Flood waters are great!

[BigGun]

You may want to save some time and go toward the bottom. With flood waters like this you could print this out and keep it in the boat.

DOCN 000011507
DOCK 1996-0537
AUTH Larry Clark
DATE 19960830
RQNM Robert "Bunky" Huggins
SUBJ Department of Wildlife, Fisheries & Parks
SBCD 269
TEXT The Honorable Robert G. "Bunky" Huggins
Mississippi State Senate
104 County Club Drive
Greenwood, Mississippi 38930

Re: Hunting on Navigable Public Waters Covering Private Lands

Dear Senator Huggins:

Your opinion request has been received by the Attorney General's Office and has been assigned to me for research and reply. Your request states:

There are certain lakes in my district that have public boat landings, though portions of the lands adjacent to and underlying these lakes are privately owned. Because a question has arisen regarding the right of the public to hunt on these waters, I hereby request an opinion from your office based on the facts and questions set out below.

For the purposes of your opinion, please assume that the waters of these lakes are navigable. Private owners have record title to the adjacent upland and to submerged lands underlying the lakes. The private owners deraign their title from persons who acquired these lands by patent from the sovereign. The private owners pay taxes on the submerged lands and the State of Mississippi has disclaimed any interest in them. There are points where the public can reach the waters of these lakes without trespassing. The private owners believe they have a right to exclude the public from hunting waterfowl on those portions of the lake overlying private lands. This would be consistent with the statute which provide[s] that "(i)t shall be unlawful to hunt, shoot, or trap or otherwise trespass on the lands or leases of another after having been warned not to do so, whether in person or by posting of suitable notice in conspicuous places on such lands." Miss. Code Ann. Section 49-7-79 (1972). Do the owners of private lands which are submerged under public waters have the exclusive right to hunt on these lands? Does Miss. Code Ann. Section 49-7-79 (1972) apply to lands that are submerged under public waters?

The general rule of law is that the public has no right to hunt on public waters where the land underneath those waters is privately owned. The more difficult question is whether or not Mississippi follows the general rule.

Miss. Code Ann. Section 51-1-4 (1972, amended April 8, 1994) provides in part:

Such portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred (100) cubic feet per second, as determined and designated on appropriate maps by the Mississippi Department of Environmental Quality, shall be public waterways of the state on which the citizens of this state and other states shall have the right of free transport in the stream and its bed and the right to fish and engage in water sports.

(Emphasis added). This Office has previously issued opinions to the effect that the term "water sports" includes hunting, and thus Section 51-1-4 gives the public a right to the use of public waterways for hunting. MS AG Op, Polles (Dec. 6, 1993); MS AG Op, Tucker (Dec. 3, 1976). We previously stated that floodwaters of public waterways were part of the public waterway. MS AG Op, Tucker (Dec. 3, 1976). However, in 1994 the legislature amended Section 51-1-4 to add the following provision:

[Nothing herein contained shall authorize any person utilizing said public waterways, under the authority granted hereby,] to hunt or fish or go on or across any adjacent lands under floodwaters beyond the natural banks of the bed of the public waterway. Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway.

This language, of course, supersedes that part of our previous opinion respecting floodwaters of public waterways.

It should be noted that Section 51-1-4 applies only to natural flowing streams. But while the statute is silent with respect to public lakes and certain other public bodies of water, nowhere does it state that public waterways as defined in Section 51-1-4 are the only public waters where the public can exercise the right to fish and engage in water sports. Although Mississippi follows the common law rule that riparian owners own the beds of navigable freshwaters to the center of the stream, see Ryals v. Pigott, 580 So. 2d 1140 (Miss. 1990), cert. denied 502 U.S. 940 (1991); Dycus v. Sillers, 557 So. 2d 486 (Miss. 1990); Cinque Bambini Partnership v. State, 491 So. 2d 508 (Miss. 1986), aff'd sub nom. Phillips Petroleum Company v. Mississippi, 484 U.S. 469 (1988), navigable freshwaters have historically been available to the public for a variety of recreational uses. We find no distinction between public waterways and other public bodies of water when it comes to the public's right to hunt.

We therefore conclude that the public does have the right to hunt on navigable public waters covering private lands.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL