River/land ownership

[Fishing freak]

Question:

Where does a landowners property end on coastal stream/rivers. a friend of mine owns a house/property on the Necanicum river about 1/2 mile below the large spruce tree ( she tells me that she has been told that it is on the best fishing hole on the Necanicum). Unfortunately
people keep littering the shore with egg/worm containers,tackle wrappers ETC..... She has nothing against fisherman, but is getting tired of continually picking up the debris.Hate to see anybody own part of a river but I can understand her irritation!

[rcl187]

I've been told that if they own both sides of the river (creek) then they own the ground beneith it as well. That means that they can ask people wadding to leave. If they only own land on one side they own up until the water line. If alot of people fish her property and she doesn't mind (except for the litter of course) then she should post a sign saying that it is private property and will be closed indefinetly if it isn't cleaned up. Those who use it will probably clean it up. If the problem continues then she should temporarly close it and state the reasons why.

[JPSFISHY]

County and state records vary greatly. Rivers/Streams depending on their listed designation can be land owner at the middle of the river or high water mark. Those records can change form time to time. RESEARCH is the key. It's timely, and a pain in the butt. No doubt. But it can open some opportunity's, as well as eliminating potential problems. My hunting group has gone the extra mile to research county/state records on land ownership/leases/wills/surveys/gifts/etc. We're not there yet, have some money out, but it's a goal. Trashing a property hurts all. We carry bags, and pack all, all the time. I've met land owners, while picking trash, and gottin written permisson. Ain't no free lunch. Respect earns respect. Thanks for your post.

[rob allen]

Shis is a sticky issue that should be clear and simple. It is sticky because people including local law enforcment and state agencies don't understand federal law.

Federal law is very clear and very simple. If the river can be floated even in a small boat like a canoe it is legally navigatable (sp?). ALL such streams are owned by the states and held in trust for public use up to the normal high water mark. Therefore no one can own the bottom of the river no matter how much of the surrounding land is private. It is illegal for the state to sell or in any way protect these lands for the sake of landowners. This is accprding to the supreme court of the United States.
However Oregon has seen fit to come up with it's own way to designate what rivers are Navigatable. Getting a river listed as navigatable requires months of swimming through beaurecratic hoops and endless red tape when all is needed for federal law is to determine if legally navigatable is simply to demonstrate that the river can indeed be floated.

So according to the state you own it but according to the feds it is impossible to be owned privately.. It is a floatable river isn't it?

[ssteelheadsteve]

If your deed reads "to the middle " of the stream and it is or had to potential to be declared navigable under federal law then you need to sue your title company before they go to the legislature to ask for protection.They will shortly after the Sandy is declared navagable.Followed by the John Day and others.Many deeds read to a "meander" line which can change with high water or marriage to a local official's relative.
With the clout landowners have I would not be surprised to see the state land board declare many navigable rivers as non-navigable.The land board CAN overrule a federal law.If they go this way the state will pay legal fees to keep you out of your favorite stream.Someone else will have to pay to defend your rights.This Land Board thing is really screwy.

[garyk]

This is an important topic but very tangled by Federal Law, State process, bad/invalid deeds, and counties collecting taxes on property covered by invalid deeds or claims.

Basically, some people are paying taxes on property (riverbottom) they do not own and could never have legally been conveyed to them due to the state's underlying ownership.

The Assoc. of NW STeelheaders have been spending time and money fighting to maintain the public's access rights. Check out http://www.nwsteelheaders.org/
for some more info.

[V. Green]

Rivers and streams are reserved for public use by Federal law and by the Oregon Constitution. It just seems that if you want to exercise your rights you have to fight for them in court.

Besides the federal law, the Oregon Consitution states the following:

"the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use."

see below for full Article of Constitution

Section 18. Private property or services taken for public use. Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use. [Constitution of 1859; Amendment proposed by S.J.R. 17, 1919, and adopted by the people May 21, 1920; Amendment proposed by S.J.R. 8, 1923, and adopted by the people Nov. 4, 1924]

taken from: http://bluebook.state.or.us/state/co...titution01.htm

[Bubzilla]

This is a topic that always generates a lot of confusion. Most of it seems to stem from incorrectly equating navigability for purposes of title with other public rights of access. To say the least, they are not mutually exclusive, nor is the extent of the rights they guarantee necessarily the same.

The federal test of navigability for purposes of title is just what its name implies: it's a federally created standard which determines who holds title to the bottom and banks of a particular waterway. Although necessarily more complicated in application, it essentially asks whether a waterway was in fact capable, or "susceptable," of use in commerce, as that term was defined at the time of statehood. While it's not as simple as a showing of floatage, it's also not so strict as to require a heavy commercial use. Currently, there are ten rivers and streams, or more accurately sections of ten rivers and streams, that have been formally determined navigable for purposes of title here in Oregon. The Necanicum is not one of them.

On the sections of the ten waterways determined navigable for purposes of title, the public enjoys a right of access to the normal high water mark. That right includes virtually any conceivable recreational use, but necessarily includes the right to float, wade, and fish. But remember, there are only ten waterways that currently fall into this category.

Fortuanately for those of us who fish or otherwise enjoy the recreational opportunities of Oregon's free-flowing waterways, the fact that a river or stream may not be navigable for purposes of title, or perhaps more appropriately simply hasn't been formally declared navigable, does not mean that the public enjoys no right of access. Oregon law also recognizes floatage easements which permit the public to float on rivers and streams where the state does not necessarily hold title to the bottom and banks. The Necanicum would currently fall into this latter group. On these waterways, the public is free to float--and fish from floating devices--even if their right to otherwise recreate remains in question.

There used to be several excellent Online resources that discussed the various legal issues involved with determing the extent of public access rights on rivers and streams, but I can't seem to locate some of them now. The link provided is to a short article with a good overview of how the law differs between western states, however. Back in law school, a classmate of mine wrote a law review article on this subject, if I can find the cite I'll post it later.

American Whitewater

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[BUGLEMAN]

The Federal test is the only one to determain "navigability". It has nothing to do with mining, taxes, or titles and deeds. You have to look at commercial uses of a river in the 1850's, you goof balls, that is the test for navigability. The state of Oregon is wrong and is bending to farmers, cattlemen etc on the navigability thing. I am tired of this BS! Steeliesteve, sue your tittle company, what a crock! Most likely if you can run a canoe down a river it is navigable.

Why do you think these rivers haven't been closed by the owners, police ect? It is because they can't. Why did the greedy pig land owner settle the lawsuit on the John Day river (I think that is the place). They had no case. The same goes with all the small coastal stream. Some day a greedy landowner will **** of the wrong guy. One with money and he will counter sue and win. End of subject. I say don't back down to a landowner and if they pull a gun call the police and press charges.

[Cohodependent]

On the upper Crooked River the ranches have closed all acsess to the river. At one point there is a fence strung across it. Including steel fence post. I have always wondered about the legalities of that fact. There is some great fly fishing up there but you need to get the permission from the ranchers, and that is getting harder all of the time.

[OneLastCast]

Excellent summary Bubzilla, . Actually everyone has made some good points. I do however disagree with Buglemans assertion that it has nothing to do with titles or deeds. In some locations the State of Oregon has granted title through deeds to certain tide lands or areas between the high water mark and the low water mark. This would indicate that a thorough title search would be necessary to facilitate the establishment of ownership. And then there is the subject of avulsive action of the river that can change the location of the water but not necessarily the ownership of the land underneath.

As far a being a self serving landowner (posted several months ago regarding the same topic) and now a greedy pig to boot, I guess I meet the bill. I, however, have never met many landowners that were not self serving when it came down to their private property. If you feel that you are not so self serving then you should build a swimming pool, basketball court, complete with lights, or whatever in your backyard and allow any friend or stranger unrestricted use of it. Show us your benevolence.

I have posted on this subject several times and agree that if the state originally owned the river bed than no compensation to the adjoining land owner OTHER than the repayment of back taxes should be required. I also agree that if the river is determined navigable then the public has every right to the bed and the banks below the ordinary high water line. I also feel that public ownership extends no farther than the ordinary high water line and I get tired of arguing with people wandering in my back yard that they are trespassing. I get tired of getting up at daylight, standing by the bedroom slider doing my morning scratch to find three people in camo and waders staring at me in awe and admiration (okay, maybe I don’t see to well in the morning).

But to answer the original question, Fishing Freak, get a copy of your friends legal description as well as the descriptions of the adjoining property owners and read what they say. These are available at the Clatsop County clerks office or check with a local title company. If the description reads to the center of the river, or the thread of the river with no restrictions or easements, it still isn’t clear what she really owns and it would be best to error on the safe side and assume that your friend owns to the ordinary high water line. This line is often marked by the transition of aquatic plant to upland plants. Above that line it is private property and you can act as you wish. Better yet, get a survey from a reputable surveyor and consult an attorney.

OneLastCast