PUBLIC ACCESS TO FISHABLE STREAMS

What Can Brown Do For Me?
A Legal Perspective by Bill Schroeder

             I have been asked to provide a perspective on public assess to fishable waters in Ohio.  The main interest seems to lie in whether or not a fisherman has a legal right to access a stream from a bridge, overpass or adjoining right of way to fish that stream, and the extent to which that right may be limited by the fact that there is private ownership, a) of the stream banks on both sides, or b) of the stream banks on both sides and the land beneath the flowing stream.  In Ohio and other states, it is quite common to have private ownership of the land beneath a stream or river.

            As is often the case, there is no absolute black and white answer.   The answer necessarily involves an interpretation of the particular facts and circumstances and the case law.  It may vary depending on the location, the circumstances, and the interpretation given by local and state enforcement authorities.  What follows is my view of the current state of the law.

            Executive Summary:  If a stream is navigable in fact (including usable by canoes and small craft for recreational purposes, but not including small, shallow non-navigable tributaries), it is considered public water in the State of Ohio.  That means there is a public right or easement to use the waters for navigation and related recreational use, even though the banks on both sides, and the land beneath the flowing stream are under private ownership.  However, private ownership of the banks of a navigable may limit or preclude public access over the private land that is not within the easement.  Therefore, a person who walks over privately owned land to access or leave a stream might be a trespasser, if he does not have the permission of the private owner.  Access to streams may be had at bridges where the public right-of-way includes the road and surrounding and supporting embankments that lead directly to the stream.  Once an angler gains access to the navigable stream, he must keep in mind that while use of the stream itself may be within the public easement, the banks remain private.  Therefore, climbing out of the stream onto the banks, to rest or to circumvent a deep hole or swift current might be a trespass, if the banks and the area traversed are privately owned.

            The case of State ex rel  Brown vs. Newport Concrete Company, (44 Ohio App.2d 121) summarizes the law regarding navigability and public use of Ohio streams.  It also addresses the question of what is “navigability”, which is the key factor in determining whether a stream is public or private.  The Brown case reviews and discusses earlier Ohio case law dealing with public navigable waterways, which flow across private property.  It also reviews case law on what determines whether or not a stream is navigable.  The earlier cases held that a stream is navigable if it is either used or capable of being used for navigation which is connected with commerce.  More recent cases have eliminated the “commerce” requirement, and include recreational use as well.  Brown  holds that modern utilization of waterways by citizens requires a liberal interpretation of navigability to include their recreational use as well as the more traditional criteria of commercial use.  Hence, Brown establishes the right of public use for a waterway, which is either actually or potentially used for navigation, including recreational use. Brown also holds that the State of Ohio holds the waters of the Little Miami River in trust for the people of Ohio and for all Ohioans who wish to use this stream for all legitimate uses, be they commercial, transportation, or recreation. 

            Because the definition of public versus private hinges on navigability, and because the early cases, including Federal cases hold that the public easement is for navigation, a strict and limited interpretation of the case law could arguably conclude that “legitimate uses” should be tied  to navigation.  I know of no specific Ohio case holding that a “legitimate use” of the public navigation easement over a navigable stream flowing across privately owned land includes wading the stream for the purpose of fishing, unassociated with the use of a watercraft.  However, in my opinion that is a logical extension of the language of Brown.   Without that logical extension, the public easement is arguably for navigation, not for wading, which is not associated with a watercraft.  However, as a practical matter, if wading in a stream for fishing associated with a canoe, kayak or float tube is a “legitimate use” of the public easement (reasoning that since fisherman using kayaks and canoes may often beach their craft, or drag them over shallow waters or riffles) then wading and fishing without an associated watercraft should also be a legitimate public use, there being no significant distinction. 

It should be remembered that the question of navigability remains a question of fact.  That means that while the Little Miami River, or the Mad River, or Twin Creek may be navigable in fact, small, shallow, non-navigable tributaries which flow into them may not.  It should also be remembered that local sheriffs, prosecutors, and judges may not share my view that wading and fishing a stream is a “legitimate activity” encompassed within traditional notions of navigation, even when there is no watercraft involved.  Therefore, a citation to court for trespassing might result from a complaint by a private property owner against the fisherman who is wading without any kind of watercraft.  Such a citation would have to be defended on the “natural and logical extension” to include wading and fishing as a “legitimate activity” even if the stream is a navigable public stream.  Since navigability is a question of fact, it may also be necessary to prove that the stream is navigable as part of the defense to a charge of trespassing.

            Note:  Bill Schroeder is an avid fly fisherman, a member of BUFF, a practicing attorney, and Adjunct Professor of Law at the UC College of Law  and the Chase College of Law at NKU.  The views expressed in this article are his own.  They are general, and not to be relied upon as legal advice or guidance for any particular person or situation.  The intent is to provide a general overview that is not to be relied upon to govern or predict the outcome in any specific case.