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Waterway Laws - Do you know them?

First guys, I love bowhunting, but I have another deep passion for fly fishing. I've fished WV avidly since the very early 90's, but since I'm now living part time in my home state I've started exploring local opportunities for wild trout. My cousin, who was my side kick throughout the 90's, has been a State Trooper since the early 2000's came over the fourth for a get together at the property. While there he dialed up the warden for Greenbrier/Monroe counties and I had a long discussion with him which eventually led me to researching the information I got from him during the discussion. As it turns out, waterways are not the landowners property if the creek can be floated anytime during the year. If the creek starts on your property and could never be used as a travel way, you can post it because you own the water bed much like a pond. Apparently, creeks were used to move product (trees, furs....) to market, highways before pavement was laid down. So, much like Montana and a few other western states, you cannot post a creek passing thru your property as long as passer stays within the high water marks.

So, two days later I went fishing in my new home county. Two days later I went again to the same creek, different spot, staying in the water getting in and out of bridges, when I was approached by a local, though not a WV local but a transplant. This guy berated me, called me a poacher, stuck his fingers in his ears when I tried to respond.....I wanted to throw his rear off the bridge, he would not let me be nice to him, just would not. I tried to explain the waterway laws in WV and my discussion with the warden, but no way no how he was going to listen. He came over and checked my creel bag that I only carry a Dr. Pepper, a moon pie, and a bottle of low dosage aspirins (just in case, don't wanna go thru that again). By the way, I won't say I never, but I 99.95% don't keep the fish. I just want to catch a wild fish in my county in lieu of travelling an hour or two away, just a place I can go for two hours of recreation.

That's what I want to know, do you actually know your rights when it comes to water ways. And, who would actually shoot my rear and hide my a$$ in the bush? Most WV's seem extremely pleasant when I run into them and I'll sit with them a spell when asking for permission to park on their property. I always tell them I don't keep fish, unless you'd like me to keep you one for dinner.

I actually did not know that. It's not in the regs. Lol. Where'd do you go to look up those laws? I Love to flyfish too. You had more patience than me with that guy. What was it he didnt like? I would have ignored him and made him call the game warden and he could have explained it. And no I would not shoot you and throw you in the bushes. Ruins the fishing. Lol. Be careful and stay safe .

I guess it's not in the regs because it's very old and it's open to some objection by the warden. This warden told to not worry, just fish. Now, having said that, Jim Justice owns some property on a much larger creek, Second Creek, where the rule doe not apply. The warden to stay off the property or you may be escorted off. Maybe there's a rule which trumps the byways, possibly the rule of more money. Since he stocks it, I don't care to be on it anyway. To answer what the jerk didn't like, I guess he owned a couple acres on the creek and maybe he didn't like anyone fishing it but himself. There is another creek not more than a minute down the road where I spent 2 hours talking to, he was tickled I stopped by to ask permission to cross his property. He also told most people would have no problem me fishing his creek, even rode his ATV around and watched me fish. 90 years old and looked great, and just as jolly as could be. By the way, did you join MAHA this year. I know we talked about it last year.

Yea just as I figured. Open to interpretation is not always good. I did not Join. Was in the process of doing that when this Covid Broke out and some states were not going to sell out of state tags. I will be joining for next year. Can't wait. New Camper is itching to go. LOL

With everything changing because of covid, I forgot to get my Kansas draw application in. I figured to buy leftover any sex permit when they came out, but shortly after the draw Kansas announced not tags were left over. I assume the announcement resulted from the virus, I've never seen Kansas not have them at least in the zone I hunt. So, Missouri this year. I did have a good friend join this year along with his preacher.

I'm looking forward to it. Good luck. I'll call Ya sometime.,

Koogie,

I MAY BE MISTAKEN, but I had a friend explaining this to me the other day. He is a land man and usually is very knowledgeable about land owners rights. The way I understand it is you can go down a stream thru private property as long as you never touch the land under it. In other words you cant walk on some ones property to get in the stream, and you can not walk in the stream. you must be able to float the total length. Not saying that you are wrong, but that you might want to do some more research before possibly finding out that you were misinformed.

Turk, believe me I have tried to find documents supporting on way or the other and it's not so easy. I do know I was informed by the game warder from for Greenbrier and Monroe county, but the guy that shows up with a shotgun may be more convincing at the most immediate time.

They can’t shoot you for trespassing. Legally. Especially when you were just looking for your dog. Lol I wouldn’t go by what a DNR guy says but by written law.

Yes Babysaph, who arrests you, the game warden? When I talked to him he said that is who they'd call and he would explain it to them. I'm just trying to do what is right, but the laws if fuzzy at best. And Turk, the land owner owns to the bank or high water mark, then if he owns across the creek, it starts a the opposite high water mark leaving the water and the stream bottom and the rocks along the creek as owned by WV and the people of WV as common property, the same as them building a road thru you piece of your property. If that happens, you now own you property to the road easement, the road is not your, then you own the land on the other side of the easement.

The whole issue is, is the creek floatable at high water. Now, like I stated above, depends on the viewpoint of who's butt is riding that log down stream. Again, WV seems to be like Montana about running water. But again, even there, a wallet may trump a local official's viewpoint.

I guess you have to look in the past to understand the actual riparian laws. You have land on a waterway, then Daniel is a trapper who packs his hides on a canoe, boars his vessel and floats his canoe the nearest town or road. Sometimes he had to get out of the canoe and drag it over some rapids or rocks while on your property. You did not have a right to yell from the shore, leave you crap there cause you stood on the creek bottom and it's mine. Same issue floating logs too. You can not dam it up, put a fence across it to stop the logs or stop ole Daniel from his chore of selling hides or logs. Today, its still the same with a fisherman, or a whitewater recreational craft. It's commerce which the laws were designed around.

Ok Turk, here's some of the info I dug up:

Ok Turk, here's some of the info I dug up:

Huh, more reading. I must apologize to the State of Virginia. Apparently I heard about the legal issues regarding the Jackson river. I just read an old article which dealt with deeds and grants from the Kings of England and without checking into it, believing the state was siding with the landowner rights and grants from our ancestors from good ole little England. Inversely, Virginia does have common wealth rights and WV's rights were patterned from them, as it seems the rights tended to follow most of the states regarding waterways. I assume that's why Va and Ky have common wealth in their names, duh duh. So, a fisherman or recreation user does have rights to cross your land via a stream or riverbed. Landowners do not own the creek bed or river bed up to the highwater mark. Keep that in mind if you see an avid fisherman wading up a river on you property, don't shoot me and I'll possibly share my moon pie with you should we meet.

Koogie, I actually registered on Bowsite.com so I could respond to this thread. First, I am a lawyer in WV and wouldn't begin to claim I know the answer to this topic, mainly because much of the answer is based on what a jury might decide is historical fact. Second, property law is extremely complicated in WV. You should avoid giving advice on one of the most complicated areas of law in existence based on websites you find on the internet. Someone could end up with a criminal conviction. Third, "navigable" in WV does not necessarily equal "floatable." The mere fact that a stream can be floated at some time of the year certainly does not make the stream bed property of the State. In fact, navigable often relates to whether or not the stream was ever used for commercial purposes, such as floating logs in the 1800s. If you want to research this issue more thoroughly, you're going to need to search the Supreme Court of WV decisions on navigable waters and not websites. Your blanket statement about landowners never owning the stream bed is simply not true as a general rule. Sometimes they do and sometimes they don't. If you want to risk a trespassing conviction that's fine. Just understand, there's no one answer to this question as some of the above posts imply.

Bingo. What a jury might decide. That is why cases are settled before going to trial. It would be simple to have a black and white law but that would Be too easy. If the jury does not like you regardless of what the law says you are guilty. You can do what the good ole boys do and fish and take your chances. Pay you fine and keep fishing. Lol

Travis, first I'm not giving advice rather seeking answers. Reading articles I find instances where courts are siding with the term floatable versus navigable, and floatable meaning at any time. You can't possibly give possession of a piece of property part time. I'm sure there are articles out there siding the opposite. Commerce seems to have great deal of influence, if one wants to argue with the courts. But the American Whitewater Assoc. is backing the commerce argument for both fishermen and white water canoeing, rafting, and kayaking. Now what I am doing, is trying to determine whether I can indeed fish a creek or not. I talked to the only warden we have and he tells me one thing and I read articles and laws which seem to lean towards his statement. On the other hand, I'm sure some landowners feel they are right too. I've stopped and talked to one landowner and he said I was the first ever to stop and ask and was super friendly with me, I even felt like I made a valuable friend. Then I had one who berated me, called me a stinking poacher. What I really like to know is, what do I say to a guy like that and what leg do I have to stand on when I say it. Now, I bring this to the attention of several landowners on Bowsite hoping to see what they feel is right or what they know as fact. Advice, long way from advice mister. I'm starting to agree with Babysaph's statement concluding your statement. Besides, you would think the deed to a persons property would clarify the riparian ownership on their property and probably would had a lawyer had not gotten their hands on it in the first place.

Koogie, I want you to know I don't mean to attack you. I'm just trying let folks know there's significant risk of criminal prosecution in deciding to fish a stream through private property. You are welcome to give it a shot if you wish. The problem with this issue is that there is no answer. It would be great if there was a clear cut black and white answer, but there's not. You can push the issue with a landowner all you want, get cited and then spend thousands of dollars in legal fees trying to prove stream bed ownership to a court and/or jury on that one particular stream. If you win, if you're found not guilty, you're still out thousands of dollars. My only point in responding is to simply point out to other readers that pushing this issue is a very risky proposition. One final comment and then I'm done. The NR police officer in your county doesn't decide what the law is. A court decides that. Police officers and NR police officers get it wrong all the time. This is one of the reasons prosecutors often dismiss criminal charges. Also, court decisions from across the country have no binding precedential value in WV unless they are Fourth Circuit or SCOTUS decisions. Finally, the American Whitewater Assoc. website is actually pretty good on this issue. It repeatedly states the law is unclear and uncertain. That's the bottom line.

Point well taken. I would hate to pay 100 dollars just to find whether a stream has any wild trout in it. I also know, certain people can dictate law in certain circumstances. I know Potts Creek is private and so is portions of Second Creek. Other sections one is welcome or at least tolerated. My only take is who has the money to push their narrative. Then again, it's only a 100 dollar offence like Babysaph stated.

Like you guys, I have been around a while and have seen a lot. The biggest problem as I said, is that there is no black and white law. The only written law I see in the regs is that you can't trespass on someone else's land without written permission. And as far as my comment about the good ole boys I have actually herad them say it. In fact I heard one say it just today. He said it's easier to ask for forgiveness than permission. He actually said he could usually talk his way out of it but if he asked permission and was denied then he couldn't lol. I also have heard people say it was cheaper to hunt on someone else's property than to lease or buy land. How you going to stop guys like that? The fines are not steep enough and even if they were they couldn't pay em and they know they will rarely go to jail if at all. You could do what they do in Africa and shoot the poachers and let the lions take care of em. Lol

That's nonsense Babysaph, there are no lions in WV. But I understand what you are getting at. I do remember, though, a time when I was a boy running the hills and valleys of WV. A time no one would challenge your presence camping, fishing, squirrel or rabbit hunting. Was a time when all was right with and simplicity ruled the day. I remember the same deep in southern Georgia when I moved there in 1976, and I miss it dearly.

Monroe county lion from a few years ago

OK, Greg, we need the story on that one. LOL

Lol

My comment was tongue in cheek of course about the lions. However when I hunted in Zimbabwe that is how the handled poachers. No DNR to call. My point is you can not stop the good old boys from doing what they want unless you do that.

My comment was tongue in cheek of course about the lions. However when I hunted in Zimbabwe that is how the handled poachers. No DNR to call. My point is you can not stop the good old boys from doing what they want unless you do that.

My comment was tongue in cheek of course about the lions. However when I hunted in Zimbabwe that is how the handled poachers. No DNR to call. My point is you can not stop the good old boys from doing what they want unless you do that.

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