The Frugal Fly Rodder

Being smart with your money... without being cheap

Am I really trespassing?

I will admit… I don’t know if the following holds true in all States across this great country or in fact all counties in the state of Ohio. But, the property lines are very clear as to the limits where a property owners land starts and stops.

DISCLAIMER  –  BY NO MEANS IS THIS ARTICLE TO BE SEEN AS PERMISSION TO JUST START WALKING UP AND DOWN A WATER WAY. THERE ARE TIMES THAT A WATERWAY DOES HAVE LAND OWNERS UNDERNEATH. IT IS YOUR RESPONSIBILITY TO RESEARCH YOUR OWN PLANS TO VENTURE OUT ON THE WATER TO MAKE SURE IN FACT THAT YOU WILL BE OR WILL NOT BE TRESPASSING. INVESTIGATING WATER ON YOUR COUNTY AUDITORS MAPS CAN ALSO REVEAL PUBLIC PROPERTIES THAT ARE NOT TYPICALLY THAT WELL KNOWN. 

Recently while in search of access points for places to get into the water and wade, I found something very interesting. The access points I speak of here are just that… places where I can “legally” park my truck and get into the water.

I have sent out letters to property owners where I found their contact info on a county auditors website. I would introduce myself as a responsible fisherman and in fact, identified myself as a fly fisherman. Out of dozens of letters I sent out, I haven’t gotten back one response. I have however, approached land owners (yes, while fishing in the water next to their property) and asked if they minded that I pass through occasionally to fish the section of water that passes by their property. And not one had told me to get off their property, and the reason was… I WAS NOT ACTUALLY ON THEIR PROPERTY!!!

I don’t want to start an argument here; however, facts are facts and property lines are again, very clear in any county auditors records, at least they are in the state of Ohio. 

Let me explain why “some” people, which include land owners and people wanting to walk up and or down a “navigable” stream, creek or river think the water and land underneath is owned by a land owner. That is not always true. However, there seems to be unwritten law where land ownership has been found in favor of the property owner who is “given” water rights from their actual point of ownership which extended out into the water.

A simple way to explain this is, if you have ever owned a home, that has a sidewalk, that may or may not pass through your property (most times not); it is your responsibility, period! Your property pins stop at the sidewalk but you are responsible for it as a public passage. Try not shoveling snow sometime and let someone walking on your sidewalk slip and break their arm or back… if they do, guess who is responsible and guess who gets sued? The land owner!!! The reason is there is a Right-Of-Way or ROW that puts that responsibility on the home or land owners to “allow” passage. The reason municipalities make sure properties extends past these lines is to have ROW’s, so that part of the land is the responsibility of the owners adjacent to it so that “the government” cannot be held responsible.

Now let’s talk about the “navigable” streams, creeks or rivers. In one way, there are areas NOT owned by anyone, not even the county, state or United States Government; however, again, I don’t know how anyone missed this, because according to any county auditor mapping records at least in the state of Ohio, from what I can find through all the maps I have studied, the areas of a map that indicates “No features selected”, is not owned by anyone; however, there is this “given” that an adjacent property to a stream without actual ownership is owned by that property owner to the center of the water.

To see where property lines start and stop, you will need to go to the county auditors website and look up public records along the water you want to fish and find out as to who owns what and where, and to see if it may actually be owner by a local, state or federal park. In the image below, I have taken a section of map and marked it up at to ownership and what comes up as “No features selected” which means it is NOT owned by anyone. The yellow lines indicate a land which is owned by someone, a trustee or a corporation, the green which follow both banks of “this” creek have the label “No features selected” which means no one owns that land.

In section 1 the map shows who the landowner is and their contact information.

In section 2 the results came up “No features selected” which again to me means “NO ONE OWNS THAT GROUND“.

In section 3  again… the map shows who the landowner is and their contact information.

If you don’t feel comfortable with what this article has to offer, (which I couldn’t blame you) call the auditors office in the area you are searching and ask them if the property that has “No features selected” indicated on the map is actually owned by someone. If there is an indication of ownership… YOU WILL NEED PERMISSION… it is that simple. 

Check it out yourself, find the water You like to fish and see if there is a “No features selected” for the water. You may not see it everywhere, but I think you might be surprised. 

The Following is from a reference from Wikipedia: 

United States

The United States recognizes two types of water rights. Although use and overlap varies over time and by state, the western arid states generally follow the doctrine of prior appropriation, but water rights for the eastern states follow riparian law.

Riparian rights

Under riparian law, water is a public good like the air, sunlight, or wildlife. It is not “owned” by the government, state or private individual but is rather included as part of the land over which it falls from the sky or then travels along the surface.

In determining the contours of riparian rights, there is a clear distinction between navigable (public) waters and non-navigable waters. The land below navigable waters is the property of state, and subject to all the public land laws and in most states public trust rights. Navigable waters are treated as public highways with any exclusive riparian right ending at the ordinary high water mark. Like a road, any riparian right is subordinate to the public’s right to travel on the river, but any public right is subject to nuisance laws and the police power of the state. It is not an individual right or liberty interest. Because a finding of navigability establishes state versus federal property, navigability for purposes of riverbed title is a federal question determined under federal law; the states retain residual power to define navigability for the purposes of defining the public trust over water within their borders. A non-navigable stream is synonymous with private property, or jointly-owned property if it serves as a boundary.

The state could choose to divest themselves of title to the stream bed, but the waters and use of the waters remains subject to the Commerce Clause of the United States Constitution which holds an easement or servitude, benefiting the federal government for the purpose of regulating commerce on navigable bodies of water. 

The reasonable use of the water by a riparian owner is subject to the downstream riparian owners ‘riparian right’ to receive waters undiminished in flow and quality. Since all surface waters eventually flow to the public ocean, federal regulatory authority under the Clean Waters Act, like the Clean Air Act, extends beyond only public (navigable) waters to prevent downstream pollution.

States’ involvement

Federal courts have long recognized that state laws establish the extent of the riparian and public right. In the case of navigable waters, title goes to the average low water mark. The Pennsylvania Supreme Court defined it as the “ordinary low water mark, unaffected by drought; that is, the height of the water at ordinary stages.” Land below the low water mark on navigable rivers belongs to the state government in the case of the 13 original states.

Lands between the high and low water marks on navigable rivers are subject to the police powers of the states. In the case of the original 13 states, upon ratification of the US Constitution, title to these submerged lands remained vested in the several states similar to the public or common roads.

As new lands were acquired by the United States, either by purchase or treaty, title to the highways and the beds of all navigable, or tidal, water bodies became vested in the United States unless they had been validly conveyed into private ownership by the former sovereign. During the territorial period, the United States held these title “in trust” for the benefit of the future states that would be carved out of the territory. Each of the states were to come into the Union on an “equal footing” with the original 13 states. Under the equal footing doctrine, territorial states are vested with the same sovereign title rights to navigable submerged lands as the original 13 states. However, during the territorial period, the United States could convey certain of these lands under the limited circumstances of promoting commerce.

Ownership of lands submerged by navigable waters was resolved by Congress passing the Submerged Lands Act, which confirmed state title to the beds of all tidal and navigable bodies of water. While the act conveyed land title to the states, non-navigable stream beds remained treated like dry lands and contiguous to the adjoining estates. Waters subject to the ebb and flow of the tides, even if non-navigable, also passed to the states, but the continued ownership and public use of these tidal/marsh lands are based on state laws.

Full Article Here: https://en.wikipedia.org/wiki/Riparian_water_rights

Updated: June 29, 2018 — 9:09 pm

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