by Harry Styron, Styron & Shilling, copyright 2009
(for more depth and a more technical discussion of legal aspects of Missouri stream law, see this page.)
What’s a creek to you? It could be a place to fish, a source of drinking water for livestock or people, a good land boundary, a hazard for children, a place to float a canoe, a place to dump, a source of data for scientific research, a scene for a painting or photograph, or an opportunity to wash a sweaty face or cool one’s heels.
Whose creek is it? What can you do with it? Can you picnic or camp on the gravel bar?
If you’re a landowner, you may be justifiably angry about the noise and trash left by visitors and frustrated about your inability to do anything about it. And what if they get hurt on your property? Can they sue you?
The mesh of federal and state agencies involved in the control of Missouri’s streams is bewildering. Understandably, people are confused about the laws relating to streams.
This article does not cover flood insurance, FEMA programs, and building regulations. Water law in states west of Missouri generally follows a different set of legal rules.
Here are a few legal rules that may be helpful regarding creeks in Missouri.
The water in the creek, and the life in it, belongs to the people of the state. State and federal governments have made laws and adopted regulations regarding the rights to take the water and the fish and other animals in it and the rights to put things in it.
The land under the creek belongs to the person named as the owner in the recorded deed. However, the land under navigable streams (such as the Missouri and Mississippi Rivers, the Osage River, the White River and only a few others) is owned by the government.
The landowner controls the right to access the creek from the bank, but any person has a right to move upstream or downstream in the water, according to the Missouri Supreme Court in the 1954 case Elder v. Delcour, even if the creek is non-navigable. In some cases, the federal government has obtained an easement to allow recreational users the right to be on the streambanks, such as in the Ozark National Scenic Riverways (parts of the Jacks Fork and Current) and the National Wild and Scenic Rivers system (part of the Eleven Point).
Missouri law provides that a landowner who charges no fee for recreational land use owes no duty of care and has no obligation to warn recreational users of the landowner’s property “with respect to any natural or artificial condition, structure, or personal property thereon.” By providing an access point to a stream under a state-sponsored program, such as granting an easement for the access point to the Missouri Conservation Commission, the landowner is not assuming any liability to the users, under another statute. Nor is a landowner liable to a trespasser who is injured on the landowner’s property if the trespasser is “substantially impaired or under the influence of a controlled substance” unless the landowner’s “willful or wanton conduct” is the cause of the injury, under another statute.
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. Erection of dams higher than 35 feet requires construction permits from the Missouri Department of Natural Resources.
The Corps also maintains the navigation channels on the Missouri and Mississippi rivers.
A person who owns the streambank and the streambed (called a “riparian owner”) has the right to take water from the stream for use on the riparian property, such as to fill a stocktank or irrigate crops.
The riparian right to take water is a “correlative right,” which essentially means that the use must be reasonable and not done in such a way as to deprive the rights of other ripiarian owners from exercising their rights. In other words, one riparian owner may not take so much water that other owners can’t take water also. In states west of Missouri, taking water from streams is subject to other legal rules, generally based on the concept of prior appropriation and allocation systems administered by state water resources boards and regional water districts. As the demand for water increases with respect to the supply, the riparian rights system of allocation will become increasingly inadequate.
For some large streams with watersheds in multiple states, state-to-state agreements (often called “compacts”) govern some aspects of the rights to streams.
The federal Clean Water Act generally banned the contamination of streams without permits and authorized the Environmental Protection Agency (EPA) to adopt rules establishing discharge limits for various kinds of pollutants. The administration of the Clean Water Act rules has been delegated in part to agencies in each state. In Missouri, the Missouri Clean Water Commission was established to adopt rules that comply with the EPA standards. The Missouri Department of Natural Resources is a state agency which is given the duty by the Missouri legislature of administering and enforcing the Clean Water Commission’s rules.
The Missouri Department of Natural Resources operates Missouri’s state parks, which include several large springs and nice creeks.
The Missouri Conservation Commission was established when the voters, in 1936, amended 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. The Missouri Constitution also was amended, effective in 1977, to impose 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 manages the Conservation Commission’s land acquisitions, several nature centers, several small lakes and wildlife areas, and state conservation areas, including forests, prairies and wetlands.
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 in Missouri and elsewhere.
The Ozark National Scenic Riverways is a branch of the National Park Service, which is a part of the U. S. Department of the Interior. Portions of the Jacks Fork and the Current rivers are in the Ozark National Scenic Riverways.
A part of the Eleven Point is in the federal National Wild and Scenic Rivers program, which is operated in Missouri by another federal agency, the U. S. Forest Service, which is a part of the Department of Agriculture.
So therein lies the gray area of ATVs or 4-wheelers…I don’t have anything against them–I actually own three. But they do ride up and down our creek quite regularly. So technically we own the land beneath the water, but the water is navigatible to all Missourians. However, ATVs are technically land vehicles…hence the gray area. Is there any ruling on this? I only have a feeling about this because they disturb the bluegill nesting area that has only recently returned to the creek, along with the few fish that have only recently returned…
Patty, ATV use in streams isn’t a “gray area” of law. Section 304-013 RSMo prohibits ATV use in streams other than when operated by the landowner. The violation is a misdemeanor and the county prosecutor and state attorney general are authorized to obtain injunctions from a court to bring a stop to this practice.
Getting a county deputy, a highway patrolman or a Department of Conservation agent to write the ticket may be difficult. Having photographs would help.
Not sure if I’ll get a reply, but worth a shot.
A place called Browns Conoe Rental has been open for years. The past year they started to charge $5.00 for parking on their sandbar.
Now this year they are charging people who are sitting out in the water or on the shore line but don’t park on their sandbar. She said she owns the water and land, the road, and bridge.
It’s right across from the Missouri Conservation. You can park on the land for free there… but
the property has been handed down to the daughter of the sweet older lady who never charged people.
My questions are;
One are they able to charge anyone for not parking on their land?
Also, doesn’t charging people open a bigger issue if someone got hurt on their land?
In Missouri isn’t there a easement on water property, so people can exit the water safely if they are in danger.?
Kursten, you get the same reply as most people. I don’t give legal advice about specific situations on this blog. You’ll have to hire a lawyer for that. My general opinions on some of the issues you raise are found in my posts. I’ve been to this place on the Huzzah, which is one of my favorite streams in Missouri.
I know glass bottles are a no-no
What about coolers? Are they out?
Can a person get arrested for being a drunk passenger in a canoe?
I suppose that anything illegal on land is illegal on a river.
My friend wanted me to ask these questions.
I always thought that a sunburned drunk was punishment enough.
At this point, it is not illegal for persons who are not minors to possess alcoholic beverages on streams. The Ozark National Scenic Riverways (Jacks Fork and Current) and National Wild and Scenic Rivers (Eleven Point) prohibit glass containers and require that mesh litter bags be carried in every canoe.
To answer your specific question, it is not a crime, under section 574.075 RSMo, to be a drunk passenger in a canoe, unless the canoe is in a school, church, or courthouse. Many towns have ordinances about public drunkenness that include places other than schools and churches, so it’s wise to sober up before you pass through Noel, Galena, Eminence or Van Buren, especially if you’re going to get in a car and drive.
There is an exception in section 574.075 regarding courthouses: if the public drunkenness occurs at a law library association meeting held in a courthouse, it is not illegal (I am not making this up). The lawbook lobby must have worked hard for this exception, so that they could more easily sell books at law library association “meetings” to lawyers and judges, who are typically unaccustomed to strong drink.
Canoe outfitters can make their own rules about the use of their canoes, and I wouldn’t blame them if they did.
To my knowledge (without research), I believe coolers are still permitted, though they may not be used to store contraband.
Possession of marijuana is not legal anywhere in the state, under federal and state laws (I realize that today is 4-20, so you’re apparently making some kind of a joke by asking this question: ha ha).
“Peace disturbance,” as defined by section 574.010 RSMo, encompasses fighting and obstructing pedestrian and vehicular traffic, making loud noises, emitting offensive odors and other antisocial behavior of a type that is often associated with drunkenness, regardless of whether the behavior occurs on a stream or not.
Each year, the bills are introduced in the Missouri General Assembly to regulate lewd and loutish behavior on streams. As I’ve gotten older, I have come to detest such behavior, though I may have once enjoyed it. I don’t know what is wrong with kids today.
My brother Emery’s website http://www.riverhillstraveler.com probably has something about proposed legislation.
Thanks, Harry. Excellent, readable summary of recreational stream water law, and how the various government agencies impact water. DNR water law is pretty complex, since the Water Resources associated with Geology and Land Survey deals with measurement and supply issues (the people who keep the Dakotas from keeping the Missouri River and who are called when a pipe breaks, and Maramec Spring turns milk with ammonia; and the Division of Environmental Quality deals with regulation of pollution, and has to work with both Public Health (on potable water supplies for people) and MDC for animals.
As I understand it, it is still legal for anyone (not just the owner) to cross a creek with an ATV at a designated ford which is used by other vehicles, just not to do so repeatedly for recreational purposes, nor to run the creek or stream longitudinally (for which there is no reasonable reason, anyway). But it is still done…
The provisions of SB2 -2009, extending Riverways style prohibitions on items taken on or near rivers, have been buried into SB 261, aka the Senate Omnibus Crime bill. At this time, that bill is still undergoing perfection and has been scheduled for informal Senate debate (as of yesterday.) Glass containers (with minor exceptions for medicines which must be kept in glass, like some forms of insulin) already prohibited on all streams of the state (except the Mississippi, Missouri and Osage) and within 50 feet of the water near a beach. I’ve been decanting wine bottles for years into plastic…can guarantee you I wouldn’t do this voluntarily, because we always haul more trash out than most people, and leave none which isn’t organic. It irks me that the beer lobby won that one….
Only the Riverways currently have a restriction (not prohibition) on excessively sized coolers (like 48-52 cu ft) on the rivers. They will question you about them. For more info on their federal regs, see http://www.nps.gov/ozar/parkmgmt/rowdiness.htm. They also confiscate Mardi Gras and similar beads, because the fish choke on them after they rot from the strings. (I’m interested in this topic anyway, and I’m bird-dogging this for the Traveler, too.)
But my question has always been: who controls the transient creek rocks? They aren’t part of the land…they migrated from somewhere else and with luck will end up in Louisiana. They aren’t alive, so MDC has no jurisdiction. Both MDC and DNR have some jurisdiction on the water…DNR to ensure that it keeps flowing, and polluters are regulated; MDC because they consider it habitat. The “Stream Team” bunch are a multiagency group, though MDC has done most because it traditionally has had the funding. The Army Corps and DNR both regulate graveling and sand operations…there is a state board which oversees this, sort of like both Army Corps and DNR-Dam Safety divvy up the dam responsibilities, depending on what is being dammed, where and why. I’ve asked park people (you cannot remove an Elephant Rock, but I have yet to see any kid arrested for hauling home a bucket of river chert.)
I would like very much to be the creek rock czar if the position is open. I have 40 years of experience picking them up. *|:-)
Thanks for the info about restrictions on cooler size and Mardi Gras beads in the Ozark National Scenic Riverways.
Section 304-013 prohibits the operation of ATVs on Missouri highways. A highway is any road that is open to the public and maintained by the government. Cities and counties are authorized to sell permits to licensed drivers for ATV use on county roads and city streets. Of course, the number of ATVs makes it unlikely that law enforcement personnel could closely enforce the ATV regulations.
Your question about ownership of “transient creek rocks” brings several things to mind.
Creek rocks are transient in a geological sense, because they are the products of erosion and transport. In a legal sense, they are a part of the land and belong to the landowner, at least while stationary. Geological time and legal time both move slowly, but geological time ticks more slowly, unless you’re waiting for the conclusion of a legal procedure that will culminate in an adoption, divorce, inheritance or financial settlement.
Removal of rocks with equipment, as you have pointed out, falls under Corps of Engineers and DNR regulations. Landowners may remove gravel from streams for use on their riparian property without permits.
Regarding the habit of persons who like to pick up a few stones from creeks, there is a legal maxim: de minimis non curat lex.
We forgot an agency. The US Geological Survey, Water Resources division, which is tasked with stream measurement and water quality both in drought and flood. Last spring, when major reservoirs were bulging at the seams to contain all the flood water, USGS hydrologists were sitting in the catbird’s seat, at the dams and spillways, telling the Army Corps minute by minute flow measurements and estimates so that the engineers could decide how much strain the dams could take, and how much water could be released downstream safely. Let’s not forget the guys in the life jackets in the bass boats with little impeller sticks crusing around on the Meramec River at 42 ft…about 25′ over flood stage at Eureka….
Once a stream is deemed to be navigable, is it forever considered to be navigable? Consider Indian Creek, the stream in question in Elder vs. Delcour. Indian Creek was ruled to be navigable in 1954. For the past 20-30 years, it hasn’t been possible to float down Indian Creek in an inner tube much less a kayak or canoe without having to portage for more than half of the distance (except perhaps immediately following a significant rainfall). There are “holes” along the way where it is possible to swim and float but they are few and far between. However when we contact the local sheriff’s department to complain about people who are swimming and camping/having picnics on the gravel bars, the deputies tell us that because it is a navigable stream, they have the right to use the creek for recreational purposes.
You bring up a good point. I don’t know that there’s an answer without going to court and asking the judge to determine that conditions have changed since a court had earlier determined that the stream was navigable.
So if you are on county road right by the gasconade river and decide to stop go swimming are you aloud or is it trespassing on the guy on other side of roads land
Unless you can park on county property by a bridge, you’ll probably be trespassing when you walk across the strip of land between the road and the river.
Thanks for the feedback. My earlier post was incorrect in that Indian Creek was part of the McKinney vs Northcutt (1905) case rather than Elder vs Delcour. What type of proof would be required to show that a stream is a private, non-navigable stream?
On the issue of what is required to show that a stream is private and non-navigable, I don’t think that the issue has come up often enough in appellate opinions that there is a list of elements of proof.
Just because a stream is not navigable doesn’t mean that it’s not a wetland or in some other classification that would make it exempt from regulation. The history of a stream’s use might be important, as it was in Elder v. Delcour, to prove that it had functioned as a “highway” over time, and therefore it was navigable, regardless of whether boats would float in it.
Thanks again. I can’t imagine that it would be possible any longer to float timber or railroad ties down Indian Creek except immediately following heavy rains. But I’m most certainly not an expert in such matters. Our concern is primarily that we are the riparian land owners at a point where both a road and a railroad bridge cross the creek. Because of that, there are quite a few people who use the car and/or railroad bridge as an access point to come to camp/picnic on the gravel bars or swim/fish. They don’t ask for permission, they leave trash in the creek and on the gravel bars, they fish without a license and keep fish that are too small, they drive ATVs in the creek, etc. Because Indian Creek was used as a “highway” in 1905 and deemed to be a navigable stream, it seems that we don’t have any rights to stop this from happening. The local sheriff’s dept. gives conflicting information which only exacerbates the problem.
No ATVs are allowed in streams, but what about horses? None of the previous replies posted addressed whether or not a person may travel up or down rivers by horseback.
Does a campground have the right to access a creek by driving through my property?
A lawyer can’t answer that question without researching the title history of your property and gathering other information about historic patterns of use of your property for access. You need to talk to a lawyer in your community.
Great topic Harry. But I’m a bit confused. Is it or is it not ok to spend the day relaxing at a creek that runs through Farmer Bob’s back 40? From your post and comments I understand that it’s legal to float down the stream on “public water” but I’m still unclear on the topic of walking on the “private stream bed”.
I know of a nice big creek within an hour of St. Louis that has some great swimming holes and even greater smallmouth fishing. On our last trip to the creek we got run off by the local farmer who stated that he, “has never allowed fishing in his creek and he never will.” We get to the creek via a gravel county road, park off to the side, and access the creek via a ford. Now, I understand that we can’t park on his land, if that’s what we did, but shouldn’t we be able to shuttle our kayaks to the creek and get picked up downstream? And back to my original question – what about wading the stream? This creek I refer to is plenty big for tubing, kayaks, etc. – I don’t mention the name becasue, well…it really is a very good smallmouth haven!
If you don’t cross the farmer’s land to get to the creek, and the creek is floatable, you’re probably okay as a matter of law, even if you’re wading.
That doesn’t mean that the farmer won’t call the sheriff or take matters into his own hands. Being correct isn’t always smart.
Thanks Harry. One more question. What office do I contact, if any, to determine what public land may border this creek? There are roughly 8 creek crossings over a 10 mile span – one being a brand new steel frame bridge with a gravel road leading down to the creek on both sides. Is there any sort of easement around public structures such as these that would allow leagal access to the creek?
Thank you so much for the information!
If you’re in Missouri, the county tax assessor maintains maps that show approximate ownership boundaries. From these maps, usually with aerial photographs, you can see the extent of the county or state ownership of land around the bridges.
Great article, Harry. A lot of long-held questions of mine were answered thoroughly.
I have another question, though. I park rather often at a creek near my home where a gravel road crosses a culvert. I run crawdad traps in this creek from the rocks by the road because it is little travelled and a darned good crawdad hole. The trouble is, an adjacent landowner who does NOT own the property the creek runs through is constantly harrassing me, telling me he is going to call the law if I don’t leave. I am not doing anything wrong, and have repeatedly told him so, but wondered if I had any legal recourse to stop getting harrassed by this man?
John, when someone tries to make you leave a place that you have a legal right to be, you really don’t have any practical recourse. The man asking you to leave is free to express his opinion that you shouldn’t be there.
It’s probably impractical, but you can file a lawsuit against the person, asking the judge to grant an injunction to make the man leave you alone. But it’s probably not worth the time and money.
I don’t care that this is 11 years old. Maybe it will help someone reading the comments like me. Digression, thank you to the lawyer for this page. Missouri law prohibits the harassing of fishers and hunters who are acting within the law. You probably fall into this group and should anyone ever arrive to talk to you (cop etc) if they know the law they should actually warn the local person. I would start keeping a log of when someone harasses you this way.
Could you please let me know if a landowner who owns property beside the creek (not on both sides) is able to prevent swimmers from getting into the creek?
The creek in question is crossed by a bridge from which we gain access to the water. I was swimming with my husband and a few friends at a creek in Jane yesterday and a man came by as we were leaving and angrily asked us who had given us permission to swim there.
We were not being loud or obnoxious, we threw all empty soda cans back into the cooler when we were done with them, and we were not drinking alcohol or using drugs. My husband has been fishing in this spot many times and had never seen this man before. The woods on either side are posted with “No Trespassing” signs but we never even got close to the woods!
The man that is harassing you has no right to do so and as far as legal terms go there is nothing that he can do. However, entering at the bridge and exiting the creek at the bridge is important. Do not cross any fields or woods to get back to the road and there will be no legal issues what so ever. It was just last Sunday I was in Howard county Missouri arrowhead searching with a friend in a semi-navigable creek. When we had gotten back to the bridge we had entered on there was a farmer who claimed to own half-way to the middle of the creek an that his friend “neighbor” owned the other half this obviously was not the case as the corps of engineers own the entirety of the creek. Along with the Landowner was a Howard County sheriff deputy. The Sheriff was very nice and seemed to understand the rules “to an extent” as should a person who enforces law. He explained that even though the landowner was very upset that there was nothing to be done. The deputy continued to explain that we should not return to that spot to access the creek. We agreed and left with no resistance to avoid confrontation with the land owner. Realize though that if the law is involved they can still arrest you and remove you from the area with charges of trespassing. Though the charges will not likely stick, you will still have to deal with all of that which no one wants to deal with.
Korbin’s “legal advice” seems to be based on Elder v. DelCour. However, as a lawyer, I wouldn’t give legal advice without a careful investigation of the facts, such as whether the creek that Elizabeth writes about is in Arkansas or Missouri (she mentions being near Jane, a town in Missouri that is nearly on the state line), as well as the historic patterns of use of the creek. I would not rely on anecdotes about what happened in Howard County.
Thanks for writing, Korbin. And be careful.
I have just purchased some property with what I call a creek in it. It has lost water section and flowing water section and only flows continuously in the spring or heavy run off. What define a Creek, Stream, navagable, semi navagable and how does this effect my ownership? Also this creek run though deep woods until it exits into the river a mile away. Can I expect or must allow people who track up this creek access?
In summer it runs 5 gal /min or so in my section. Could I use a gallon a minute to fill a stock ponds and let unused excess return?
Thanks for writing, but I do not give legal advice on this blog. If you need legal advice about your situation, you should hire a lawyer in your community.
Lets try this again. In your previous writing you indicated that the land owner does not own the stream but is allowed to use the water for stock ponds, etc. Also there are some restriction on effecting the fish, wild-life etc. I am wondering if in your experience there are any guidelines as to what might constitute taking too much water. Each case is different and I hope answering this does not constitute legal advise. I could use the water but as there is a small population of small fish, I do not wish to damage their environment.
As for the other issue I am sorry I even brought it up. The creek itself is a mosquito haven and I am more concerned I might loose a goat and not be able to catch it due to the terrain.
Harry, Thanks for the answer. Guess I’m stepping into a mine-field and didn’t even know it. Just looking for a little knowledge like everyone else.
I had a recent encounter with a land owner and I can not find any information on this problem from anyone, including game wardons, until I found this site. There are still some grey areas I hope you can explain to me. I am an avid trapper and outdoorsman. I recently decided to place a trap line on Lick Creek in Bloomfield, MO, for the reason that a drought this summer has left a lot of creeks around this area unable to be trapped from lack of water, thus no animals to trap. Lick Creek is a state marked ditch at every bridge that goes over it. So on Nov 21 I parked on a state mowed ditch and accessed the land by the bridge that the state maintains and proceeded to set a trap line in the creek bed. I finished my trapping duties within an hour or so and proceeded to return to my truck. When I reached my truck I was approached by a farmer who owns land on both sides of the creek. He threatened me with the law and I told him that I would remove my trap line from the creek right away. The land owner said that I was trespassing, but I never left the water of the creek while setting out the trap line. After removing my trap line I tried to see if I was in the right or the wrong. I honestly did not think that I was trespassing being that I never had this problem before while trapping or swimming in this creek. I can not find anywhere if Lick Creek is deemed navigable, but I do know that it is a natural flowing creek. It is a large creek and with normal rainfall you could canoe or kayak down this creek as well as swim and fish. So what do I need to do or where do I need to look to get answers on whether I can trap legally in this creek or not.
You’re asking for legal advice about a specific set of circumstances. You need to speak with a lawyer in your community about these circumstances. Local lawyers have a tremendous amount of knowledge about how local judges might look at these circumstances.
There is no clear point at which a stream becomes non-navigable. Your only assurance of being legal on a creek is to obtain permission of the riparian landowners, whether you need it or not.
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I like to arrowhead hunt and i always get into streams at public road bridges but what if there is a fence crossing the creek can i cross the fence legaly
Harry — I’ve got question regarding damming existing waterways. Specifically, I would like to know general rules with regard to damming a small wet-weather creek. This is not really a creek but more of a “draw” — it only has water in it when it rains and then just a few inches — however, it does run over another land owner’s property at points (although a dam wouldn’t affect their water use).
In Missouri, the Department of Natural Resources administers dam safety rules and the Corps of Engineers regulates streambed modification. There is a minimum height requirement before DNR takes jurisidiction over the dam. The site still may require a land disturbance permit from a county or DNR. The Corps of Engineers also will make a determination of whether the stream is large enough for the Corps to be interested. Even though a project does not require government approval, the property owner who allows it to be built is still responsible for damages.
It’s easy to find people to build dams, because they need to put their bulldozers and dumptrucks to work. They will tell you that you don’t need a permit or an engineer.
I’m aware of such a dam being built recently that neither DNR or the Corps was interested in. The dam washed out after heavy rain, causing damage downstream. A lot of money was wasted and relationships with neighbors were ruined.
I am a riparian land owner of property that is bisected by a non-navigable perennial creek. It flows into another non-navigable stream which also flows into a non-navigable stream. (I use the Missouri definition of navigable here.)
Several years ago I constructed a 36 inch tie-wall across the creek between my bridge abutments forming a small pool on the creek. The primary purpose of the tie-wall was protection for my bridge and driveway which were being eroded and frequently damaged by seasonal flooding. Now the Corps of Engineers tells me that they control the creek and that I must remove the tie-wall and obtain a permit for “Dam Construction”.
I write this as information and to express my concern over growing encroachment by goverment. The confusion over water rights, riparian rights, environmental protestation and eminent domain has created a vacuum of defined authority. Government agencies are quick to fill the vacuum where clear definitions don’t exists. As I read the Clean Water Act guidelines written to local Corps of Engineer managers, they are to assume jurisdiction liberally and agressively.
Where are the advocates of property owner rights? These are scary times.
Thanks for writing.
The United States Supreme Court in recent years has been a strong advocate for property rights and has forced the Corps to scale back its broad definition of wetlands, particularly with the Court’s 2006 decision Rapanos v. United States.
When federal agency asserts jurisdiction over your home, to be scared is a normal reaction. However, it’s nothing new.
I share a pond in wich I had to run a cable across and hang paneling on to keep cows in. The neighbor kept complaining about the cows getting out and on his property.Come to find out he has put a pipe in the dyke on his side and lowered the water level four feet. Do I have rights to force him to fix the problem he created. He is not useing the water for anything. Thank you for your time
Thanks for writing.
I do not give legal advice about specific situations on this blog. Giving legal advice requires confidentiality, examination of deeds and other real estate documents, gathering information about uses of the real estate over time, review of statutes and court decisions, and inspection of the real estate. In addition, giving legal advice should be based on an agreement between the lawyer and client, which includes payment of a fee to the lawyer for the lawyer’s work.
Please pose your question to a lawyer in your community.
What are the rules about walking on the dry gravel bank of a creek? I have always heard that the public is allowed up to the high water mark whether the water is up at the time or not? Is this true or is the public only allowed actually in the water?
All I know is what I have posted here and the linked post. In Missouri (I don’t know about the law of other states), for navigable streams, the high water mark is the boundary. Whether a stream is navigable at a particular place can only be determined by a court, and courts have not made decisions on the topic except in a few cases.
Wouldn’t Elder v. Delcour apply?
Elder v. Delcour does not mention dry streambeds, which was what Emma’s question is about.
If Elder v. Delcour does not mention dry streambeds, a claim that Elder v. Delcour authorizes a non-owner to be in the dry streambed would be very weak.
I have a similar question to Emma,
I float rivers primarily, large established rivers, (elk, james, current) and I love camping on the gravel bars. Are there any laws that you know of that would prohibit me from doing so? We always stay on the gravel never wander into woods or fields.
There aren’t any laws in the form of statutes that would keep you from being on a gravel bar close to a navigable stream. However, there is no clear and practical definition of whether a stream is navigable at any particular point.
denise mundinger wants to know if you can clear and remove logs and limbs on a river due to flooding?
I don’t have any idea if you’re talking about a small stream on your property or a large stream in the Ozark National Scenic Riverways. Nor do I know whether you are thinking of moving heavy equipment into the water, or simply using a chainsaw and a tractor to break up a logjam or brush pile.
You need to get legal advice from a lawyer in your community who you can explain your circumstances to.
I’ve been waiting for a answer for a month on this topic of removing logs from a river. I called Mo conservation they told me to call dnr who told me to call Corps of Engineer who said call conservation who then told me to call dnr again then dnr has me call Dept of interior because logs I want to remove are from the late 1880-1910 era. I started calling July 14 2020 it is sept 3 2020 and still no clear answer. Dept of interior was suppose to have a answer in two weeks
I live near a small community in sw mo. near Little Lost Creek. We have a local “cooling off spot” that has been in use for generations directly off the road. It is along a well traveled, paved, major county road, and is accessible through a low water bridge and large bar ditch that annually handles large amounts of run off. There is even a parking spot for swimmers on public property. Recently, a wind storm toppled a large tree across the creek within feet of the swimming hole. Now, someone (presumably a land owner) has posted a “no trespassing, no hunting or fishing, non-navigable” sign on the tree in the middle of the creek. This creek has always been navigable. As a kid my friends and I would fish from the low water bridge to Weela park, near Seneca, about a 3 mile float. In the 40 years that I have lived here, the creek has never run dry, and is usually flowing rather robustly. Is this posted sigh worth the paper it is written on? I can understand the “no hunting” part if a person had to access private property without the owners permission, but It seems that according to everything I have read that the water and gravel bars are accessible to the public for fishing and recreation, as long as access or exit is not through private property. Does the fallen tree make the creek non-navigable? The tree is easy to cross, but is a terrible eyesore and an obstruction to swimming. Whose tree is it anyway? If the owner claims that it is his, wouldn’t he be obstructing a public waterway. Can private citizens remove it or is it the responsibility of the county or landowner? Does it just have to lay across the water until it rots?
This is one of the first questions about a stream that doesn’t leave me wondering about the location of the stream. My late brother-in-law Doug Caudell loved to dance at Wela Park. He and my sister owned an acreage a couple of miles upstream, which Little Lost Creek ran through.
While I don’t know how a judge would rule, I be surprised if Little Lost Creek would be considered navigable above Wela Park. I am not aware of any case law defining the right to remove a fallen tree from a stream, so I can’t give you any advice other than to leave it alone because it isn’t yours.
There is a slough off of the Mississippi river in Elsberry, MO called Praire Slough. There is a conservation boat ramp on the slough and conservation land on both sides except just north of the ramp there is a landowner thats property line encompasses the slough. Can that property owner restrict navigation on the slough. I am using the slough strictly for navigation to the northern part of the conservation area. I do not access the area through or touch any land features of the property owner. Here is a link to the conservation area map. http://extra.mdc.mo.gov/documents/area_brochures/7901map.pdf
The slough is accessible from the river itself. It is not landlocked.
Nobody can give a reliable legal opinion that a part of a Missouri lake or stream is open to the public without a court having made a determination.
How can I get that determination? Thanks you for your time.
Can farmers in missouri who own the property along a creek, allow their cattle to roam freely in the creek beds even if the creek bed always has water and fish life in it?
I don’t know of any statutes or regulations that restrict riparian owners from allowing their cattle in creeks. Most conservation organizations have tried to encourage cattle raisers from allow their cattle in streams. Two inherent challenges are the expense of constructing and maintaining fencing along streams to keep cattle out and the cost of constructing and maintaining alternate freeze-proof and reliable drinking water sources.
I was wondering about wading the creeks and metal detecting the beds.I have access to a few larger creeks by land owners but i can travel /wade for quite a distance.
You haven’t indicated whether you’re in Missouri. If you are in Missouri, you can wade in the streams, but the stuff you pick up doesn’t belong to you. I don’t know of any clear legal rule about it, but I would say the riparian owners have a better claim to ownership than you do.
What about metal detecting in streams that pass thru Missouri State Forests?
Shouldn’t I be able to keep what I find just like fisherman can keep fish that they catch which are owned by the State, as in Elder v. Delcour?
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.
it’s possible to put a canoe in on a local creek (southeast missouri near jackson) that has an old mill/dam museum controlled by the state. can i put my canoe in there and go up or down stream and fish as long as i stay in the canoe? the water isn’t accessible otherwise due to steep banks.
forgot to add to the above, the land above and below the dam is private.
My question is about the Osage river. Can I legally be on the gravel bar . There is a landowner that says they own up to the waters edge , even if the river is up or down. Can I be there if I don’t touch the property but come in on corps of engineers?
On a navigable stream, the adjacent landowner usually does own to the water’s edge or the top of the high bank, or something near the water. But ownership by the landowner is not the same as excluding the rights of the public, which has a right to travel on navigable streams, regardless of ownership. Unless a court has made a determination about the specific gravel bar that you are referring to, there is no clear legal rule, only the general rule that I just stated, which may or may not be applicable.
The supreme court has ruled that the navigable rivers Belong to the state, and held in trust for the public, to use up to the high water mark for access, for recreation, ,As long as they do not litter,or destroy. Property. Look up Public right’s to access MO. rivers.
It seems that whether or not a stream/river is navigable is questionable. Picking up arrowheads or rocks on a navigable gravel bar should be legal, but on a gravel bar on a un-navigable stream you shouldn’t be allowed to keep an arrowhead or rock since even below the water is the landowners. Is this basicly correct? I look for arrowheads in Clark County, Missouri and have heard that you can walk in a stream if its 30 feet wide, but its sound too small to be considered navigable. Even Fox River is usually to low for boats.
I was wondering if you could point me in the direction of the missouri statute that deteremines when a landowner can cross the river. We have accessed the river (more like a small stream maybe 6 inches of water by 2 feet wide) to gain access to the river bank. This is something we have done for 30 + years for picnics, camping, etc. Today conservation agents made me move my vehicle stating that I couldn’t do this. I have always been under the impression that because it was our property it wasn’t a problem. Do you know a link that better describes the laws reguarding this? Thank you so much!
You need to hire a lawyer in your community to help you with this. If you need a referral, you can contact me.
Who would I contact to find out about the laws of missouri pertaining to building a ford or stream crossing. Our creek is only a wet weather creek but at the mouth of our driveway it has about 2 to 3 inches of water mostly standing due to recent rain. It really does not flow at all. We have a “bridge” of sorts that brings us out of the water in case of flood but it is very narrow and we are in need of a large truck crossing for pickup of our organic produce. I need to be able to put in a concrete slab over the creek bed crossing beside the bridge making sure the water is able to flow over in wet weather. We have no desire to put in a roadway or culverts etc. We do own the land on either side of this creek up to the road that is then owned by our neighbors who has given us easement for entry. Who would I contact?
I own property on both sides of a creek. Is it illegal for me to blow leaves into the creek when I am cleaning up fallen leaves?
It’s illegal to put anything into a creek that will harm aquatic life.
If I am kayaking and I come upon a small dam, do i have the right to navigate on foot around the dam on private property to continue my travel on the public water highway? Wouldn’t the dam be a restriction to travel? This is regarding the Riverdale dam in the Nixa area.
Your logic is consistent with some of the language in the Missouri Supreme Court’s opinion in Elder v. Delcour.
I was wondering about cutting trees that have fallen in the river. A large group of us float on flat creek, and with recent storms there are a few trees that have made the float unsafe, to the best of my knowledge none of the land owners around there care about people floating. Is there any laws against cutting trees in the creek with a chainsaw?
The trees belong to the landowners. You have no right to do anything with the landowners’ property without permission.
I have a new neighbor who is felling trees and throwing the cut branches into the creek that divides our properties. We are less than 1000 feet from where the creek empties into Lake Taneycomo. Is this a DNR matter, a Corps of Engineers matter or a neighbor dispute that would require private litigation?
I don’t know of any basis for DNR jurisdiction. If you believe that the felling of trees and their placement is changing the water flow, you could talk to the Corps of Engineers. I don’t know what a basis would be for private litigation, unless you can prove that the activities will damage your property.
Is the placement of Geocaches just prohibited in the Ozark National Scenic Riverways NP or is it prohibited on all MO waterways? Who would I obtain permission from?
The public right to be on floatable streams in Missouri is simply to use the stream for passage. If you want to place something (however small) on somebody’s property, you need the landlowner’s permission.
Hi I was wondering if I could get scrap metal off the river banks Missouri river ,I know that the railroad gets 20 feet on each side but if scrap metal is pass 20 feet can I get it
The only safe assumption is that the scrap metal belongs to the owner of the land that the property is on. I realize that many people and organizations pull trash–some of it metal–out of rivers and off riverbanks and are admired for doing so.Maybe you need to present yourself that way to the property owners.
i own land in Reynolds county and there is a stream running thru our property about 100ft from hwy21, it is a run off from Johnson shut in. I added a concrete bridge so I can access my property during rising water. I want too add a gate! I was under the assumption I can add a locked gate after the bridge and I can’t block public access too the creek, is that correct? Is there a law in Missouri that all property owners must allow access? I looked around your blog but not sure.
You will need to consult with a local lawyer who can review the status of the road on which you wish to place a gate. The public has the right to go up and down streams for lawful purposes, including fishing and boating, but a property owner is generally not required to provide access over his property for the public to reach the stream.
There are no Missouri statutes on this subject.
i have a question can i take sunken logs out of the current river in mo.
If the logs don’t belong to you, you should leave them alone.
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if a land owner holds title to all of a lake bed on a non-navigable creek and said title says to the lakes high water mark would any adjoining land owners have riparian rights to the water? Do you know of any such cases?
There’s no way to answer this question without reviewing a survey and all the deeds of adjacent property.
Riparian rights are the rights that go with ownership of land along a lake or stream. This include a right to use water from the stream, if that’s what you mean by “riparian rights to the water.”
Thank you for your reply. What I am implying is if a body of water on private land with a deed of the lake bed that includes it to be to the high water mark would property owners who’s land abuts that high water mark have a claim to use that lake. The high water mark will change with lake levels and doesn’t have a set point but would it create the condition that a claim of access to the private lake could not be made. A riparian claim that said land owners property abuts the lake therefor I have a right to access it.
As I mentioned, a lawyer would need to review the deeds and history of conveyances, with the assistance of a survey, to reach an opinion. If, for example, the history of the conveyances or recorded plat indicated that the owner of the lake area intended to sell lots, reserving the right to the lakeshore, then it would be hard to argue that the owner above the highwater mark has any riparian rights.
To what extent can trees be cut or trimmed in wetlands before it is considered disturbance or needing a 404 permit?
I don’t know the answer. I would ask the Corps of Engineers.
Are there laws pertaining to a landowner next to a creek running hydroelectric?
If you’re talking about a 3-inch pipe taking water through a small generator and returning the water downstream, probably no permit is needed. But building a dam and diverting water would require a permit from the Corps of Engineers and possibly several other agencies.
I live in a “private” lake community. It was a creek many years ago that was damned to create a 550 acre lake. It has a spillway that the water continues to flow over and into the creek below. Since this is a navigable waterway, can they restrict the size and type of boats on the lake as well as who uses it? My understanding is that anyone could use it, not just the residents.
The concept of navigability is not helpful in analyzing rights to use streams, but is relevant to whether adjacent owners own the land under the stream.
According to the Elder v. Delcour holding, the public has a right to use streams for passage and fishing, regardless of navigabilty.
I don’t have any insight into the rights of the riparian owners to enforce regulations on the size and type of boats.
What about metal detecting in a creek that runs through a historic site, legal or not, and any other creek? Many Thanks.
I am a riparian landowner on a small creek and everyone wants to use Elder v. Delcour court decision as their right to trespass on my property.
Many articles and blogs such as yours cite the preceding case but fail to mention Dennig v. Graham 1933 Court of Appeals in Springfield MO; which is referenced in Elder v. Delcour; and its ruling on non navigable stream access.
Click to access Water-Law-Article.pdf
Per the above attached article “The Court in Elder specifically noted that there is no inconsistency between its holding and that of the Court of Appeals in Dennig.”
The following document also cites Elder V Delcour and defines the three watercourse categories in Missouri as: Public navigable, Public non-navigable, and Private non-navigable.
Click to access PublicRightsInMissouri001.pdf
Per a chart on page 1 of the above document there is no public right of way on Private non-navigable streams for: Fishing, Wading and Boating.
If articles and blogs mentioned the above facts instead of “Cherry Picking” Elder v.Delcour the public would be better educated and less conflicts would arise between riparian landowners and the public.
I understand your frustration, but have to deny that I was cherrypicking in my discussion of Elder v. Delcour, or was unaware of Dennig v. Graham.
The problems with the application of Dennig v. Graham are that it predates Elder v. Delcour by 20 years, it was issued by a court of appeals rather than the Missouri Supreme Court, it is focused on a fairly unusual short spring branch at Greer Spring rather than an ordinary stream that crosses many property lines, and does not take into account the language of Elder v. Delcour with respect to the rights of holders of fishing licenses to pursue game fish. But more significantly, we have no easy way to determine whether waters in non-navigable streams are public or private, other than whether the stream is floatable.
I also take issue with a few of Mr. Boudreau’s points. He misstates the facts in the shooting of Paul Dart by Mr. Crocker, perhaps because he did not know that the prosecution would eventually prove that the shooting did not take place on Mr. Crocker’s property. I disagree with his contention that “Elder expanded on this topic only to address the scope of the public easement on navigable streams.” Elder plainly states that the public has a right to fish and float on a non-navigable stretch of the Meramec River. Mr. Boudreau’s essay, in my opinion, pays too much attention to the issue of navigability, which is not helpful in determining the right to float or fish.
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We own commercial property in St. Louis that straddled Gravois Creek. A portion of the creek bank fell into the creek taking out a light post and part of the parking along with some trees and pavement. The department of public works has cited our property and says we need to stabilize the creek bed. This could cost a great deal. Can public works require us to stabilize the creek bank on our own property?
Steve, you need to consult with an attorney in St. Louis who can review the ordinances that give regulatory power to the public works department and advise you as to whether the department has the power require you to stablize the bank.
Recently we purchased some land with a creek on it. A gentleman purchased the land next to us and he is turning it in to crop land and has begun tearing trees down and fence rows. He has piled all this up in the creek bed and it is blocking water flow. Is this against the law?
You need to consult with a lawyer in your community.
I would like to know is it legal to dam up a creek , a small one but still it has running water. With old asphalt streets, old concrete foundations , walls 6 -8 feet , trying divert the water up and around his land , failing to do so cause it was to up hill I guess . An plans on the dam and wall to be 6-8 feet high and around 75-100 feet long. I really don’t want my name brought up cause My family could loose our place to live . But I was born her and I don’t feel anyone was the right to do so , much less a Russian – Ukraine…… Building this is done mainly done after dark up till 2-3 am . what can be done about this ?
Greg, dams under 35 feet high are not regulated in Missouri by the Department of Natural Resources. In some instances, the U. S. Army Corps of Engineers may need to approve the dam.
I own property along a creek in the Ozarks. The property owner across from me has cattle that get into the creek and cross onto my land. I was under the assumption that you can use the water for livestock but not allow them into the waterway. Is this correct?
Missouri law does not prohibit cattle in creeks.
Harry, when I say cross the creek I meant they are standing in the creek a lot they cross over onto my property. My daughter and I like walking the creek in the summer and we are running into cows around every corner it seems.
We own property along a creek the other side of which is the railroad tracks. We get a lot of traffic from ATVs and pickups going up and down the gravel bars dumping trash, having camp fires and taring up the edges. We have confronted people on several occasions, but I’d rather leave it to an official. We like our creek quiet and clean, who can we contact to make sure it stays that say? DNR, Sheriff, we’re not sure who. This is in southern Missouri near Annapolis. A lot of the time they go drinking at the bar and use the back way down the creek to sneak home. We’ve put up purple paint and no trespassing signs which as not worked. We’ve also talked to the same people more than once, obviously that is not working. Any practical advice would be appreciated. Not sure if Big Creek is considered navigatable, we wouldn’t care if they we not tearing things up.
It is illegal to drive vehicles (including at atvs) in streams except at road crossings. I suggest putting up a game camera to try to identify the trespassers. Once you can do that, the sheriff will probably be more helpful.
For most issues, including this one, navigabilty is irrelevant.
Is it legal to fish on watersheds in Missouri? No one seems to know.
I have no idea what you mean by “watersheds.” It is legal to fish by lawful methods wherever there is water that supports wild fish. It is not lawful to gain access to those waters over private property without the consent of the owner of the private property.
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Sorry if this is redundant but I am getting a bit confused. If I own land on both sides of a creek to the middle of the creek, I own the land beneath the water. Does that mean I can keep people from “wading” up the creek – walking on the land beneath the water?? Thanks.
If your creek is in Missouri, you have no right to keep people from wading in the creek, regardless of your ownership of the creekbed. You have the right to keep them from crossing or being on your dry land, except they have the right to get out of the creek to go around obstructions in the creek.
Thank you very much!
We have a wet weather Creek on our land, and people walk it to get to a cover on the lake. Would that be considered legal?
You need to talk to a lawyer in your community. I don’t know what state you’re in, whether the lake is public or private, if people have been doing this for a long time, whether an easement exists, whether you own the land that you think you own, etc.
Is this still the case today (2022)? If I enter the creek legally from private property I wade and fish the creek? That is what I always thought but seem to be different now. Thanks
I would like to know the exact regulation and law when it comes to private non-Navigable. The reason I ask is because according to Pub G810 from MU Extension it states the following The question of where the boundary runs when land
borders a stream may arise when water, gravel, mineral
or recreational rights are disputed or when a stream
changes course. The location of the boundary and the
adjoining landowner’s rights normally depend on the legal
classification of the stream at the point in question. In
Missouri, riparian water (natural watercourses or lakes)
may be classified in these ways:
• Public navigable
• Public nonnavigable
• Private nonnavigable
If a stream is too small to float canoes, small fishing
boats or logs, it falls into the classification of private
nonnavigable. Here, adjoining landowners not only own
the bed to the center thread, but also have the right to
control the use of such streams.
Harry, I would like to know if it legal to to be on the banks of rivers/hunt water fowl from the banks of rivers. If possible on only a few rivers/streams of Missouri were would i find this information. I would also like to know if i can hunt squirrel from a kayak on the rivers if i do not own land on that river and if so what rivers.
I don’t know of any legal authority for hunting land animals or waterfowl on private property not belonging to you without the owner’s consent.
Can scrap metal from flooding be taken from banks an streams without being in trouble?
I can’t recommend taking anything without the permission of the property owner.
If am old dam crosses a river, and the river flows over the dam. Am I legally safe to wade in the water and cross the dam to continue fishing. The land owner has ran me off in the past from fishing off the dam made of concrete, constructed around 100 years ago and not by this current landowner. So I want to know if I have a legal right to cross the always running water’dam’ if I stay in the water and never touch the river bank?
I can’t give legal advice on this blog about specific situations, but can only describe decisions of courts, statutes and regulations. To give legal advice, an attorney has to be licensed in the jurisdiction, have an agreement with a client (usually involving a fee), determine that the attorney does not have a conflict of interest, investigate the facts, and research the law.
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We live in the country and the back half of all of our properties has a creek dividing our property in half. It is my for draining during heavy rains. We have horses and I would like to expand/connect our fence traddling over the creek so the horses can cross over to the other side of our property for more grazing area. Am I allowed to allow my horses the ability to cross the creek? Is there a law prhibiting? I have asked my neighbors and everyone seems fine with the idea as long as I don’t block any water flow. Was not able to locate any laws on the subject. I would only fence on my property so they could cross over to the other side of my property. Is there a law against it?
There is a creek on a private lane on our family land. There is property behind us, this person has bought land from two different people.
To legally sell their land to him they had to give him easements to the county roads.
The property directly behind ours has Always had that easement to the county road forever.
He is trying to take over our private lane, because it was a better lane and it is a short cut to the county road.
WE DID NOT SELL THIS MAN ANY LAND!!!
He doesn’t have a house on his property, he uses it for cattle, he lives in Arkansas.
We inherited this land from our mother, there are seven children, we are all returning as we retire, do we cannot be there all the time, he does as he pleases.
He destroyed the cement dip my father put over the creek over forty years ago with his heavy logging EQUIPMENT ( we have a law suit against him using our lane)
But he put down a slab of cement over the creekthat does not allow the water to flow over the cement and is causing water backing up on my brothers property.
The cement mess is breaking and has chunks of cement breaking off into the water.
He Did Not have permission to do this, in fact my husband told him not to do anything.
My question is….didn’t he have to get a section 401 certificate from the DNR before he could put this down and if he did how could he, he Does Not Own the land!!!
You need to speak with DNR and the Corps of Engineers about the situation. Each has helpful websites that may allow you to find the correct office to talk to.
As you may have heard, the Trump Administration is in the process of revoking the scope of federal control over stream modifications, and similar efforts are going on at the state level. If you want government help to assist you in protecting this stream, you may want to let your elected representatives know how you feel.
We saw a back hoe in the water on Shoal Creek at Wildcat Glades Audubon in Joplin,Mo. last week pulling concrete blocks off of a bridge getting ready for a wedding on the bridge. We thought it was illegal to have this in the water since it has hydraulic fluid and all kinds of other harmful substances leaking into the water
They were only moving the blocks to have the wedding.Please let us know,because this was the Audubon doing this which is all about nature
Am I able to go to a lake or pond that is surrounded by houses and fish if there aren’t any no fishing signs?
How do I differentiate between public and private bodies of water that aren’t connected to streams and aren’t fenced?
Cody, generally speaking, you don’t have a right to cross property belonging to others without the owner’s consent. Typically a small lake or pond surrounded by houses is part of a real estate subdivision and is privately owned. You can check county records, usually at the tax assessor’s office, to find out if the lake or pond is private or public property.
Hello, my name is Robert and my question is this: I live next door to a neighbor who has some issues following laws and has been in and out of jail recently, he has his sisters property where he resides, marked no trespassing and we respect that, however he has cut some trees and let them fall across the creek and sent me a text message threatening to continue to dam it off so my property floods with a heavy rain, coincidentally i am in a flood plain, i have asked for the trees to be removed with no luck. Are there any laws that protect me with this if so how can i force him to remive the trees. Thank you. Robert Schumacher
Robert, you need to consult with an attorney who practices in the county where your property is, who can evaluate the situation.
i am constructing my own shantyriver boat or houseboat..where do i look for rules and regulations
Shannon, I’m not aware of any rules regarding the construction of boats for personal use.
I disagree with your statement in reply to Stacey (August, 2015) in reference to the Elder v Delcour decision, “Elder plainly states that the public has a right to fish and float on a non-navigable stretch of the Meramec River”. It seems to me that it states that even though the Meramec at Delcour’s is not, at present, navigable for commerce, it is navigable in fact (and therefore the waters and stream bed to the normal high water mark may be accessed by the public). In my opinion, Elder v Delcour makes no judgement on non navigable streams. I refer you to page 45 in the following DNS publication : https://dnr.mo.gov/pubs/WR51.pdf
Sarah, thanks for commenting. The court’s language in Elder v. Delcour rambles quite a bit, so that it’s possible to interpret it in multiple ways.
My conclusion is that the court determined that the Meramec River, at the point in question was nonnavigable for the purpose of determining title, and that whether it is “navigable in fact” was not relevant to the holding of the court. This conclusion is based on the following language from page 23 of the opinion:
“In view of the admitted facts, it is nevertheless our view, that the Meramec River at the point in question is a ‘non-navigable river’ as that term is used in this state for the purpose of determining title and whether or not appellant, as the owner of the farm through which the river flows and as the riparian owner of both banks of the river, is the owner (subject to the exceptions, limitations and burdens hereinafter referred to) of the bed of the river from the meander line on one shore to the meander line on the opposite shore. Under similar facts the courts of this state have repeatedly taken judicial notice of or have held that such a stream is not a ‘navigable river’ as the term is used in this state where title to the bed of the river is involved. ”
The term “high water mark” does not appear in the opinion.
Few streams in Missouri have been determined by a court to be navigable. Like the upper Meramec, they may be floated and waded and were determined by the court to be “public waters” on page 26 of the opinion:
“We have ruled that the waters in question here are public waters and that the Meramec River at the place in question is a public floatable highway for travel, but that appellant is the owner of the bed of the stream, subject to the use of the stream as a public highway, as stated. The right of the public to fish in such public waters under the facts stated and to use them for pleasure and recreation has not been previously decided in this state.”
The reference to the abutting owner having ownership to the middle of the stream means that the court has ruled that the stream is nonnavigable, though the water in it is public.
I have a question my daughter is 8 we have a gravel road and she like to play off the bridge in the creek the owner put a electric fence over where we walk on the side of the gravel bar to keep her from going and playing in it also he has a fence away from the bridge to keep his cows in i thought the bridge was county property since they grade the roads and the gravel bar was county property what can i do
My question is, if my friends make a party float trip on the Meramac river and have it planned with a resort, is it illegal for me to join them with my own personal gear (canoe, paddles, fresh water bottles and safty equipment) making me buy the “trip” with a certain resort? Im not finding any literature on the subject that say for sure i can. I just dont want to start a pissing contest with the resort.
You can think of the river as a public road. You can cruise along with whomever you wish. You are not obligated to the resort company unless you take advantage of a service they provide for a fee, such as a shuttle.
Can you take photos in a seasonally dry creek bed, even if it is on private property, and only stay in said creek bed?
Jane, the only safe advice that I can give is to get the landowner’s permission.
We are on a hill that has several runoffs. I don’t know exactly what to call them because other than a few spotr they basically only have water when it rains. At the bottom of our hill though there is a small spot of water we were wondering if we can enlarge it to a pond.
I was wondering the same.
I call it a stream and then further down a creek eventually where it’s become wider and hold water much more of the year, but not the first couple hundred yards. It starts on our property (top of a hill) and gets larger the further you go down between hills. Using Google Maps, this stream is drawn on their map view (not saying this mean much but they’re recognizing it as something). This creek continues on and eventually goes into a river after passing through several other properties. We do a lot of deer hunting and have wondered myself if I can legally dig out a large pond and dam up this stream at the bottom of my property before it goes onto the neighbors place.
Water comes out of the hillsides enough that the creek is wet all year except maybe a month or two in the middle of the summer, has a gravel bottom etc so it’s definitely something one would categorize as a stream or creek.
If I get serious about doing this I’ll contact the local conservation officer among others to determine for sure but like Debra am curious what you’ve seen over the years regarding a situation like this.
nice write up by the way
Please see my response to Debra. The answers to these questions involve a lot of review and consultation.
I’m a lawyer who practices law in southwest Missouri. I cannot give legal advice without being hired (assuming your real estate is in Missouri), inspecting the site, reviewing restrictive covenants, reviewing zoning regulations, and consulting with an engineer.
what about the taking of artifacts in a creek that is not navigable land is posted own on both sides and have cameras placed on property .
I do not know what state you’re in or what kind of artifacts that you’re talking about. Generally speaking, in Missouri, on a non-navigable stream with one owner who owns both sides, the owner owns whatever is not water.
Can I fish from the bank of public water even if someone’s land backs up to the water? If so how far on up the bank can I go before it is trespassing?
If by public water, you mean a stream such as the Missouri River, you have no right to be above the high bank, unless there is public land above the high bank.
You are wrong, in a waterway considered navigable the property owner does not own the land under the water.
A person does own the land under the water the person does not own the water rights if it’s navigable for further information on land and water rights see Incline Village versus Edler Missouri supreme Court ruling this year.
The Missouri Supreme Court in Incline Village v. Edler held that a property owner who owned land abutting an artificial lake did not have a riparian right to place a dock on the lake. With an artificial lake, the right to place a dock could only arise out of a contract right, not a riparian right.
A person does own the land under the water the person does not own the water rights if it’s navigable for further information on land and water rights see Incline Village versus Edler Missouri supreme Court ruling this year.
Mr Anderson, you are correct with respect to navigable rivers. My sentence pertained to creeks, which generally are not navigable. I am not aware of any navigable creeks in Missouri and only of a few rivers which have been determined to be navigable.
I live in Bollinger county, Missouri. I am a grandma with a 5-yr-old granddaughter and ten-yr-old son. I like to take my babies to the creek once in a while to wade. Recently, I saw a sign that read “private property, keep out”. This is a small creek under a bridge by the road we pass every day. It usually only gets a few feet deep unless it rains, then it floods very heavily. I am confused. Do I have a legal right to stop and let the kids play? Should I ask the sheriffs dept. or call the wildlife and fisheries dept? I believe in doing what the law states, but according to Elder vs. Delcour, I have a right to wade in the creek. But how do I defend myself if someone says something to us? Where can I park my truck or 4-wheeler since the creek is off the main road and does have a gravel access? Please inform.
You do not have the right to cross private property to get to a creek. According to Elder v. Delcour, you have the right to wade in a stream, regardless of whether it is navigable. If the county does not prohibit parking along the road, then you can park on the shoulder of the road and walk to the creek, as long as you remain on public property. The county and the state have the right to restrict the use of public property. I encourage you to ask permission from the landowner who posted the sign, just as a way to avoid trouble.
My in-laws are buried in eastern Madison County in the Snowdenville cemetery near the upper Castor River in the Cornwall area. You’re in some beautiful country.
If i own both sides of the black river can i cross the river to access my other land with out getting in trouble need told its a $250 fine per tire
Subsection 2 of Missouri statute 304.013 includes the following language:
“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.”
You can ask your own lawyer what this means.
hello, Harry. Thank you for being available and addressing the concerns and questions of land owners along Missouri river ways. I am wondering about the rights that the river resorts have in relation to cutting fallen trees out of the rivers. recently the local resort has cut a live tree from the banks of private property. this live tree has has been holding our bank from further erosion but was reaching out over the river and obstructing part of the main channel. it was possible to go around it. your thoughts?
What are they rules on a creek that can be navigated. I was fishing by a bridge I went under the bridge and was 10 ft out from under the bridge standing against the water and a guy ran me off told me I wasn’t allowed to be down there it was his property. I didn’t want to argue cause I wasn’t sure the rules so I legit my stuff and left but would like to know a few rules on that kinda situation
Thanks, Harry, for your informative blog. In a post from October 16, 2012, a reference was made to access to Little Lost Creek near Wela Park. I own what used to be Wela Park, and for clarification, it is Big Lost Creek that runs through this land. When I bought the property, I attempted to block access to the dangerous, crumbling dam area and have spent the last number of years running trespassers off because of the trash they leave behind, the day and night drug deals that take place on my property, the constant harrassment from people who think this is public property, and the knowledge that even though my property is posted “Private Property”, there are idiots around here who get high or drunk, do stupid things and hurt themselves, and then sue the landowner hoping to get rich off of their own stupidity.
My position is that Big Lost Creek is not a navigable stream. I do not own the water, but I do own the land on either side and the streambed, and I can prohibit entry on my property, including wading the stream. If someone could float a vessel, even an inner tube, through my property without touching the banks or the bottom of the creek, it’s navigable. Since that is impossible, I consider Big Lost Creek non-navigable and I am within my legal rights as landowner to prohibit access to my property, including walking up the stream bed. Do you agree?
Sherrie, I’m sorry for the problems you’ve had with this lovely place on Big Lost Creek. While you do own the creek bed, since this is a non-navigable stream, the public still has the right to wade in the stream, but not the right to get on the banks or to leave trash. You can prohibit entry on your property, other than by water.
Thanks for your thoughts, Harry; however, I will take issue with that concept. If we take that theory, that the public can wade wherever there is running water, that would allow anyone to access any property where there was a rivulet of water as long as they kept their feet wet. Surely that isn’t correct!
The Missouri Supreme Court made clear in Elder V. Delcour, which is discussed in this blog post, that the public has an easement over non-navigable streams. That means that members of the public, if they stay in the water, have the right to wade on private property.
I have a small shallow creek I own both sides of. My neighbors think they can help themselves to the gravel and tear it apart because a small bridge (that’s bout fallen over and MODOT don’t take care of it anyway) I have put fences up and they have been ran over. I’m trying to see if I can legally put a privacy fence all around the area I own so it doesn’t keep getting destroying the area since creek is usually dried up anyway or if I have to leave the waterway open?
When a person owns land on both sides of a creek it is then legal for anyone to be in that creek. Is there a law that states how much land on either side of the creek is owned by the state or is it still considered private property on a gravel bar?
I think it depends on whether the stream is “navigable” or not. On a navigable stream, the public is allowed to use the water and gravel bars up to a certain level and I’m not sure whether that’s the high water level, average flow level, or lower. On a non-navigable stream, if the landowner owns both sides, he/she also owns the stream bed but NOT the water. I believe that if the public can travel on the water of a non-navigable stream without touching the sides or the bottom, they can use the waterway. Otherwise, if the stream is small enough not to allow boats to travel without having to step on the bottom or the sides, I do not believe the public has access to that property. Otherwise, any small rivulet of water would allow the public to access private property as long as they kept their feet in the water, and that makes no sense.
If you read my post, you will find the answer, if there is one. Except for a few navigable streams, the land under a creek is owned by the adjacent landowners. The state owns the water in trust for the benefit of the people of the state. Gravel bars are owned by the adjacent property owners, but the public may have a right to walk on an exposed gravel bar to get around an obstruction.
As someone who has floated and waded MO streams for 40 years , I find the information provided by the blogger and the questions and responses by landowners and recreational users in this blog very educational and helpful. It’s interesting to read about different points of view and situations.
I suggest reading “Recreational Rights of the Public on Missouri’s Rivers and Streams: A Timely Refresher” by Paul A. Boudreau. You can google it and find it online. It clearly describes the difference between navigable and non-navigable streams, and I use this article to exclude the public from my property in southwest Missouri. My stream is non-navigable and the public seems to have a misguided idea that ALL creeks are subject to trespass as long as waders keep their shoes wet. This article has been very helpful to me in educating my trespassers.
I disagree with Boudreau’s understanding of the law. In Missouri, the public has a right to be in streams whether or not navigable, but not a right to cross private property to get to the streams. While Elder v. Delcour is not a model of clarity or concision, this point is clear.
I disagree. Taking that concept to it’s conclusion gives an illogical result. A perennial trickle of a stream does not give public access to private property. My stream is no more than 6 inches deep for most of its passage across my land, with an occassional 6 foot deep swimming hole and numerous log jams completely blocking the creek. It is not navigable. It is not floatable. I own both sides of the creek and I own the land under the creek. The public cannot cross my property via the creek without setting foot on private property, either by walking gravel bars or by walking on the stream bed. I believe Mr. Boudreau’s interpretation of navigable vs. non-navigable is well-researched and spot on, with the understanding that each case (stream) must be evaluated on a case-by-case basis.
I like living in Bull Creek Missouri USA. I have done clean up to protect the turtles and bird’s plus natural beauty here. I don’t really like the fishing lines etc. and wish people fish down by the empire park. Every spawning season people come and disturb the trout’s and wildlife.
My gf owns a tract of property in wright county MO. It has a dry creek bed which only has water in it maybe a month out of the year. Other landowners around us keep walking into the property saying it isn’t trespassing because it’s a river, I know better than that having gone on a number of float trips but what is the legal statute so I can post it properly
I am curious about this, too. The creek running through my property is dry most of the year. Technically, that Elder decision that’s referenced says the public has the right to move up and downstream “in the water”. So if there is no water… I’ve had a local officer tell me that the creek in my area is nonnavigable and people are trespassing by being in it.
So I want to walk along a creek (New Home Creek) however I do not know the owners or thier rules so I was wondering if it would be legally ok for me to just walk along the creek.
Not sure I understood all of this. I was just wondering if a land owner could move or change the nature direction of a small creek , making it shallower and put down large rocks in it.
The Corps of Engineers has jurisdiction over streams that have a permanent channel and flow.
If q creek runs through someone’s field, how mqby feet from the edge of the creek is consider to be owned by conservation?
What of the non navigable River Des Peres and the efforts to make law to arrest homeless that camp on the banks. What of the bank of the Mississippi or Missouri Rivers can the homeless be entitled to camp?
I’m not aware that the rights of people to be on property belonging to others is related to their homeless status. Private owners of the banks of non-navigable streams have the legal power to exclude others from their property. With respect to the banks of navigable rivers, governmental owners and private owners have the right to exclude or regulate the use of the riverbanks.
I live in a neighborhood decently out of the way of the main town, but a neighbor a couple fields away I assume called the cops on our group of houses because one of my neighbors and their children kept leaving trash and non-biodegradable materials on the bank. Is there anything I can do to still be allowed access to the creek as I do photography and study the rock formations around it. I would even offer to keep it clean, but I have no idea who owns it.
You need permission from the.owner of the property you wish to walk on. Your local tas assessor should be able to tell you who owns the property.
I have a small creek that runs between my home and another home, is that considered an easement to where the city should maintain? It’s close to taking our fence out
I don’t know why the city would be responsible for protecting your fence.
There is a creek that runs between my house and the neighbors house, is this considered an easement and should the city maintain it?
My fence is my property, we had a neighbor who wanted to put rock in the creek and on both sides of creek, the city would not approve it.
I’m asking is it considered an easement where we can’t fix the overflow of the creek?
Debbie, you need to consult a lawyer in your community. I don’t give legal advice about specific situations on this blog.
I absolutely love it down there, I guess I’ll just reach out to the county assessors and find out how far their property line is. We just want to enjoy our summer without being harassed for money.
I absolutely love it down there, I guess I’ll just reach out to the county assessors and find out how far their property line is. We just want to enjoy our summer without being harassed for money.
Huzzah is a great floating river!
Harry, I have a place on the Black River near Annapolis. I understand the right of a land owner to cross the river, if in fact they own adjacent land on both sides. My question is, does that land owner have the right to allow others, who do not own the the land, to ride their ATVs in, through, up and down that portion of the river? To me, the spirit of the law is to allow farmers, and land owners to check and maintain their land without the need to drive for miles to get to the other side, not to allow tens/hundreds of others to drop their name and tear up the river with their toys.
Luke, I am having a similar situation. My neighbor owns a few hundred acres with several creeks and county roads running along his tract. He has opened an “off road” park on his property and has “trails” running down streams and along the county roads. Not only is he inviting hundreds of people to tear up the area, but he is also charging people and making money off of this activity. I am aware of
As well as
But the roads and streams are on his property. Harry, Is there anything I can do to end the destruction of the land?
Can you camp overnight anywhere along the banks of the Gasconade River
This is EXCELLENT information and thank you for posting it. (and following up on replies) Question about the navigable streams/rivers. (maybe a few… am long winded) Many Missouri rivers (legally navigable to the best of my knowledge… ppl float them, the Conservation has public access ramps to many of them) has private land ownership that traverses the river on both sides of the bank. In your general opinion (no legal advice of course), do these land owners, own the land under the river? If so, could they (land owner) prevent access to sandbars within the confines of the river bank but on said property, per boundary markers, confining people to the water exclusively? You stated above: “The land under the creek belongs to the person named as the owner in the recorded deed. However, the land under navigable streams (such as the Missouri and Mississippi Rivers, the Osage River, the White River and only a few others) is owned by the government.” Is there a list of rivers that Missouri owns the stream and riverbed/are you aware of a list of all navigable streams in the state? I’ve spent hours web surfing (hence landing here… thank you) and have found your list in the quote above to be as comprehensive as any other source I could as a novice find and I am very interested in the few other rivers you were talking about. I am sure you follow the question/scenario, but if you wanted a half dozen examples quickly (in the spirit of keeping it non-specific), they are easy to dig up, just google “Missouri public access boat ramp” and pick a small navigable river not on your list.
According to Elder v. Delcour, the public has a right float and wade on non-navigable streams and to walk on the stream bank to get around obstacles. That’s all the legal guidance I’m aware of.
I am wondering if there is any regulation on building a log foot bridge across a creek on my property.
I don’t know.
Got to say I’ve lived in many states but missouri has to have the most screwed up waters I’ve ever seen there is something truly wrong in this state. I’ve never seen it where you can own the land under a natural water way before and are able to stop honest outdoors men and women from utilizing it. Some of these mentally challenged laws need to be changed if we pay for the water as outdoors man to keep it clean we should be able to use all of it
How will the recent New Mexico stream access ruling effect Missouri stream access. I know that it will be used as part of Colorado and Wyoming stream access challenges.