Old River

[tunica]

Don, when you talk about "Horseshoe" are you talking about Old River at Stovall in Coahoma County on the Mississippi side of the River? I've never heard that body of water called by that name, and I have hunted in Coahoma County all my life. Just curious.

naw he be tripppin in arkie land

[Money]

IT'S PUBLIC!!!!!

If it's not public it's pubic baby !

[bigwater]

i signed a 5 year lease for old river in 2002.. my leaseholder was a fellar named bryon barrett!!!

[Dennis Riecke FW15]

I recently asked some attorneys in Mississippi to research the public vs. private water issue in oxbow lakes. If the case was brought in Mississippi, the outcome may have been different. This information has been provided to the Arkansas Attorney Generals Office.

I think that your belief that oxbow lakes are public waters is correct, for the reasons given below.

Oxbow Lakes

An oxbow lake is formed when a meander in a river or stream is cut off from the main channel by an avulsion. Oxbow lakes formed by avulsions in a meandering river, are common in Mississippi on rivers including the Mississippi and the Pearl, and are often excellent sites for fishing and boating. Typically they are hydrologically connected to, and seasonally rise and fall with, the river that created them.

The Law Pertaining to Public Waters

The public has the right to use public waters for boating, fishing, and other uses. The Mississippi statutes define “public waterways” in such a way that it appears that only streams can be public. However, the Mississippi Supreme Court in Dycus v. Sillers observes that the statutory definition does not necessarily exclude other types of waters, such as lakes, from the legal status of “public waters.” While discussing the oxbow Lake Beulah in Bolivar County in that case, the court suggests that all oxbow lakes are public waters, and that members of the public accordingly have the right to use them “to [their] heart’s content, subject only to a like use by others and reasonable regulation by the state.” The court even goes so far as to declare that “the public right to waters formed by an avulsion is as great as any other public waters.”

Other cases, as well as opinions of the Mississippi Attorney General, support the Dycus view that oxbow lakes are public waters. In State Game and Fish Commission v. Louis Fritz Co. the Mississippi Supreme Court held that the private riparian owner of over ninety percent of the lands beneath a lake could not exclude a state contractor, who gained lawful access to the lake from another riparian landowner, from clearing the lake of predatory fish. While the case appears to involve an oxbow lake (South Horn Lake in DeSoto County), the court did not explicitly address the public/private status of the lake; rather, it held anyone who gains lawful access to a lake (that is, who does not trespass to get there) may make use of the surface of the lake for boating and fishing so long as they do not interfere with similar use by others who are entitled to use the lake. A riparian landowner may own the bed and banks of a natural lake, but he does not own the water or the fish in it. The state owns the water and fish for the common benefit of all its citizens.

In 1991 the Mississippi Supreme Court decided in Ryals v. Pigott that the Bogue Chitto River is a public waterway. The portion of the river in question did not meet the statutory mean annual flow requirement; nonetheless, the court found it to be a public waterway because it is “navigable in fact.” The court rejected as too restrictive the obsolete “steamboat carrying two hundred bales of cotton” definition of navigability found in Miss. Code § 51-1-1. Instead, a water body is “navigable in fact” if it can be navigated by “loggers, fishermen and pleasure boaters.” The court indicates that lakes, as well as streams, can be navigable waters under the law. Waters that are navigable in fact are subject to public use under the Equal Footing and Public Trust doctrines.

Under the Equal Footing Doctrine (erroneously referred to in Ryals as the “Equal Footings Doctrine”), the title to the beds and banks of navigable streams passed to newly-formed states at statehood. States may, with some restrictions, pass title to these lands to private landowners, but the public retains the right to use the navigable waters for commerce, fishing, and boating under the Public Trust Doctrine. The Ryals court observed that this public right cannot be withdrawn “by legislative enactment or judicial decree.” In other words, the legislature can sell or give away the land under navigable waters but it cannot sell or give away the public’s right to use those waters.

None of these cases explicitly decided the public/private status of an oxbow lake. However, when these cases are read together the reasoning suggests very strongly that the Mississippi Supreme Court would consider oxbow lakes to be public waters. This view seems to be shared by the Mississippi Attorney General’s office, which has issued several opinion letters on the subject. In a 1993 letter to Dr. Sam Polles of your agency the Attorney General quoted with approval the language in Dycus that indicates that all oxbow lakes are public. In separate opinions to the Mississippi Gaming Commission, the Attorney General declared that oxbow lakes are navigable. These letters provide additional strong support for the position that oxbow lakes are public waterways.

Prescription

The Dycus court declared that, even if they are not otherwise “navigable” or “public,” oxbow lakes may become public waters by the doctrine of prescription. Under the doctrine of prescription, private property may become public if it is used “under a claim of right, openly, notoriously, peacefully, continuously and uninterruptedly for in excess of ten years.”

Conclusion

The relevant law strongly indicates that oxbow lakes that were formed by navigable waters or public waterways are public waters. Therefore, a member of the public has a right to use them for, at the very least, boating and fishing, provided he or she does not have to trespass across private land to get there. (If a public lake is entirely surrounded by private land there may be some question whether the public has a right to cross the private land to access it; I have not addressed that issue here, but would be happy to look into it for you in the future.)

[booger]

That's what I'm talkin' 'bout, can I get an AMEN!

[gyver]

good job but lets not forget hunting. hunting has to be in there somewhere or we'll never hear the end of it.

[Dennis Riecke FW15]

Gyver,

Hunting, like Prego --- it's in there. Hunting, Fishing and all recreational pursuits are covered in these waters.

[qckmstr]

i was told it's like this.. if they can show where taxes had once been paid in the past on the land under the water that they now claim to own then the water/land is considered private.. then i've heard if it's accessable by boat when the river is lower than flood stage then it's public.. who knows ?? i've never taken the time to make the calls to get the answers..

[tunica]

i was told it's like this.. if they can show where taxes had once been paid in the past on the land under the water that they now claim to own then the water/land is considered private.. then i've heard if it's accessable by boat when the river is lower than flood stage then it's public.. who knows ?? i've never taken the time to make the calls to get the answers..

think the last thing you said is incorrect...if that fella that told you is correct any land can be public if accessable by water below flood stage I'm hunting Nail Bayou this year and they can go jump in the creek

[JLT]

I was told by a Louisiana GW that patrols the waters around our camp on the river that the newest cases are going in favor of the landowner if he can prove that he has been paying taxes on the land under the water. At least that is how I understand what he told me. I have taken it to the point of getting a lawyer involved to do the research, but unfortunately I can't afford that at this time. I was told that Dr. Polles was trying to clear this question up for good, but I haven't seen any sign of a clarification.

[tunica du4u]

One stupid question on a legal sense on what was said

The court rejected as too restrictive the obsolete “steamboat carrying two hundred bales of cotton” definition of navigability found in Miss. Code § 51-1-1.

how does a court, even the state supreme court reject as "too restrictive" a law that is still on the books in the state code. It takes legislature to change that and the judges duty, I would think, is to apply law as it is written, not as their personal opinion. Only ask that as the local pros attorney used that paricular code successfully in several cases here in recent years. Board of supervisors here refer to that code often in maters brought to their attention ie: lauching boats in Beaver Dam and other lakes where lake comes to roadside, which is county ROW, (40" from c/l of county road, 60' from state/us road)

[tunica]

One stupid question on a legal sense on what was said

The court rejected as too restrictive the obsolete “steamboat carrying two hundred bales of cotton” definition of navigability found in Miss. Code § 51-1-1.

how does a court, even the state supreme court reject as "too restrictive" a law that is still on the books in the state code. It takes legislature to change that and the judges duty, I would think, is to apply law as it is written, not as their personal opinion. Only ask that as the local pros attorney used that paricular code successfully in several cases here in recent years. Board of supervisors here refer to that code often in maters brought to their attention ie: lauching boats in Beaver Dam and other lakes where lake comes to roadside, which is county ROW, (40" from c/l of county road, 60' from state/us road)

i thought beaver dam was public? you mean I've been tresspassing

[tunica du4u]

i thought beaver dam was public? you mean I've been tresspassing

yeah buddy git ur booty caught out there by the right person...you know the right people tho.... no really, none of Beaver Dam is public. That was one of the board things I was talkin bout, they put those signs up on Seabrook Rd. "No Stopping or Parking at anytime" for that reason.

[Wingman]

lauching boats in Beaver Dam and other lakes where lake comes to roadside, which is county ROW, (40" from c/l of county road, 60' from state/us road)

I just wrote one on one of those scenarios the other day. You can't put in from a ROW and go across a lake. Some people don't understand that.

[tunica]

i thought beaver dam was public? you mean I've been tresspassing

yeah buddy git ur booty caught out there by the right person...you know the right people tho.... no really, none of Beaver Dam is public. That was one of the board things I was talkin bout, they put those signs up on Seabrook Rd. "No Stopping or Parking at anytime" for that reason.

Always been always will be that way but man the fishing sure is good around those cypress trees. I know the right people family but they done told ME I aint welcome on their land.