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Missouri’s “Right to Float”

Posted in: Spotlight- Mar 14, 2017 No Comments

Missouri is blessed with hundreds of miles of streams suitable for fishing and floating, both mainstays of our tourist economy and recreational heritage. I have floated for almost fifty years, and while my boating friends and I always respect the rights of riverside landowners, I have also witnessed disrespect and debauchery among some floaters. I can see why this would infuriate landowners. But I would also argue that in many cases it is not floaters, but walk-in or drive-in users, who perpetrate the majority of the incivility.

Floater/landowner tensions found tragic expression in the shooting and subsequent second-degree murder conviction of a riverside landowner a few years ago. Ironically, the incident happened on the Meramec River, itself the subject of a 1954 Missouri Supreme Court case, Elder v. Delcour, which gave floaters the right to be on the gravel bar where the 2013 shooting occurred. In Delcour, a canoeist was confronted by a riverside landowner who had strung a wire across the river. Delcour ordered the man to stop or he would sue for trespassing.

In that case, the court ruled the Meramec “public water,” subject to through travel by those who wanted to “wade it or to float down it in boats.” The defendant appealed on the grounds that the Meramec was not a “navigable stream.” While the appeals court agreed on that point, it also reinforced the right of floaters to use the stream and float through. Interestingly, navigable waters had been defined as early as 1874 by the passage of fur traders in canoes.

Where exactly does the public use easement end on rivers? This question has not been completely answered, although the court referred to “public water, and the submerged areas of its channel,” as a “public highway” not subject to trespass. These “submerged areas,” have been defined as those below the “ordinary high water mark,” or high cut bank, which can clearly be seen on many Missouri streams.

This year, a Missouri legislator introduced House Bill 556, which would extend riverside landowners’ rights down to the “low water mark,” effectively placing many if not most gravel bars off limits to floaters and fishermen and greatly stifling recreational opportunities on Missouri’s rivers. The bill would also direct Missouri courts to establish the “navigability” of individual streams. Naturally, this would lead to protracted legal battles for courts that are already overstuffed. It’s a shame it had to come to this. Surely there is a better way to protect the rights of both landowners AND legitimate river users.

 

By: Loring Bullard

Stream Team: Don’t Worry Wilson #5013