his rights.
Good stuff.
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