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Started By
Message
re: Private vs public water in tidal navigable waterways
Posted on 12/7/16 at 11:03 am to maisweh
Posted on 12/7/16 at 11:03 am to maisweh
quote:
fish it all you want, don't frick up my duck hunting though
I think that's all anybody wants. However many landowners view it as an all or nothing type of situation --- If they bend on fishing then where does it end type of deal.
Unfortunately its all pretty futile and just going to be a bunch of petulant bs. Erosion in the next 50 yrs is going to be a bitch. Enjoy it now because your kids may not be fishing or hunting it whether you own land (water) or not.
0
Posted on 12/7/16 at 11:03 am to Barf
quote:
When I look at a place like the La marsh, I see a wild place that should remain wild and be protected. NO I do NOT mean protected as in privately owned. To me, protecting the marsh means the greatest good to the greatest number for the longest time. Where as I feel that your view is private property rights trump all and that's just something I can never get behind.
I am thankful that Roosevelt stayed up until midnight marking up maps and setting aside land so that everyone has the opportunity to enjoy it.
It's not about us, we have had our fun. It's about setting aside places for people to enjoy after we are dead and gone.
Barf. You continue to deliver!
You need to join the fun next Wednesday in Lafayette
Posted on 12/7/16 at 11:05 am to AlxTgr
quote:
Get behind organizations that buy private land and then donate it to public use.
This doesn't happen because of people like you who sue the frick out of land owners because someone hurt themselves.
Posted on 12/7/16 at 11:06 am to Dock Holiday
quote:Why are you so against private property rights?
Dock Holiday
Posted on 12/7/16 at 11:07 am to Ron Cheramie
I go wherever the water takes me.
Posted on 12/7/16 at 11:09 am to StrongBackWeakMind
quote:
I go wherever the water takes me.
Same..
Posted on 12/7/16 at 11:10 am to Barf
quote:People like me don't sue any one.
This doesn't happen because of people like you who sue the frick out of land owners because someone hurt themselves.
Never heard of The Nature Conservancy?
Posted on 12/7/16 at 11:11 am to AlxTgr
quote:
AlxTgr
Why do you assume that I am?
Posted on 12/7/16 at 11:12 am to Dock Holiday
quote:I am not assuming anything. Your posts are crystal clear.
Why do you assume that I am?
Posted on 12/7/16 at 11:19 am to AlxTgr
quote:
Why are you so against private property rights?
Again, you're trying to apply this unwavering logic to a philosophical discussion. It's just not aplicable.
It's not about private property rights. It's about protecting wild places from exploitation and greed. It's about protecting places for people who haven't been born yet.
What it comes down to is people who use to enjoy unabated access to the marsh are now putting up gates and going out of the way to stop people from enjoying the same freedoms they once enjoyed. It's sad. We should be better than that.
Posted on 12/7/16 at 11:22 am to AlxTgr
I've traveled and fished all over the Costal U.S. and based on my experience I tend to disagree with what Louisiana considers "property". There are many who also disagree.
You are assuming. I'm all for private property rights, I'm not for what Louisiana uniquely calls private property.
You are assuming. I'm all for private property rights, I'm not for what Louisiana uniquely calls private property.
Posted on 12/7/16 at 11:23 am to AlxTgr
quote:
People like me don't sue any one.
Get out of here with that shite. Own what you do, or don't do it.
quote:
Never heard of The Nature Conservancy?
I have. They have exactly one little spot on Grand Isle. You can't just walk up to their front door and donate land. My sisters and I tried to donate some family land and it's not as simple as you think.
Posted on 12/7/16 at 11:24 am to Dock Holiday
quote:But it is.
I've traveled and fished all over the Costal U.S. and based on my experience I tend to disagree with what Louisiana considers "property". There are many who also disagree.
quote:You're for taking something from someone without compensating them for it.
I'm all for private property rights, I'm not for what Louisiana uniquely calls private property.
Posted on 12/7/16 at 11:32 am to AlxTgr
quote:
You're for taking something from someone without compensating them for it.
According to whom?
Posted on 12/7/16 at 11:38 am to AlxTgr
quote:
You're for taking something from someone without compensating them for it.
What exactly would I be taking from someone? I don't think I follow you.
Posted on 12/7/16 at 11:41 am to Dock Holiday
You wouldn't 
The state would to make all the marsh public.
The state would to make all the marsh public. Posted on 12/7/16 at 11:41 am to AlxTgr
quote:
You're for taking something from someone without compensating them for it.
You wanna talk taking from someone without compensating......They have been compensated more than enough from "public" funds to rebuild and save the marshes but still want it to be private!
Posted on 12/7/16 at 11:46 am to AlxTgr
quote:
You wouldn't The state would to make all the marsh public.
Now you're putting words in peoples mouths. What you're doing is not productive.
Posted on 12/7/16 at 11:56 am to AlxTgr
I figure I'll just leave this data dump right here for anyone interested, or for those that need help falling asleep.
This should help in pointing out how different Louisiana view/law is.
Under the common law the issue of navigability was determined by a decision on whether or not the tide ebbed and flowed in a given portion of a stream or tributary. If it did, the stream was navigable. Because of the difference between rivers in England and those in the United States, this rule was not adopted in this country. The rule generally adopted here was that if waters were navigable in fact, they were navigable in law, and originally navigability was defined as a stream susceptible to the useful commercial purpose of carrying the products of the country. Wright v. Seymour (1886) 69 Cal. 122 [10 P. 323], seems to indicate that that was the original definition of navigability in California. As will appear hereinafter this is no longer the rule in this state.
1 Waters and Water Rights (Clark Ed.) page 216, indicates that the basic question of navigability is simply the suitability of the particular water for public use and that modern authorities take that position. With our ever-increasing population, its ever-increasing leisure time (witness the four and five day week), and the ever-increasing need for recreational areas (witness the hundreds of camper vehicles carrying people to areas where boating, fishing, swimming and other water sports are available), it is extremely important that the public not be denied use of recreational water by applying the narrow and outmoded interpretation of "navigability." +
[1] It hardly needs citation of authorities that the rule is that a navigable stream may be used by the public for boating, swimming, fishing, hunting and all recreational purposes. (Munninghoff v. Wisconsin Conservation Com. (1949) 255 Wis. 525 [38 N.W.2d 712, 714-716]; Willow River Club v. Wade (1898) 100 Wis. 421 [76 N.W. 273]; see Diana Shooting Club v. Husting (1914) 156 Wis. 261 [145 N.W. 816], which pointed out that at common law the rights of hunting and fishing were held to be incident to the right of navigation.) [19 Cal. App. 3d 1046]
The modern tendency in several other states, as well as here, to hold for use of the public any stream capable of being used for recreational purposes is well expressed in Lamprey v. State (Metcalf) (1893) 52 Minn. 181 [53 N.W. 1139, 1143], where the court said: "But if, under present conditions of society, bodies of water are used for public uses other than mere commercial navigation, in its ordinary sense, we fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomenclature is preferred. Certainly, we do not see why boating or sailing for pleasure should not be considered navigation, as well as boating for mere pecuniary profit.'" Lamprey points out that there are innumerable waters -- lakes and streams -- which will never be used for commercial purposes but which have been, or are capable of being used, "for sailing, rowing, fishing, fowling, bathing, skating" and other public purposes, and that it would be a great wrong upon the public for all time to deprive the public of those uses merely because the waters are either not used or not adaptable for commercial purposes. (Cases from other states which cite with approval the test in Lamprey v. State, supra, include Coleman v. Schaeffer (1955) 163 Ohio St. 202 [56 Ohio Ops. 214, 126 N.E.2d 444, 446]; Hillebrand v. Knapp (1937) 65 So. Dak. 414 [274 N.W. 821, 822]; Roberts v. Taylor (1921) 47 N. Dak. 146 [181 N.W. 622, 625-626]; see Muench v. Public Service Com. (1952) 261 Wis. 492 [53 N.W.2d 514, 519, 55 N.W.2d 40], wherein a Wisconsin statute now makes a stream navigable in fact which is capable of floating any boat, skiff or canoe, of the shallowest draft used for recreational purposes.)
Among other authorities applying the definition of navigability as the capability of the stream being used for recreational purposes are the following: Diana Shooting Club v. Husting, supra, 145 N.W. 816, 818, where the court held navigable the widening of Rock River in Malzahn's Bay, Wisconsin, which varied seasonably from 8 inches to 2 feet in depth and which sometimes had no water in it. The court pointed out that availability for rowboats made the stream navigable. Rushton ex rel. Hoffmaster v. Taggart, supra, 11 N.W.2d 193, 195, held navigable and open to public use a stream "'not navigable in the sense of commercial travel by any kind of boat.'" The fact that during periods of high water logs were run with the aid of dams was not the determining factor in the decision.
In Willow River Club v. Wade, supra, 76 N.W. 273, a small stream was held navigable although except in times of high water it was impossible to get up the stream as far as the main falls in a rowboat without dragging or pushing it on the bottom of the river in numerous shallow places. Here again, the fact that logs were driven down the river upon freshets and by the aid of dams was not a controlling matter. [19 Cal. App. 3d 1047]
In Ne-Bo-Shone Association, Inc. v. Hogarth (W.D.Mich. 1934) 7 F. Supp. 885 (affd. (6th Cir. 1936) 81 F.2d 70) the stream was held navigable although while used for floating logs in freshets and by the aid of dams, it was never used by boats for commercial purposes. Its average depth was 2 1/2 feet and average width was 50 feet.
In Collins v. Gerhardt (1926) 237 Mich. 38 [211 N.W. 115], a fisherman was held not guilty of a trespass for fishing in the Pine River, a river upon which logs had been floated seasonally.
Canoe and rowboat navigation and log floating were held in Nekoosa-Edwards Paper Co. v. Railroad Com. (1931) 201 Wis. 40 [228 N.W. 144] (affd. 283 U.S. 787 [75 L. Ed. 1415, 51 S.Ct. 352]), to make a stream only 2 to 2 1/2 feet deep navigable.
In Wilbour v. Gallagher (1969) 77 Wn.2d 306 [462 P.2d 232, 238], the court said, "The law is quite clear that where the level of a navigable body of water fluctuates due to natural causes so that a riparian owner's property is submerged part of the year, the public has the right to use all the waters of the navigable lake or stream whether it be at the high water line, the low water line, or in between."
In St. Lawrence Shores, Inc. v. State (1969) 60 Misc.2d 74 [302 N.Y.S.2d 606, 612], a stream which varied from 6 to 8 feet in depth was held navigable because of use by pleasure and sport fishing craft during ice free season.
This should help in pointing out how different Louisiana view/law is.
Under the common law the issue of navigability was determined by a decision on whether or not the tide ebbed and flowed in a given portion of a stream or tributary. If it did, the stream was navigable. Because of the difference between rivers in England and those in the United States, this rule was not adopted in this country. The rule generally adopted here was that if waters were navigable in fact, they were navigable in law, and originally navigability was defined as a stream susceptible to the useful commercial purpose of carrying the products of the country. Wright v. Seymour (1886) 69 Cal. 122 [10 P. 323], seems to indicate that that was the original definition of navigability in California. As will appear hereinafter this is no longer the rule in this state.
1 Waters and Water Rights (Clark Ed.) page 216, indicates that the basic question of navigability is simply the suitability of the particular water for public use and that modern authorities take that position. With our ever-increasing population, its ever-increasing leisure time (witness the four and five day week), and the ever-increasing need for recreational areas (witness the hundreds of camper vehicles carrying people to areas where boating, fishing, swimming and other water sports are available), it is extremely important that the public not be denied use of recreational water by applying the narrow and outmoded interpretation of "navigability." +
[1] It hardly needs citation of authorities that the rule is that a navigable stream may be used by the public for boating, swimming, fishing, hunting and all recreational purposes. (Munninghoff v. Wisconsin Conservation Com. (1949) 255 Wis. 525 [38 N.W.2d 712, 714-716]; Willow River Club v. Wade (1898) 100 Wis. 421 [76 N.W. 273]; see Diana Shooting Club v. Husting (1914) 156 Wis. 261 [145 N.W. 816], which pointed out that at common law the rights of hunting and fishing were held to be incident to the right of navigation.) [19 Cal. App. 3d 1046]
The modern tendency in several other states, as well as here, to hold for use of the public any stream capable of being used for recreational purposes is well expressed in Lamprey v. State (Metcalf) (1893) 52 Minn. 181 [53 N.W. 1139, 1143], where the court said: "But if, under present conditions of society, bodies of water are used for public uses other than mere commercial navigation, in its ordinary sense, we fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomenclature is preferred. Certainly, we do not see why boating or sailing for pleasure should not be considered navigation, as well as boating for mere pecuniary profit.'" Lamprey points out that there are innumerable waters -- lakes and streams -- which will never be used for commercial purposes but which have been, or are capable of being used, "for sailing, rowing, fishing, fowling, bathing, skating" and other public purposes, and that it would be a great wrong upon the public for all time to deprive the public of those uses merely because the waters are either not used or not adaptable for commercial purposes. (Cases from other states which cite with approval the test in Lamprey v. State, supra, include Coleman v. Schaeffer (1955) 163 Ohio St. 202 [56 Ohio Ops. 214, 126 N.E.2d 444, 446]; Hillebrand v. Knapp (1937) 65 So. Dak. 414 [274 N.W. 821, 822]; Roberts v. Taylor (1921) 47 N. Dak. 146 [181 N.W. 622, 625-626]; see Muench v. Public Service Com. (1952) 261 Wis. 492 [53 N.W.2d 514, 519, 55 N.W.2d 40], wherein a Wisconsin statute now makes a stream navigable in fact which is capable of floating any boat, skiff or canoe, of the shallowest draft used for recreational purposes.)
Among other authorities applying the definition of navigability as the capability of the stream being used for recreational purposes are the following: Diana Shooting Club v. Husting, supra, 145 N.W. 816, 818, where the court held navigable the widening of Rock River in Malzahn's Bay, Wisconsin, which varied seasonably from 8 inches to 2 feet in depth and which sometimes had no water in it. The court pointed out that availability for rowboats made the stream navigable. Rushton ex rel. Hoffmaster v. Taggart, supra, 11 N.W.2d 193, 195, held navigable and open to public use a stream "'not navigable in the sense of commercial travel by any kind of boat.'" The fact that during periods of high water logs were run with the aid of dams was not the determining factor in the decision.
In Willow River Club v. Wade, supra, 76 N.W. 273, a small stream was held navigable although except in times of high water it was impossible to get up the stream as far as the main falls in a rowboat without dragging or pushing it on the bottom of the river in numerous shallow places. Here again, the fact that logs were driven down the river upon freshets and by the aid of dams was not a controlling matter. [19 Cal. App. 3d 1047]
In Ne-Bo-Shone Association, Inc. v. Hogarth (W.D.Mich. 1934) 7 F. Supp. 885 (affd. (6th Cir. 1936) 81 F.2d 70) the stream was held navigable although while used for floating logs in freshets and by the aid of dams, it was never used by boats for commercial purposes. Its average depth was 2 1/2 feet and average width was 50 feet.
In Collins v. Gerhardt (1926) 237 Mich. 38 [211 N.W. 115], a fisherman was held not guilty of a trespass for fishing in the Pine River, a river upon which logs had been floated seasonally.
Canoe and rowboat navigation and log floating were held in Nekoosa-Edwards Paper Co. v. Railroad Com. (1931) 201 Wis. 40 [228 N.W. 144] (affd. 283 U.S. 787 [75 L. Ed. 1415, 51 S.Ct. 352]), to make a stream only 2 to 2 1/2 feet deep navigable.
In Wilbour v. Gallagher (1969) 77 Wn.2d 306 [462 P.2d 232, 238], the court said, "The law is quite clear that where the level of a navigable body of water fluctuates due to natural causes so that a riparian owner's property is submerged part of the year, the public has the right to use all the waters of the navigable lake or stream whether it be at the high water line, the low water line, or in between."
In St. Lawrence Shores, Inc. v. State (1969) 60 Misc.2d 74 [302 N.Y.S.2d 606, 612], a stream which varied from 6 to 8 feet in depth was held navigable because of use by pleasure and sport fishing craft during ice free season.
Posted on 12/7/16 at 12:33 pm to Barf
quote:Nope.
Now you're putting words in peoples mouths.
quote:Education is always productive.
What you're doing is not productive.
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