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Harry Styron’s Missouri Stream Law

The law of streams is not just about water, but the things in it, the use of the water itself, the right to withdraw the water and discharge into it, the use of the streambanks, and rights of access.

The legal rules regarding running water must be drawn from a mess of federal and state statutes and the common law.

A helpful resource is the 300-page compilation made in 2000, A Summary of Missouri Water Laws, prepared by Richard Gaffney and Charles Hays, with contributions by William J. Bryan IV and Amy E. Randles, published by the Missouri Department of Natural Resources.

Basic principles

  1. The water in streams belongs to the people of the state.
  2. The wildlife in streams belongs to the people of the state. § 252.030 RSMo. State and federal agencies regulate if, how and when wildlife may be taken from streams.
  3. The concept of navigability is historically important in understanding statutes and case law, but is now of limited use in explaining rights, which are mostly governed by administrative regulations adopted under modern statutes.
  4. Historically, if a stream was navigable it was a public highway, with the state owning the streambed.
  5. Historically, if a stream was not navigable, real estate titles from adjacent land extended from the meander line to the middle thread of the stream, subject to the police power of the state. However, the stream may still be considered by law to be “public waters,” with an easement for fishing and for passage by the public within the stream bed.
  6. No court or government agency determines points of navigability under state or federal law in advance of disputes or whether the waters in a stream are public waters for which the public has a right of passage.
  7. Riparian owners have rights of access to the adjacent stream and rights to take (but not to own) water and gravel from the stream for use on the riparian property.
  8. Federal and state administrative law governs most legal issues regarding streams and their uses, at least in part, except for disputes between neighbors, which is a matter for state courts.

Laws affecting fish and other stream life

By tradition and statute, fish belong to the state, subject to laws that allow lawful capture of game fish and non-game fish, frogs, crayfish and aquatic mammals, such as beaver and muskrat. The law relating to the taking of other forms of life from streams is not developed, probably because our economic system does not value these life forms.

Under traditional English legal principles, embodied in what is called the “common law,” wildlife was owned by the King, but could be possessed by capture. The right to capture was given by the King. This principle of law, with the state taking the place of the King of England, was adopted by the State of Missouri with the rest of the common law, which has been modified over the years by decisions of Missouri’s courts. In the 20th century, federal and state governments began to enact statutes and regulations regarding fish and game and other stream life.

Stream life receives some legal protection through the administration and enforcement of laws regarding pollution, dam-building, mining from streams, modification of streambanks, and protection of wetlands, but little from the common law.

Federal agencies

The U. S. Fish and Wildlife Service, which is a part of the Department of Interior, also enforces federal regulations relating to wildlife, such as migratory birds. The Fish and Wildlife Service also operates the Endangered Species and Wetlands Inventory Programs. In Missouri, the Fish and Wildlife Service operates the Neosho National Fish Hatchery and manages several wetlands and other sites.

The U. S. Army Corps of Engineers also has authority over modification of navigable streams and over modification of wetlands.

Missouri Department of Conservation (MDC)

The Missouri Conservation Commission was established by adding Art. IV, § 40(a) to the Missouri Constitution. The Conservation Commission adopts rules relating to the taking of fish and game, which are administered and enforced by the Missouri Department of Conservation. Section 43(a) to Article IV of the Missouri Constitution was added in 1977, imposing a one-eighth cent sales tax to provide funds to the Conservation Commission for its capital needs and administration of its programs, in addition to revenues from the sale of hunting and fishing licenses. This source of funds, exempt from legislative appropriation, has provided many stream access points.

The Missouri Department of Conservation (MDC) manages the Conservation Commission’s land inventory, stream and lake access points, nature centers, small lakes and wildlife areas, and state conservation areas. The conservation areas include forest prairies and wetlands.

MDC also enforces the Missouri Wildlife Code, with the assistance of county prosecuting attorneys.

Missouri Department of Natural Resources (DNR)

Federal laws relating to protection of air and water allow each state to designate agencies to adopt and enforce regulations that meet federal standards. Congress and the EPA have established standards. The Missouri legislature has created several commissions (including the Clean Water Commission, Safe Drinking Water Commission, Land Reclamation Commission and the Dam and Reservoir Safety Council) to adopt regulations implementing the federal standards. The Missouri Department of Natural Resources is charged with administering and enforcing these regulations.

With respect to streams, the most important programs that DNR administers are the issuance of permits for discharge into streams, grading and clearing, and commercial sand and gravel removal from streams. DNR also attempts to enforce the terms of permits and is represented by the Missouri Attorney General in enforcement actions.

Riparian rights

The rights and duties that go with ownership of land adjacent to a body of water (lake or stream) are referred to generally as riparian rights, which is a common law concept. The scope of riparian rights and applicability of riparian law principles has been almost completely modified by federal and state statutes and regulations.

Riparian right of access

In 1880, the St. Louis Court of Appeals announced that Missouri was one of those states that would follow this rule:

The right of the owner of a lot in a town to the use of the adjoining street is declared by our Supreme Court, in the case just cited, to be as much property as the lot itself, and that it is immaterial whether he owns to the middle of the street or not. So, the right of a riparian proprietor to the flow of the water in front of his lot is as much property as the lot itself, and it is immaterial that he does not own to the middle of the stream.

Myers v. City of St. Louis, 8 Mo. App. 266 (Mo. App. 1880).

Reasonable use rule for diversions

Riparian rights include the right to divert water from natural watercourses on the riparian owner’s property. Missouri law distinguishes the right to divert surface water (rainwater not in channels) from the right to divert water in natural watercourses. A person who causes flooding by obstructing a natural watercourse is strictly liable for damages, regardless of intent or lack of negligence, while the liability of a person who diverts stormwater runoff is determined by application of the reasonable use rule.

Klokkenga v. Carolan, 200 SW3d 144 (Mo.WD 2006), contains a thorough discussion of whether a watercourse is natural. See Dudley Special Road District v. Harrison, 517 SW2d 170 (Mo. App. 1974). A natural watercourse is a stream in a defined channel, though it may flow only intermittently.

The reasonable use rule was adopted by the Missouri Supreme Court in Heins Implement Company v. Missouri Highway & Transportation Commission, 859 SW2d 681 (1993), with the express purpose of getting rid of the common enemy doctrine and the modified common enemy doctrines, which had limited the liability of persons who diverted surface waters to protect their own interests, regardless of the downstream effects. The court summarized the rule as follows:

Perhaps the rule can be stated most simply to impose a duty upon any landowner in the use of his or her land not to needlessly or negligently injure by surface water adjoining lands owned by others, or in the breach thereof to pay for the resulting damages. The greatest virtue of the reasonable use standard is its ability to adapt to any set of circumstances while remaining firmly focused on the equities of the situation.

Right to take water

Missouri, unlike the states west of Missouri, does not allocate the water in streams to particular uses. Unlike riparian owners in these “prior appropriation” states, Missouri’s riparian owners may withdraw water for irrigation or other uses, subject only to the doctrine of reasonable use, which holds that one riparian owner’s use is limited at the point that it unreasonably interferes with the rights of other riparian owners. Reasonableness is a fact question for courts. Section 393.030 RSMo allows withdrawal from non-navigable streams for the purpose of supplying water to any city, town or village.

Riparian uses that have been recognized by Missouri courts include household use, irrigation of crops, livestock watering, and industrial uses. A rancher v. sodbuster dispute, Ripka v. Wansing, 589 SW2d 333 (Mo.SD 1979) gave the Southern District a chance to refer to the factors mentioned in the Restatement of Torts, Second §§ 850-850A) to be considered in determining the reasonableness of riparian uses, as follows:

(a)        the purpose of the use,

(b)       the suitability of the use to the watercourse or lake,

(c)        the economic value of the use,

(d)       the social value of the use,

(e)        the extent and amount of the harm it causes,

(f)        the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,

(g)       the practicality of adjusting the quantity of water used by each proprietor,

(h)       the protection of existing values of water uses, land, investments and enterprises, and

(i)        the justice of requiring the user causing harm to bear the loss.

The State of Missouri does not allocate surface water or groundwater, but makes an effort to monitor the amount of water withdrawn from streams, lakes and underground. In 1983, the legislature created the classification of “major water user,” requiring such users to report their usage to DNR. The definition is found in § 256.400, and applies to “any person, firm, corporation or the state of Missouri, its agencies or corporations and any other political subdivision of this state, their agencies or corporations, with a water source and equipment necessary to withdraw or divert one hundred thousand gallons or more per day from any stream, river, lake, well, spring or other water source.” DNR’s Missouri Water Resources Center in Rolla (573 368-2175) collects the reports, though the rate of compliance with the reporting requirements is fairly low.

Right to discharge into stream

The federal Clean Water Act established the National Pollutant Discharge Elimination System (NPDES), which requires permits for discharge of pollutants. In Missouri, the federal standards are to be enforced by the Clean Water Commission, comprising persons appointed by the governor. The Missouri Department of Natural Resources administers the regulations adopted by the Clean Water Commission. See § 644.052 RSMo. NPDES is a system that allows holders of permits to discharge water having specified amounts of pollutants, such as phosphorus (expressed in parts per million) or milligrams per liter for biological oxygen demand (BOD).

The State of Missouri is obligated under the Clean Water Act to implement the Total Maximum Daily Load Standards, which replaces NPDES. The logic of TMDL is to limit the total quantities of pollutants that can be released into a watershed by all those who discharge into it. Once the TMDL is reached, no additional permits can be issued without reductions from the maximum. The designation of “impaired waters” is a part of the TMDL framework, and the Clean Water Commission is lobbied heavily to minimize the portions of streams that are classified as impaired.

Modification of streambeds and streambanks

Though the right to modify the bed and bank of a non-navigable stream is a riparian right, under the common law, modern regulations may restrict these activities.

Dredging and Filling

The U. S. Army Corps of Engineers controls modification of the streambeds and banks of almost all flowing streams. Dredging, filling streams or wetlands (with rocks, dirt, concrete, etc.), placement of docks, erection of bridges, and building dams is subject to the regulation of the Corps and EPA, under section 404 of the federal Clean Water Act, which also requires a “section 401″ certification from the Missouri Department of Natural Resources.

Construction of small dams

Erection of dams higher than 35 feet requires construction permits from the Missouri Department of Natural Resources, which has a Dam and Reservoir Safety Council to advise it. See Chapter 236 RSMo. Section 252.150 RSMo requires owners of dams to provide for the free passage of fish.

Building of dams over non-navigable streams is a right affirmed by statute. Sections 236.010-236-020 RSMo.

However, obstruction of streams to prevent the free passage of fish is a misdemeanor. Section 252.200 RSMo.

Hydroelectric uses

The Federal Energy Regulatory Commission regulates the use of streams for generation of hydroelectric power. The Hydropower Reform Coalition has prepared information to inform citizens of hydropower licensing issues.

Sand and Gravel Mining and Washing

Riparian owners may take gravel from streams without a permit for their own use, but not to sell. Commercial sand and gravel mining and washing from streams is regulated by the Land Reclamation Commission, a state agency, connected to DNR. Governmental entities are exempt from these regulations.

Commercial sand and gravel operations require permits from the Land Reclamation Commission. No commercial mining is permitted in “outstanding resource waters.”

Restrictions on ATVs and Motorized Vessels

Subsection 304.013.2 RSMo prohibits ATVs from being in streams except when operated by the riparian landowner as follows:

No person shall operate an off-road vehicle within any stream or river in this state, except that off-road vehicles may be operated within waterways which flow within the boundaries of land which an off-road vehicle operator owns, or for agricultural purposes within the boundaries of land which an off-road vehicle operator owns or has permission to be upon, or for the purpose of fording such stream or river of this state at such road crossings as are customary or part of the highway system. All law enforcement officials or peace officers of this state and its political subdivisions or department of conservation agents or department of natural resources park rangers shall enforce the provisions of this subsection within the geographic area of their jurisdiction.

A similar statute applies to “utility vehicles.” Section 304.032.1 RSMo.

Cattle and other livestock in streams

While no one disputes that cattle in streams can be harmful to water quality and stream life, many riparian landowners strenuously object to proposals which would prohibit or limit access of cattle, swine or horses in streams. The Missouri Department of Conservation (MDC) and DNR have attempted through education programs to encourage keeping livestock out of streams and away from erosive streambanks.

Recreational use of streams

A 1954 Missouri Supreme Court case, Elder v. Delcour, 269 SW2d 17 (Mo. 1954), made possible the growth of the recreational canoeing industry, giving the public the right to wade and boat on floatable streams, “for business or pleasure.”Id. at 26. The case also affirmed the right of anyone with a fishing license to fish in a stream, but not to trespass on adjacent land.

The opinion holds that the Meramec River at the point in question is non-navigable, but a public highway. Thus, the public has an easement to travel its waters and submerged streambed and pursue fish. “Since the ownership of the fish in the stream belonged to the state and since respondent was not a trespasser in passing down the stream by boat or by wading, he had the right to fish and to take fish from the stream in a lawful manner.” Id.

State law behavior restrictions directed as behavior on streams

Section 306.220 RSMo requires children under the age of seven to always wear a personal floatation device. Lighting and PFDs for all vessels are described in § 306.100 RSMo.

Section 306.325 RSMo applies to inner tubes, kayaks, and canoes:

1. As used in this section, the following terms mean:

(1) “Navigable waterway”, any navigable river, lake, or other body of water located wholly or partly within this state and used by any vessel;

(2) “Vessel”, any canoe, kayak, or other watercraft which is easily susceptible to swamping, tipping, or rolling, but does not include any houseboat, party barge, runabout, ski boat, bass boat, excursion gambling boat as defined in section 313.800, RSMo, or similar watercraft not easily susceptible to swamping, tipping, or rolling.

2. Any person entering, traveling upon, or otherwise using navigable or nonnavigable waterways by vessel or innertube and transporting foodstuffs or beverages shall:

(1) Use a cooler, icebox, or similar nonglass container, and shall not use, other than containers for substances prescribed by a licensed physician, any glass container for beverages on a vessel within the banks of navigable waterways;

(2) Use a cooler, icebox, or similar nonglass container sealed in a way which prevents the contents from spilling into the water;

(3) Carry and affix to the vessel a container or bag suitable for containing refuse, waste, and trash materials and which is capable of being securely closed;

(4) Transport all refuse, waste, and trash materials to a place in which such materials may be safely and lawfully disposed; and

(5) Shall safely secure any glass containers to protect them from breakage or discharge into any stream.

3. Any person who violates the provisions of this section is guilty of a class C misdemeanor.

The General Assembly is always worried about nudity and drunkenness on Missouri’s streams. Finally, in 2009, section 306.109 RSMo was enacted:

306.109. 1. No person shall possess or use beer bongs or other drinking devices used to consume similar amounts of alcohol on the rivers of this state. As used in this section, the term “beer bong” includes any device that is intended and designed for the rapid consumption or intake of an alcoholic beverage, including but not limited to funnels, tubes, hoses, and modified containers with additional vents.

2. No person shall possess or use any large volume alcohol containers that hold more than four gallons of an alcoholic beverage on the rivers of this state.

3. No person shall possess expanded polypropylene coolers on or within fifty feet of any river of this state, except in developed campgrounds, picnic areas, landings, roads and parking lots located within fifty feet of such rivers. This subsection shall not apply to high density bait containers used solely for such purpose.

4. Any person who violates the provisions of this section is guilty of a class A misdemeanor.

5. The provisions of this section shall not apply to persons on the Mississippi River, Missouri River, or Osage River.

The Missouri Department of Conservation enforces its regulations of vehicles, including bicycles and aircraft, and horses and pets, on all land and waters owned, leased or managed by the Conservation Commission. Section 252.045 RSMo.

Federal regulation for directed at behavior on streams

While the Ozarks National Scenic Riverways (the ONSR includes portions of the Jacks Fork and Current rivers) and the National Wild and Scenic Rivers (NWSR includes a portion of Eleven Point River) are subject to federal controls on river access, licensing of concessionaires, and behavior, the rest of Missouri has enjoyed a less-structured experience. The ONSR is operated by the National Park Service, which is a part of the Department of Interior. The NWSR system is a part of the USDA.

The ONSR regulations are compiled in the “Superintendent’s Compendium” and are claimed to “compliment [sic] and apply in addition to the regulations contained in Parts 1-7 of Title 36 CFR.” See http://www.nps.gov/ozar/parkmgmt/upload/Supt-Compedium09.pdf. Violations may be punished with a fine of up to $5,000 for individuals and $10,000 for organizations and up to six months in prison.

From the 2009 OSNR Superintendent’s Compendium, here are the rules of most interest to people who are likely to get in trouble:

Glass beverage containers

The possession or use of glass beverage containers in caves, on trails or waterways, or within 50 feet of any river or stream in the park is prohibited for public safety and sanitation, except in campgrounds or picnic sites, or in vehicles on roads and parking areas.

Foam coolers

The possession of foam (commonly known as Styrofoam), polypropylene, expanded polypropylene and polystyrene coolers are prohibited on or within 50 feet of the Current and Jacks Fork rivers, except in developed campgrounds, picnic areas, landings, roads and parking lots occurring within the zone of 50 feet. This prohibition includes coolers, ice chests, and containers. High density bait containers, used solely for that purpose, are allowed and are exempt from this regulation.

Alcohol restrictions

The possession or use of any large volume alcohol containers that hold more than one gallon of an alcoholic beverage is prohibited. This includes but is not limited to the following: kegs, quarter kegs, pony kegs, party balls, or similar containers.

The possession or use of beer bongs or other similar volume drinking alcohol devices is prohibited. This includes any object or device that is intended and designed for the rapid consumption/intake of and alcoholic beverage, including but not limited to funnels, tubes, hoses and modified cans with additional vents.

The possession or consumption of any alcoholic substance that is produced in a gelatin form is prohibited.

The above prohibitions apply to portions of the Current River between Baptist Access and the lower landing at Round spring and from Waymeyer to the park boundary of the Van Buren Gap near Raftyard.

On the Jacks Fork River these prohibitions apply to the river between Bluff Hole at Alley and Keaton Campground and from the park boundary east of Eminence to Two Rivers’ lower landing. These prohibitions are enforced in the campgrounds within the park boundary and apply to the above stretches of rivers and campgrounds between Memorial Day Weekend and through Labor Day.

Dry Ice

The possession and/or use of dry ice anywhere within the park boundary are prohibited, with the exception of use for long term camping of more than two nights. Dry ice is defined as a solidified form of carbon dioxide.

Jumping and/or diving

The jumping or diving from cliffs, high banks or rocks, and trees into the Current and Jacks Fork Rivers, springs or spring branches is prohibited. The installation or use of rope swings or other similar devices from stationary objects, such as trees, with the purpose of descending one from land to water is also prohibited.

Mardi Gras beads

The distribution of Mardi Gras bead necklaces or similar paraphernalia intended to cause behavior associated with disorderly conduct within the Riverways is prohibited. Such unwanted behavior includes but is not limited to fighting, solicitation of nudity, obscene language and creating a public nuisance.

Mardi Gras necklaces are defined as necklaces that consist of multi-colored beads that are made from plastic, aluminum or similar material, regardless of length or size of the necklace.

Geocaching

Geocaching within the boundaries of Ozark National Scenic Riverways is prohibited.

Paint-balling

The possession and/or use of a paint-ball gun, or similar device, are prohibited.

Technical Climbing/rappelling

The following areas are closed to technical climbing and rappelling:

  • Areas within the park that are designated as state natural areas and rock faces above caves, springs, and spring branches and trails

The installation and/or use of any permanent bolt, anchor, or chipped rock hold is prohibited throughout the Riverways.

Segways

Gyroscopic stabilized mobility devices, commonly referred to as Segways, shall be considered as a motorized wheelchair when operated by persons with disabilities and may be operated throughout Ozark National Scenic Riverways on trails and paths open to wheelchair use. All other use of gyroscopic stabilized mobility devices is prohibited.

Seekers of subtler pleasures may be interested in other regulations found in the Superintendent’s Compendium. Gathering by hand of small amounts of edible nuts, fruits and berries and mushrooms for onsite consumption is permitted, but not tapping of maple trees or collection of wildflowers. Hunting and trapping are permitted in much of the ONSR more than 300 feet from buildings and other improvements, but not in the former state park boundaries at Alley Spring, Big Spring and Round Spring.

Restrictions on ATVs and Motorized Vessels

Subsection 304.013.2 RSMo prohibits ATVs from being in streams except when operated by the riparian landowner as follows:

No person shall operate an off-road vehicle within any stream or river in this state, except that off-road vehicles may be operated within waterways which flow within the boundaries of land which an off-road vehicle operator owns, or for agricultural purposes within the boundaries of land which an off-road vehicle operator owns or has permission to be upon, or for the purpose of fording such stream or river of this state at such road crossings as are customary or part of the highway system. All law enforcement officials or peace officers of this state and its political subdivisions or department of conservation agents or department of natural resources park rangers shall enforce the provisions of this subsection within the geographic area of their jurisdiction.

A similar statute applies to “utility vehicles.” Section 304.032.1 RSMo.

ATVs are prohibited on paved roads within the ONSR, but permitted only for ingress and egress to reach roads where they are permitted. Inboards and personal watercraft are prohibited. Motorized vessels regulations in the ONSR are permitted as follows:

  1. Above the Big Spring landing on the Current River and below Alley Spring on the Jacks Fork River with an outboard motor not to exceed 40 horsepower.
  2. Above Round Spring on the Current River and above Alley Spring (at the Hwy 106 bridge) on the Jacks Fork River with an outboard motor not to exceed 25 horsepower.
  3. Above Akers Ferry on the Current River from May 1 to September 15 with an outboard motor not to exceed 10 horsepower.
  4. Above Bay Creek on the Jacks Fork River from March 1 to the Saturday before Memorial Day with an outboard motor not to exceed 10 horsepower.

In the NWSR, outboards up to 25 horsepower are permitted.

 

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56 responses »

  1. Steve Womack

    Mr. Styron, I found your summary of Mo. Law’s Relating to Streams very interesting and useful as it relates to Bull Creek and Big Rock. I must say that after reviewing the Elder vs. Delcour decision from your blog and another source and the Mo. Conservation Commission’s own publication on riparian land use based on the same court decision, I am puzzled. The language of the court decision is clear. The normal stages of Bull Creek are clear to anyone who knows it. Blansit road provides public access to the creek and Big Rock swimming hole. I do not understand why the public is putting up with a few people riding rough shod over their rightful and lawful use of a public resource. I understand the law enforcement problem and the landowners rights to peace. That is more than balanced, however, by the public’s right to use an exceptional and historical recreation spot.
    If a man commits a crime on a highway, they punish him for the crime. They do not close the highway. The answer to this situation is better law enforcement and/or limited/controlled public access. Taney Co. can afford it and it is the right thing to do for all parties concerned. The present solution is quite clearly inconsistent with Elder Vs. Delcour.
    I really appreciate your help with this situation. I value and have been a little enlightened by your perspective. Just for the record I am a riparian property owner in Taney Co. and have been since 1992. I have 48 acres on Swan Creek.

    Reply
  2. “Hunting and trapping are permitted within the former state park boundaries at Alley Spring, Big Spring and Round Spring.”

    Are you sure, Harry? It is my understanding that hunting and trapping are permitted in Riverways EXCEPT within these boundaries, and other developed public use areas such as Akers, Pulltite, Powdermill (Owls Bend) and other highly populated areas in the park.

    Guns, though, may be carried anywhere under the provisions of state statues, including concealed carry, except into park buildings, per federal legislation passed with credit card reform earlier this year.

    Also, Riverways does prohibit styrofoam and expanded polystyrene containers, but has no specific regulations re polypropylene or expanded polypropylene items, which was a chemical mistake of the Missouri legislature last year in attempting to mimic the Riverways rules. It is my understanding that no enforcement agency is enforcing the state polypropylene rule…last year, the Water Patrol issued a statement that they would not enforce citing people for having Tupperware, or polypro long underwear, or ski rope on the river as long as they were not engaged in littering with it. Expanded polypropylene does exist, (think collapsable, foldable and reusable plastic lunch bags) but it mostly has industrial and not consumer uses, and is not made into standalone coolers.

    Legislation to correct the wording of the misinformed statue (change polypropylene to polystyrene) was introduced in 2010 both the House and the Senate, but I find no evidence that it passed, or found its way into another omnibus bill anywhere.

    Reply
  3. Hello! I have an odd question to ask you. With the price of gold hovering at $1300/oz., what are the laws governing recreational gold prospecting on Missouri creeks and rivers? I have developed a deep interest in panning and sluicing these streams but find little to stay legal with this new venture. While little gold has been found in MO, this makes me even more dedicated! What are the laws governing this activity? State, private and Federal land? Please advise! You may see this question more in the future with gold at the price it is.
    Thank you!
    DTC

    Reply
    • Any mining requires a permit from DNR. Any construction in a stream, for a sluice, would require Corps of Engineers approval. A mineral lease from the riparian landowner would also be required.

    • This is an old post, but this may still be of interest. It is my understanding that in Missouri recreational gold panning falls under rockhounding and personal use rock and mineral collecting. Tools used are resricted to hand tools, gold pan, sluce and digging device for stream beds. Dredging falls under sand and gravel mining and a permit is required. As for land use, only rocks, Minerals and artifacts on the surface may be collected. On private land, only the permission of the landowner is needed. I live in Missouri and pan glacial till for gold. It is very good practice panning for gold and gems. Finding gold in all the streams north of the Missouri river, but don’t expect to strike it rich. The largest nugget I have found weighed just under a gram and at todays gold prices at $1500.00 per troy ounce its worth around $40.00.

  4. Pingback: Are You Trespassing While Fishing in Missouri’s Streams, Creeks and Rivers? « Ozarks Fishin'

  5. I was wondering if you had any information regarding camping on creek beds. I understand that if I am in the water i am not trespassing, but what about the rock beds when the streams are low?

    Reply
    • Camping on gravel bars is one of the great joys of life in the Ozarks. But if you’re high enough to avoid the risk of a flash flood, you may be outside the zone where you can be sure you’re not trespassing.

      The most important rule is to be inconspicuous. A small quiet group with a small fire is less likely to be noticed, and even a watchful landowner may choose to leave you alone. A large, noisy group with a big fire, guns, fireworks, and loud music will not be welcome.

  6. I would like to ask a question. Our neighbor has built a low water bridge out of concrete and has moved ALOT of gravel widening the area to try to make it shallower near it. We had a lot of flooding this year, we are downstream from him, our erosion has increased 1000% so much we fear losing much of our land at a curve in the stream. We have had ALOT of gravel and much silt and sand deposited that our deeper swim and fishing areas are much shallower. is there anything that can be done to prevent this from happening more? Is our neighbor “breaking the law”? What do you recommend we do about this?

    Reply
  7. How do we stop a neighbor from moving gravel around the stream? it is causing problems for us as in major erosion and making our waters very shallow by depositing LARGE amounts of gravel, silt and sand.

    Reply
    • You need to talk to an attorney who practices law in your county.

    • I recently made a canoe float down Shoal Creek in Southwest, Missouri. A riparian owner of a substantial stretch of the creek had purple paint down both sides of the creek and Posted signs posted informing canoeists to “Stay in boat”. I put in and took out at MDC access points. It was my second float down this stretch and I had my family with me on a triple digit day. We decided to cool off in the river when the landowner showed up and demanded we get back in our boats. I remained polite and made sure I didn’t say or do anything that could be taken as a threat, but I informed the landowner we were within our legal rights to be in the water, and added we would be respectful of the property. The canoes were resting on a gravel bar well below normal stage of the creek and we were all in the water. The landowner threatened to call the Sheriff and I responded that such an action on their part would really appreciated since I didn’t have my cell phone with me. The landowner took a few pictures and remained on the bank. After we had cooled off, we continued on down the creek. I am certain I was within my legal rights to remain in the creek, However; if the Sheriff would have showed up and made a report of the incident, would I have had any grounds to counter with a harrassment complaint?

    • My purpose in creating and maintaining this blog is to provide general information. For legal advice about a specific situation, you need to consult a lawyer in your community.

      In Missouri, a statute defines harassment as a misdemeanor. A discussion, even a heated one, is unlikely to have all the elements of the statute. It’s even more unlikely that a law enforcement officer would make an arrest or that a prosecuting attorney would file charges, unless there was a serious threat of bodily injury.

      Landowners have the right to express themselves and to protect their land and property. Just because you and the landowner disagree doesn’t mean that law enforcement or the courts should be involved. The landowner’s actions that you describe probably were a reaction to a bad experience with boaters.

  8. I totally agree with your assessment and didn’t mean to imply I would actually seek charges. Just wanted verification that I was within my legal rights to swim and cool off in the creek and that I would have no cause for concern in the event the Sheriff’s Department had shown up , The exchange with the landowner was never heated in any way. Thanks for the information you have put out.

    Reply
    • The purple paint man is currently pressing charges against me. He harasses everyone, and believes he owns the creek.

  9. How does one find information on what sections of a creek is considered navigable or non-navigable? What agency determines these catagories? Would greatly appreciate your info as I own land with a small creek going thru it. Despite this creek being a losing stream, I still have trespassers claiming they have the “right” to be in the creekbed. Any info would be greatly appreciated, as am getting really tired of this situation!

    Reply
    • Stephanie,
      No agency in MIssouri makes a determination of whether a creek is navigable, which means that the only way you can find out is to have a judge decide in the context of a lawsuit, such as a lawsuit for trespass.

      Unless you can show damages from the trespass, you will not get to the point of the judge having to make the determination of navigibility. You should consult a lawyer in your community.

  10. I like Stephanie’s question and am wondering the same thing. Any info you can give will be greatly appreciated.

    Reply
  11. I am going to the Eleven point river this weekend. How are the concealed weapons law on the river camping? Thanks

    Reply
    • I don’t answer questions about individual circumstances on this blog. You need to talk to the Forest Service office that deals with the Eleven Point about the current rules.

  12. juanita foster on the james river

    enjoyed the info you have given. usually the norm is 1 bad for every 9 good UNLESS you own and live on a river that canoeing businesses make a living from. by the time they get to my place they are falling down drunk, loud bad words, fighting and arguing, half naked, sexually out of control and don’t care if they offend any one else. my home is close enough that i can stand in my front yard and have a conversation with any one on gravel bar. they think my gravel bar is a public restroom and don’t cover the waste or paper. they drop their drawers no matter who is sitting in my yard–men as well as women. complained to canoe rental and was told not their problem=renters signed a paper absolving canoe business from any responsibilty of their actions. this was after a large group attacked members of my family when they were told to leave so my grands and greatgrands would not see what was going on between 2 gay men standing in the river. they had pulled their canoes on my gravel bar way past tresspassing. i worked very hard to pay for a place on the river for my family and myself to enjoy.but now the week-ends are hell for us. oh-i do get to shavel the poop and paper and pick up the trash so when my grands and greatgrands do go down they will stay healthy and safe from injury. glad i live in america so i have landowners rights.and yes i have called law enforcement but prosc atty will not file charges. thanks for letting me tell the other side juanita

    Reply
  13. I’m going on a canoe trip down current river in a few weeks. This is the third time I’ve been and I have always thought guns (handguns to be specific) were not permitted. I personally feel more comfortable having mine. Could you help clarify?

    Reply
  14. I own both sides of a creek…the creek is only navigable only thru very wet season, and sketchy at best…every summer we have people camping , drinking, trashing, walking on our land even driving thru it at times…we do not live there so when we do go there, ask these people to leave, it resorts calling police, and ask them to leave…this time the police and conservation said these people are not trespassing and can in fact go on gravel bar pitch tents…and have rights to land that we always have been told is private property…this is panther creek in webster co. The conservation dept called in reply to the police call and reinforced we have no right to ask these very drunk people with small children camping on the gravel bars where water is not part of its flow even when its navigable, and in fact its a gray area of what the land owner actually can consider as their legal private property..yet told us we could mark private property with no trespassing. ??? what is my legal rights to this situation? We asked conservation to come show us where our private property is so we can mark it and got told he could not do this again gray area…he also said to clarify this situation we need to take it to supreme courts because its a gray area…all I kept hearing is “I am not an attorney and this is a gray area….” can you help clarify my rights to what I own?

    Reply
    • If you want legal advice, you need to hire a lawyer. On this blog I provide general information, not legal advice that is based on the facts of particular situations.

  15. juanita foster on the james river

    i cked 4 times with conservation and was told my private property starts where the vegs starts growing. i have brush small trees and grass. i marked along this growth on the side of river. so far this is working.

    Reply
    • The Missouri Department of Conservation employees are trying to be helpful by using a rule of thumb (where the vegetation starts). This is just a rule of thumb, not law.

  16. juanita foster on the james river

    True, but there is,at this time, no concrete law either. landowners have got to have some way to protect our property. So far everything is a rule of thumb. One rule of thumb is as good as another. My house has been under water 3 times. If you go by the high water rule of thumb anyone could enter my house. right now the james is so low a baby could crawl across it. So if you go by the low water rule of thumb no one could get out of their boat or canoe. Only where the river channel runs constantly should be public. Grass, brush, tress normally only grow where there is permanent dry land.

    I have planted part of my garden on the gravel bar in front of my house. So there is earth there also. Actually it would be nice if the law was floaters could not get out of the water. That would simplify everything. Surely too simple for government mentality.

    Reply
    • Juanita,
      I agree that having better rules would help. That is a job for the legislature, rather than the courts.

      I don’t believe the rule of thumb in Missouri is that the boundary of the public right to be on streams is the highest level that the water has reached during flood stage, but the top of the bank.

      If floaters were prohibited from getting out of the water, we’d all might see more “floaters,” which would be an ugly sight.

    • Not ALL boaters are loud and obsean.Some of us do care about property owners rights AND respect them.Some of us have families with children and we teach them to comply and RESPECT Missouri’s Waterway Laws.Your statment makes ALL BOATERS seem like delequents.When infact we are not,we are people like you.We want peace and quiet on water ways too,so we can enjoy Missouri’s flora and fauna.My point is ALL BOATERS ARE NOT BAD.Thank You for your time and have a nice day.

  17. juanita foster on the james river

    how can it be the top of the bank. i have a gravel bar that is approx 200 ft wide and 1000 ft long. the river only flows across during high water or flood, this gravel bar joins my front yard. this gravel bar was created by the illegal moving of the river channel. i am working with corp of eng and dnr to move it back to original channel. in the meantime this is dry land consisting of gravel. there is no bank til you get 150 from my front door. the owner of james river outfitters laid the trees across the river 12 yrs ago so as to move the river futher from his campground. i reported it 12 yrs ago but no one would do any thing about it. this is now causing the numberous floods we have had in past 3 yrs. finally, last yr, i got fema, national weather service,coe,tom martin {emergency management-stone county} down here at same time to see the results. it was then decided to dredge the river and move channel back.

    Reply
    • Juanita,
      Rivers and streams move around, which is one of the challenges of trying to precisely define their boundaries. When people deliberately change the course of a stream, or change the floodplain, other peoples’ properties are affected.

      I want to caution you and others about posting information about your own situations in the comments to this or other websites and blogs. Your words can be used against you in litigation or otherwise. If you need legal advice, you need to obtain it in such a way that you can reasonably expect what you say to be confidential.

  18. O.J. Mendoza

    Harry, interesting reading material. My questions. Considering Louisiana Law under reparian rights or other do I need a permit to dredge/deepen to a 5 feet deep X 20 feet wide “trench” across the bank of my property which fronts “non-navigable” Bayou Rapides in Rapides Parish near Alexandria, LA.?

    Reply
  19. Harry, interesting readingmaterial. My question to you. Condidering Louisiana Law under Reparian Rights or other do I need a permit to dredge/deepen to a 5 feet deep X 20 feet wide “trench” across the bank of my property which fronts “non-navigable Bayou Rapides in Rapides Parish near Alexandria, LA.?

    Reply
  20. “The possession or consumption of any alcoholic substance that is produced in a gelatin form is prohibited.”- Just curious as to why this is?

    Reply
    • Collete,
      You may know that “jello shots” are a mix of vodka or rum and Jello, which can be ingested without the burning that would otherwise accompany taking a shot of straight liquor. So it’s a way to get drunk fast. Complaints from sober floaters and outfitters may have led to the legislature banning this form of alcohol delivery.

  21. My neighbor and I own adjoining property that has a creek that seperates our property line in Norhern Missouri. It is titled that we each own to the centerline of our side of creek channel.The creek channel runs East and West. I own the North half and he owns the South half of the centerline of the creek channel. . Many years before either of us purchased or properties the creek channel shifted South about 2 acres onto his land.

    Missouri DNR page states:

    “The stream in my back yard is my property line. The stream is eroding part of my
    property, and filling another part of my property, as it runs along. What does this do to
    my property line?”

    “If your property title is based on the location of the stream, then your property line changes overtime as the path of the stream changes. If your property line is based on measured survey
    designations, then the location of the stream is irrelevant to your property boundary.”

    Can you tell me if this is accurate and where is the Missouri statute that varifies this. Thanks

    Reply
  22. My question? Since the creek channel moved South about 2 acres onto his property many years before we both purchased our properties and each of our title work states that we each own to the centerline of our own side of the creek does our property line change according to the creek?

    Reply
    • The way to get a legal opinion is to hire a lawyer in your community to give an opinion based on the documented facts of the situation and a review of statutory and case law. I do not give legal advice other than to my clients. Asking a question on this blog does not make you a client.

      With respect to the shifting of streams that define property laws, courts sometimes apply the doctrines of accretion and avulsion, which you can Google. In short, the gradual shifting of a stream is called accretion, and the property line moves with the gradual shift. Avulsion pertain to a sudden shift, and if the court finds that shift was sudden, the property line would remain where it was before the sudden shift.

      Adverse possession may play a part also.

  23. Most interesting blog! Is it safe to assume that riparian landowners also fall under the same container and cooler restrictions if they hand-carry these items along the streams running thru properties they own?

    Reply
  24. So, I called MDC and asked if I could access streams from the bridges which was answered “Yes”. I park and access from a bridge and wade in what is partly non-navigable and up to a navigable stretch which is floatable. My concern and from reading this is that I have the right to access a non-navigable stream and wade in it and am not therefore trespassing if I am not leaving the stream bed and walking into vegetation or the high water mark. And I ask because one of the property owners recently put a fence out to the middle of the stream and another has put a fence out about 3/4 of the way across the stream bed to the point of the low water flow during summer or drought. it would seem that I am not breaking the law??

    Reply
    • Only the legislature or the court can determine whether a stretch of stream is navigable, in the legal sense. Obtaining consent of riparian landowners is the safest course, if you wish to wade small streams.

  25. Pingback: Shooting on a Meramec gravel bar draws attention to uncertain property rights | Ozarks Law & Economy

  26. Interesting blog. I am a past president of the Missouri Whitewater Association , and as such, have been involved in many access and floating problems throughout the state. I have a question concerning Elder v. Delcour. The way I read it, the floater has a right to the use of the stream up to the ‘normal’ (emphasis on normal, not flood) high water mark. This high water mark usually encompasses most gravel bars. Is this right or do I misunderstand it?
    thanks.

    Reply
    • The most useful rule that I glean from Elder v. Delcour is that a stream does not have to be navigable to be open to the public for passage.

      In addition, this language is important: “…in traveling the course of the stream by canoe or wading, respondent was not a trespasser…” Rather than make reference to high banks, the court says the “course of the stream” is public. Does the course of stream include most gravel bars? Does canoeing involve portaging? I think most people would say yes, and the court mentions that the landowner did not challenge the part of the trial court’s opinion that affirmed the right to travel on the adjacent property to get around an obstruction.

      Not all gravel bars are close to the water, particularly during times of low flow. Because of the constant shifting of streams within their channels, and the less frequent cut-offs of meanders, some gravel bars may be so distant from the water that a traveler would have no reason to be on them.

      The court is also referring to traveling, not permanently occupying the course of the stream. Elsewhere in Elder v. Delcour, the court frames the question before it as whether “the water area of the stream was a public highway and so subject to an easement for public travel by boat and wading.”

      Near the end of the opinion, the court refers to a Wisconsin case that held that there is no trespass if the boater stays “within the banks,” but the use of the terms “high water mark” and “high bank” aren’t mentioned.

      The Elder v. Delcour opinion discusses the right to pursue fish, pointing out that one of the alleged trespassers held a fishing license, giving him the right to pursue fish. The opinion does not get into the question of whether a licensed trapper could walk along the creek to run a legal trap line for beaver, mink and muskrat. The opinion explicitly declines to rule on the question of whether fishing from the bank was legal.

      I don’t see anything in the opinion that addresses the term “high banks” or “high water mark.”

  27. Thanks for your quick reply.

    Reply
  28. Due to rain water from the road causing erosion down an embankment, this state of Missouri highway Dept dug up dirt and riock from the stream under the bridge and used it to fill in the erosion. They also left big piles of dirt and rock in the stream, which slows down the water, they also dug up a bank and did not seed, spread hay, or net to secure the rock and dirt on the embankment as well as stream bank. I cannot get a response from MODOT orDNR to address this problem. I even wrote to Corps of Engineers. The state didn’t bring in their own gravel. It is muddy, the flow of the water is impeded. Iris a mess. Who can help fix the problem? I have not heard back from any oftne gov, agencies?

    Reply
    • Rhonda,
      Without knowing where you are in Missouri and the specific location of the bridge, I don’t know where to direct you. Obviously, MODOT can’t do its work to the satisfaction of everyone, but still needs to work responsibly.

  29. I live in Eminence, the creek is Town Creek. The bridge is on Highway 19 just south of town. The recent rain did clear out the piles of dirt in the stream and caused some erosion on the stream bank that was bulldozed. In the past the DNR asked that the factory upstream that dug up this same stream bed to put straw down. MODOT should do the same. Are there laws when the state won’t even follow them. My complaint is not about road repair, it is about erosion.

    Reply
  30. DNR came out, MODOT replied through my rep. Equipment broke and work not finished. So we wait.

    Reply
  31. Work almost completed by MODOT, looks 100%. Better

    Reply

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