who knows the law?

[SoftCall]

my advice is free. buy a trail cam to snap a shot of the boat on the way in and out. get the numbers from the side and pics of the offenders. contact the game warden and discuss the situation. under NO circumstance would I ever attempt to obstruct the waterway with a chain or cable OR ANYTHING ELSE that can be hidden under darkness or by high water. it takes one incident of someone getting their neck broken by a cable or someone drowning after being thrown out of a boat by a sudden stop from an obstruction to land you in some serious trouble.

[grnhead1]

very true.. that was my 2 cents on the whole idea too but the others guys dont think about the consequences they just know they have had enough of it and i have also but it aint worth riskin something like that cause you never know when somebody has a kid in the boat

[Po Monkey Lounger]

grnhead1, IF your slough is physically separated from the WMA waters by dry land most of the time, and is only accessible from the WMA waters during times when floodwaters are present (in other words, the "WMA water/public water body" is outside of its normal banks, or at flood stage), then there should be no right of the public to hunt or fish in your slough. The only exception to this would be if your "slough" is an "oxbow" lake (see Rob's article for definition and description). The reason an oxbow is public is due to the common law principle of " once public, always public".

Most breaks (brakes sp?) and sloughs in the MS Delta, for instance, are land-locked, are not part of public waterways, and are thus private. IF your place fits this criteria, then you should not have any problem enforcing the trespass laws upon poachers. As others suggested, I would not deliberately try to set a trap to hurt such folks. While you have no duty to go out of your way to protect a trespasser, you should not intentionally try to harm them either. Turn it over to the law enforcement and let them do their jobs. Or, as someone else suggested, find out who they are and go file a criminal trespass affidavit to have them prosecuted. First, make sure your property lines and posted signs are well marked and visible even during high water.

[grnhead1]

thanks for the advice.. the game warden lives 2 miles from the property so i should just let him know whats goin on

[Deltaquack]

I don't happen to know if these sticky notes happen to represent the official law enforcement understanding of the MDWFP or not.

I'll put it this way, the MDWFP lawyer read my latest article with all of that sticky info in it and told me it was the most complete set of info on the subject he'd seen. The current Chief of Enforcement and the last Chief have both agreed with the info in the sticky. If you will notice, some of the info in that sticky was sent from the AG to the Executive Director of the MDWFP. I have personally been instructed not to write a trespassing ticket on an oxbow lake unless it is obvious that trespassing occurred on dry land in order to get to the lake or unless someone has gotten on floodwater that is outside the banks of the waterway. Does this mean you will not be taken to court by a landowner? No. What it does mean is that if you are hunting/fishing/trapping on an oxbow/ public waterway, you should not have any trespass trouble with MDWFP if you don't trespass to get to the water and you stay inside the natural banks of the waterway.

The AG clearly stated in the info in the sticky that you CAN:
wade, tie off to a tree, touch vegetation, use public waters that lie over private lands.

Ultimately, it will take someone going to court on every single waterbody in order to have a ruling on every waterbody in dispute. So far, only a handful of cases on a handful of water bodies have been heard.

As for the original ?, I would say that if the waterbody in question is not an oxbow or a public waterway, then the neighbors don't have a right to cross property lines on the water. If it is an oxbow or public waterway, then they can cross the property lines as long as they don't get out on dry land or outside the natural bank on your side.

Let me point you to two articles that sum up the jibberish in that sticky on the general forum:

http://www.olemiss.edu/orgs/SGLC/MS-AL/ ... rtsman.htm

http://home.mdwfp.com/pdf/fisheries/pub ... rticle.pdf

I've had to personally investigate into some of this for my own reasons and found out that the Attorney General has no say so whatsoever. Judges are the only ones that can interpret the law. The AG in the sticky is only offering his opinion which basically means nothing although does give us some good insight. I would think though by the way the law specifically reads...if floodwaters are abnormally high (which is outside the natural banks) you can be charged with Trespassing if taken into the right court in front of the right judge.

[Wingman]

You're exactly right; the AG opinion is an opinion, not law. The AG's opinion is, however, based on court rulings from other cases, not pulled out of a hat.

And you are also right in that if you are outside the natural banks in floodwater, you are trespassing. That is state law (51-1-1).

[Deltaquack]

You're exactly right; the AG opinion is an opinion, not law. The AG's opinion is, however, based on court rulings from other cases, not pulled out of a hat.

And you are also right in that if you are outside the natural banks in floodwater, you are trespassing. That is state law (51-1-1).

Mike Moore got in trouble on a few occasions for this exact reason....he would make opinions and act like it was law until someone called him on it and he got in trouble from a judge.

It'll take someone taking it to court and then appealing to the Court of Appeals or Supreme Court and one of them sitting down with all of the laws and previous court cases and writing a good thorough opinion. I guess until then it'll all be speculation and to each case its own.

[TODO]

Couldn't the county sheriff be called in to a hunting trespassing case that might otherwise be handled by the MDWFP?

Yep. Or, the landowner could just sign an affidavit on you w/o the help of law enforcement.

Then you are in a battle of funds, trying to prove yourself legal while fighting with guys that usually have more money in their pocket than you will make in your lifetime.

I wish the Legislature would just print out a list of all public waters that don't fall under the DEQ's rules. Of course, that would also be a nightmare.

Thats it in a nutshell. Theres gonna be more harrasment this year as the big clubs, etc. have the La. Ruling in there head. My boat got into a heated argument with a club member in january on the big river, he said we were trespassing due to the La. ruling, in Bolivar county, at 21 feet on the gauge, well, well below floodstage. Im gonna print all this out this year and stick in the boat.

[Wingman]

It'll take someone taking it to court and then appealing to the Court of Appeals or Supreme Court and one of them sitting down with all of the laws and previous court cases and writing a good thorough opinion. I guess until then it'll all be speculation and to each case its own.

j

I don't know if you've read the "sticky" or either of the two articles, but basically that information is from opinions from several court cases, including MS Supreme Court rulings.

The final decision on each waterbody will never be settled until each and every oxbow, stream, etc. goes to court. Until that day, I think the public has enough information at hand based on previous cases to make a logical decision. But you will always have people using floodwater to their advantage when trespassing and you will always have landowners not willing to accept the fact that public fishing lakes are also public hunting lakes.j

For those who are not satisfied with AG opinions, here are 3 seperate rulings from Mississippi Supreme Court cases:

According to Josh Clemons of the Mississippi-Alabama Sea Grant Legal Program, the Mississippi Supreme Court ruled in 1900 that “[a]ll navigable waters are for the use of all the citizens, and there cannot lawfully be any exclusive private appropriation of any portion of them.”2 Almost a century later, in a case involving Lake Beulah in Bolivar County, the court ruled that “the public right to waters formed by an avulsion is as great as any other public waters” and suggested that all oxbows are public waters.3 That same year the court decided that a water body is “navigable in fact” if it can be navigated by “loggers, fishermen and pleasure boaters.”4 The court ruled that the definition of navigability as found in Miss. Code A7 51-1-1, which refers to a “steamboat carrying 200 bales of cotton,” was too restrictive and obsolete. Clemons says “[t]he 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.”5

2. Pascagoula Boom Co. v. Dickson, 77 Miss. 587 (Miss. 1900).
3. Dycus v. Sillers, 557 So.2d 486, 500 (Miss. 1990).
4. Ryals v. Pigott, 580 So.2d 1140, 1152 (Miss. 1990).

[ekidd39773]

well if this helps i just got told that u get a trespassing charge if your dog goes on someone elses land because a dog cant read u get a charge and if ur dog barks u can get desturbing the peace

[Deltaquack]

It'll take someone taking it to court and then appealing to the Court of Appeals or Supreme Court and one of them sitting down with all of the laws and previous court cases and writing a good thorough opinion. I guess until then it'll all be speculation and to each case its own.

j

I don't know if you've read the "sticky" or either of the two articles, but basically that information is from opinions from several court cases, including MS Supreme Court rulings.

The final decision on each waterbody will never be settled until each and every oxbow, stream, etc. goes to court. Until that day, I think the public has enough information at hand based on previous cases to make a logical decision. But you will always have people using floodwater to their advantage when trespassing and you will always have landowners not willing to accept the fact that public fishing lakes are also public hunting lakes.j

For those who are not satisfied with AG opinions, here are 3 seperate rulings from Mississippi Supreme Court cases:

According to Josh Clemons of the Mississippi-Alabama Sea Grant Legal Program, the Mississippi Supreme Court ruled in 1900 that “[a]ll navigable waters are for the use of all the citizens, and there cannot lawfully be any exclusive private appropriation of any portion of them.”2 Almost a century later, in a case involving Lake Beulah in Bolivar County, the court ruled that “the public right to waters formed by an avulsion is as great as any other public waters” and suggested that all oxbows are public waters.3 That same year the court decided that a water body is “navigable in fact” if it can be navigated by “loggers, fishermen and pleasure boaters.”4 The court ruled that the definition of navigability as found in Miss. Code A7 51-1-1, which refers to a “steamboat carrying 200 bales of cotton,” was too restrictive and obsolete. Clemons says “[t]he 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.”5

2. Pascagoula Boom Co. v. Dickson, 77 Miss. 587 (Miss. 1900).
3. Dycus v. Sillers, 557 So.2d 486, 500 (Miss. 1990).
4. Ryals v. Pigott, 580 So.2d 1140, 1152 (Miss. 1990).

Hey Wingman, that's the only part of the whole sticky that I didn't understand (the red writing above), b/c in the case of Dycus vs. Sillers it was later determined by the supreme court that the Beulah Crevasse (what they are referring to) is actually private even though it connects to public waters but doesn't sound that way above.

[Wingman]

The SC determined that Beulah Crevasse could not be accessed through the public waters of Lake Beulah because the connecting waterway was man-made. The SC said that Beulah was public, but the ditch connecting it to the Crevasse was not. The issue was people boating through the ditch from Beulah to the Crevasse, if I'm not mistaken.