http://www.newscenter1.tv/story/35572170/bill-may-close-off-certain-south-dakota-lakes-to-the-public
Thoughts? As a non farming sportsman I generally support public access to public property. Seemingly the typical landowner could prevent access to the lake, thereby preventing use of the water. But being the midwest we have 66ft public rows on every section line, so I would assume many lakes have access this way.
Texas owns the water stored in lakes when the capacity is over 10acre feet the owner of the land must pay a small yearly fee to store the water and abide to maintenance guidelines of the dam and spillway to prevent breaching and destroying anything downstream.
Private property owners have full use of the pond or lake and can stock with whatever fish they want or not.
Use to water livestock and irrigate crops and lawns, clean and wash equipment and pretty much as they want.
The COE lakes are Federal and they kinda make things up as they go as to access and use.
I would foresee many dams being broken if that South Dakota bill became law.
A Harris, post: 430851, member: 81 wrote: Texas owns the water stored in lakes when the capacity is over 10acre feet and the owner of the land must pay a small yearly fee to store the water and abide to maintenance guidelines of the dam and spillway.
I would foresee many dams being broken if that South Dakota bill became law.
These are not dams. This comes from our pothole region. What has been happening the last several years is low spots have filled up with water over farm ground, some have gotten so big, the public staring using them. Original surveys here were done during a relatively dry era.
We have many natural lakes in NE Texas.
Caddo Lake is the largest and there are numerous Post Oak flats full of water across many counties.
Lakes formed on private property have remained private.
I can not see how anyone could legally access the water without crossing private land unless it is from a private access road where the water is deep enough to go by boat.
A Harris, post: 430854, member: 81 wrote: ...I can not see how anyone could legally access the water without crossing private land unless it is from a private access road where the water is deep enough to go by boat.
In Oklahoma most water resources are also owned by the public. In the case of a pond or lake built by the SCS that applies also. But case law has provided that while a property owner cannot deny public access to a lake surrounded by private property; said property owner may restrict access to specific areas (drives and roads) as they cross private property AND may charge entrance fees for the maintenance of said fences and roads. Some of my best fishing holes have a gate with a welded piece of pipe on the post with a small slot where you shove a buck or two for the owner's "trouble".
I always put more in the can than is posted. That way if I get to talk to the owner I can tell him "the ten dollar bill in the pipe is mine"....that will usually get you some good info on where the crappie holes are located. 😉
Whether or not there exists a public right to use the lakes (the Public Trust)depends upon the status of navigability of the water bodies at the time of statehood. That a lake was not meandered may or may not be dispositive of the navigability status for title purposes, depending on the instructions to the GLO deputies and jurisdictional case law.
State law (statute or case) may direct the presumption of navigability for title purposes based on whether or not the GLO meandered the water body. State law may also address the ownership of the water within the water bodies as a separate matter from title to the bed of the lake. Public ownership of the water does not necessarily guarantee the right of the public to access and use the lake unless state law has specifically made it so. That right doesn't come from the Public Trust Doctrine on non-navigable waters.
I don't know the State law of SD, but since this bill exists, I assume that there are presently laws on the books that provide for public access to such lakes and that designate the waters within the lakes to be owned by the State. I also expect that there is a provision in the bill that would preclude claims of prescriptive easements or rights of way for the public to continue to access those lakes.
Similar things have been happening along the Mississippi River, at least in Mississippi. Oxbow lakes that many people (including me) have been fishing their entire lives have become private property. Landowners, mostly wealthy hunters, have bought all the property around the lakes, thereby removing any public access to the water. The water remains public, but the public can't access it. The Department of Wildlife, Fisheries, and Parks says they have attempted to acquire public boat ramp access to some of them, but with no success. The people buying the property have too much influence.
eapls2708, post: 431125, member: 589 wrote: Whether or not there exists a public right to use the lakes (the Public Trust)depends upon the status of navigability of the water bodies at the time of statehood. That a lake was not meandered may or may not be dispositive of the navigability status for title purposes, depending on the instructions to the GLO deputies and jurisdictional case law.
State law (statute or case) may direct the presumption of navigability for title purposes based on whether or not the GLO meandered the water body. State law may also address the ownership of the water within the water bodies as a separate matter from title to the bed of the lake. Public ownership of the water does not necessarily guarantee the right of the public to access and use the lake unless state law has specifically made it so. That right doesn't come from the Public Trust Doctrine on non-navigable waters.
I don't know the State law of SD, but since this bill exists, I assume that there are presently laws on the books that provide for public access to such lakes and that designate the waters within the lakes to be owned by the State. I also expect that there is a provision in the bill that would preclude claims of prescriptive easements or rights of way for the public to continue to access those lakes.
The issue here is not navigiblity. These lakes are not navigable. The land under the lakes is private. If they were navigable it would be state land. Apparently under South Dakota law there is a public right to use the water lies over private land.
Around here the only waters on private land that the public can access is navigable rivers, and even then you are not allowed to cross private land to access.
All other ponds/lakes on private land are considered private as in - keep out!.
aliquot, post: 431215, member: 2486 wrote: The issue here is not navigiblity. These lakes are not navigable. The land under the lakes is private. If they were navigable it would be state land. Apparently under South Dakota law there is a public right to use the water lies over private land.
That's why the lengthy explanation. The public does not automatically have a right of use and access if the lakes are not navigable, unless that right has been declared in State law. And, whether or not the GLO meandered a water body is not necessarily dispositive of its navigability status for title purposes, although by law in many states the existence or non-existence of meanders invokes a rebuttable presumption of that a water body is or is not navigable.
imaudigger, post: 431298, member: 7286 wrote: Around here the only waters on private land that the public can access is navigable rivers, and even then you are not allowed to cross private land to access.
All other ponds/lakes on private land are considered private as in - keep out!.
In many cases, that's true, particularly of small lakes or ponds fully within private properties. But it isn't true for all water bodies which are non-navigable for title purposes.
See http://scholar.google.com/scholar_case?q=people+ex+rel+baker+v+mack&hl=en&as_sdt=4,5&case=6290985561263531223&scilh=0&apos ;">People ex rel Baker v. Mack, 19 Cal App 3d 1040 (1971) and http://scholar.google.com/scholar_case?q=people+ex+rel+younger+v+county+of+el+dorado&hl=en&as_sdt=4,5&case=10605560311542747695&scilh=0&apos ;">People ex rel Younger v. County of El Dorado, 96 Cal App 3d 403 (1979)
In Baker, the Court ruled that if a waterway is physically navigable by small craft propelled by motor or oar (presumably paddles are included within the term "oar"), then under CA State law, the public has a "Public Navigational Easement", which is limited relative to the public's rights to use navigable (for title purposes) waterways under the Public Trust Doctrine, but is similar in that it is presumed to exist when the prescribed condition of physical navigability exists.
In Younger, the Court reaffirmed the Public Navigational Easement on waterways which are non-navigable for title purposes yet physically navigable by small (in this case, recreational) craft, and stated that a local government could pass laws that reasonably protect the waterway from misuse, littering, etc., but could not pass ordinances that effectively ban the public's ability to use such waterways.
Both of these cases, other cases, and all other applications I am aware of of the Public Navigational Easement have been on streams or other bodies of water that do afford one or more points of public access via public roadway or other public property. I am not aware of it having been asserted to water bodies that are fully within private property.
If a water body is navigable for title purposes (I specify the "for title purposes" part because there are many definitions of navigability for differing purposes and different tests, or thresholds for each type) and the only feasible access to it is across private property, the State Constitution allows for the State to exert eminent domain if necessary to secure that public access. I am aware of one recent case where the State was prepared to push that provision (the circumstances were such that good cases could have been made both for and against the disputed access route and form of access, IMO), but the landowners and the State either are negotiating or have negotiated an access agreement.
The point being that it's not quite as black & white as your statement suggests, but like almost all other general questions of boundaries and land rights, the initial answer in almost all cases is "it depends".
This subject is SO State Specific (especially out here in the West), that I doubt that any case law from States other than South Dakota have much to really offer. Just my 2-bits.
Loyal
eapls2708, post: 431522, member: 589 wrote:
The point being that it's not quite as black & white as your statement suggests, but like almost all other general questions of boundaries and land rights, the initial answer in almost all cases is "it depends".
While I do appreciate your educated contributions, for us common folk that don't get involved with attorneys and lawsuits on a regular basis - it's pretty black and white. Climb the fence/gate without permission and suffer the consequences.
Loyal, post: 431527, member: 228 wrote: This subject is SO State Specific (especially out here in the West), that I doubt that any case law from States other than South Dakota have much to really offer. Just my 2-bits.
Loyal
I went off on a CA tangent in responding to a CA comment. Didn't mean to imply that CA case law applies in SD. You're absolutely right, once it gets to state-specific issues in water boundaries, applying case law from a different state is even more dicey than doing so for other boundary matters.
eapls2708, post: 431576, member: 589 wrote: I went off on a CA tangent in responding to a CA comment. Didn't mean to imply that CA case law applies in SD. You're absolutely right, once it gets to state-specific issues in water boundaries, applying case law from a different state is even more dicey than doing so for other boundary matters.
Evan,
No worries mate!
I did NOT mean to call anybody out specifically. My point was simple...IT DEPENDS.
WE all tend to view much of what is said, posted, linked, etc., from our own view of the world (how WE "do it" HERE, wherever HERE is).
Loyal 🙂
This article explains the issue a little better. They are not public lands, I don't think title of the ground is in question, but rather water on top of private land. Problem is the state gfp installed improvements on some with taxpayer money.