Judge rules much of Mississippi River off limits to anglers

[Don Miller]

Fighting Bayou is accessable via public road. Public or Private?

[mudsucker]

Fighting Bayou is accessable via public road. Public or Private?

Is there water on the road and is it at or near flood stage??

[Wingman]

you claim all water is "public"? you think property lines stop at waters edge? Ever hear of a "patent deed"? All those deeds over there run to the center of the lake! If one side doesn't own it the other does IT"S POSTED!

Not all water is public, just that in public waterways and oxbows. The land underneath is private. All deeds in MS run to the center of the waterway. They run to the center of every river in our state, but the water between the natural banks is public.

If a private landowner chooses to lock the gate on his private, pay-to-launch ramp, then that's his choice. But a private landowner can't regulate what activity the public participates in on a public waterway or oxbow.

I can just see the folks at Charlie's Ramp on Tunica telling people "you can crappie fish, but you can't catfish." Same goes for hunting. If it's public, it's public.

MDWFP doesn't set creel limits on private waters.

[Don Miller]

Rob,
I think you, me and Po Monkey need to test your theory about public waters on Beaverdam opening mourning. That way, when I have to fight for my life with a landowner, I'll have a game warden and lawyer to back me up. Are you game?

[Wingman]

You know I have to work opening morning.

[tunica]

I can just see the folks at Charlie's Ramp on Tunica telling people "you can crappie fish, but you can't catfish." Same goes for hunting. If it's public, it's public.

hahahaha Charlie stopping people from using the ramp only if they aint got 5 bucks. I've never seen him turn a buck away in the 20 plus years I've known charlie. heck Doris would ring the big Boys neck.

I do have the option on leasing the ramp and baitshop....Now I aint charlie and I will restrict duck hunters once I own the ramp. Except for My little buddies on MSDucks....WE can claim all the lake as OURS, wont take alot of money to cable the other three ramps either.

So Who Loves ME

[Super Black Eagle]

Rob,
I think you, me and Po Monkey need to test your theory about public waters on Beaverdam opening mourning. That way, when I have to fight for my life with a landowner, I'll have a game warden and lawyer to back me up. Are you game?

If you can drop in there in a parachute you might get away with it, any other way you are screwed.

[Don Miller]

Rob,
I think you, me and Po Monkey need to test your theory about public waters on Beaverdam opening mourning. That way, when I have to fight for my life with a landowner, I'll have a game warden and lawyer to back me up. Are you game?

If you can drop in there in a parachute you might get away with it, any other way you are screwed.

There is access from a county road.

[tunica]

Rob,
I think you, me and Po Monkey need to test your theory about public waters on Beaverdam opening mourning. That way, when I have to fight for my life with a landowner, I'll have a game warden and lawyer to back me up. Are you game?

If you can drop in there in a parachute you might get away with it, any other way you are screwed.

There is access from a county road.

yup and the bank aint steep at the bridge either

[Wingman]

you claim all water is "public"? you think property lines stop at waters edge? Ever hear of a "patent deed"? All those deeds over there run to the center of the lake! If one side doesn't own it the other does IT"S POSTED!

Here's what Mr. Moore had to say:

ATTORNEY GENERAL'S OFFICE
MIKE MOORE, ATTORNEY GENERAL
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. 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

Larry E. Clark Special Assistant Attorney General

I took this from an email I got from an attorney with the MS-AL Sea Grant Legal Program. He may have already posted this somewhere near page 1 of this thread. He specifically states that his email is not legal advice:

When Congress creates new states, the land underlying the navigable waters
of those states passes into the ownership of the new state under the Equal
Footing Doctrine. While the state can then pass title to the underlying
lands into private ownership, it CANNOT sell or give away the public's right
to use the waters above those lands for boating and fishing (although it can
reasonably regulate those activities). This is an aspect of the Public
Trust Doctrine, which generally prohibits the government from selling or
giving away certain common public resources to private parties for private
gain.

These laws
harmonize well with what the Mississippi Supreme Court declared way back in
1900: "All navigable waters are for the use of all the citizens, and there
cannot lawfully be any exclusive private appropriation of any portion of
them." (Pascagoula Boom Co. v. Dickson, 77 Miss. 587 (Miss. 1900)).

I also saved this email from him. If I were planning on fishing or hunting an oxbow in MS, I would save, print and laminate this one:

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.)

And finally, a word from the MDWFP attorney and Chief of Enforcement:

The rule of thumb is that all oxbows are public waterways. This is
bolstered by the presence of public boat ramps or other access for the
general public that is not restricted.

Be advised, that border lakes (with Arkansas) may be disputed. Clearly,
under MS law, the waters on the MS side of an oxbow that forms the boundary
(Old River in Stovall) are public. However, Arkansas law on this issue is
unsettled.

It is my interpretation of current MS law that oxbow lakes in MS are public
waterways. There may be exceptions, but I am not yet aware of any.

The foregoing is NOT an official opinion of the Attorney General of
Mississippi. Should you wish to obtain an Attorney General's Opinion,
please pursue that option through your chain-of-command.

---------------------------------------------------------------------------------

I concur with [our attorney's] opinion concerning the definition and use of oxbow public water. Even though an oxbow may be classified as public water, the public cannot use that water unless they have permission to access the lake across private land or by a public access or waterway that joins the lake (usually during periods of high water, but not always,). If the COE's constructed a dam between the river and the lake as a flood control measure, I suppose someone could pull their boat over the levee and access the the oxbow, but the issue will probably never be settled once and for all until someone takes it to court. The bottom line is that anyone can use public water to hunt and fish IF they have access to the water. If the oxbow is completely surrounded by private ownership and the oxbow is landlocked, then only people who have permission to get to the water can use it.

This is where I get my information. Get out your map, find a public access and stay in the water between the banks.

[Wingman]

I do have the option on leasing the ramp and baitshop

If you do I'll go in 50/50 with ya. That is a money makin' gig right there if I ever did see one.

[tunica]

I do have the option on leasing the ramp and baitshop

If you do I'll go in 50/50 with ya. That is a money makin' gig right there if I ever did see one.

Agreed But I get to sit in the golf cart and say 5 dollars and follow the red headed dude to your parking spot....I'll collect them money you operate the shuttle.

[Wingman]

Deal. But we gotta get rid of some of them sparrows. The martins stay.


On second thought...the sparrows eat the crickets left unattended in the boats....we would make a fortune on cricket sales if we kept the sparrows.

[tunica]

Deal. But we gotta get rid of some of them sparrows. The martins stay.


On second thought...the sparrows eat the crickets left unattended in the boats....we would make a fortune on cricket sales if we kept the sparrows.

sssssh dont let on to the sparrows. There very easy to get them to reproduce...currently I'm getting three hatches per year, within the next couple of years I'll have the correct breeding to increase it to 5 per yer.

Yea the martins stay too they cut the skeeters down a tad.

Wait till I get the minnows sharks perfected then ole Man we will make loads of money...to think one dozen minnows will include the minimum of two minnow sharks...I'll have them gone by the time boats get to OK pocket...you remember that floating bait shop in the pocket...I'm turning it back over this spring....TWO bait shops on the cut....pure profit.

[Wingman]

2 baitshops...that's ingenious.

We could also deliver hamburgers and pizza slices to the striper fishermen at the runout.