Public Right of way: Indiana Streams?

[IndyGunworks]

I just purchased some land in which 6 mile creek runs wholely through my property. It seems that this is a pretty popular creek w/ the locals who like to start at a bridge and walk the creek while fishing, or for other recreational purposes.

I am trying w/out success to find any Indiana codes on the use of such a waterway. At its normal water level it would not be considered navigable, but I am unsure if the waterway is "open to the public" or not.

Can anybody shed light on this or at least direct me in the right direction for my research.

 

[femurphy77]

I know a lot of "private" beaches where the accepted standard is if it's wet it's public, if it's dry it's private. But this aint no beach and that's only an "accepted standard". No help but interesting tidbit.

 

[IndyGunworks]

I have no problem w/ people using it, as I wouldn't mind not being limited to my 165 feet of creek either, but if another property owner yells at me for being in "their" stream I would like to be able to back it up with something, or at least understand that I might be trespassing. To the same token, anybody that wants to use my section is welcome as long as I can use theirs.

 

[Killion]

remember the stoner kids from the movie super troopers??

No, man, I'm just saying... I'm sayin', if-if you own beachfront property, right, do you own, like, the sand and the water?


Nobody owns the water. God owns -- it's God's water.

 

[Rob377]

List of declared navigable waterways, along with some legal background.

NRC: Roster by County

 

[snapping turtle]

The high water line is public property. After that it is private. Includes sand bars in the middle and on the edges of nagivatable streams, rivers and lakes, My test is my 10 foot canoe witch will float in 2 to 3 inches of water. No waterway has been declared navigable or nonnavigable covers most counties. so at least a case can be made for all streams.

Not a flood line but normal spring high water line. I believe it goes back to streams being roads back in the day. The road has a side ditch thus the high water line. As far as nagivatable that would means passage by ships. I guess a canoe or kayak so if it is a stream then it would be public domain. A ditch no a stream yes.

I used to do stream and water testing and had a run in with a over zellous property owner. He then saw (after they hey you get off my lwater) what I was doing and ended up sponsering a second set of water quality equipment for my group. I know from the state testing program that it is the hgh water line but I have no law number of could not quote it verbatium.

 

[2ADMNLOVER]

tag

 

[IndyGunworks]

6 mile creek is not listed as a navigable waterway, but I don't think that in and of itself means anything. During normal water a canoe or kayak would ground out in several places. but if going by the high water mark a speed boat would be able to make it up and down river during the few times a year when its at its highest right before flood stage.

I understand MANY people think that since its a natural stream that means its automatically public as long as you are w/in the waterway, but I don't think that's the case however much I want it to be the case.

 

[snapping turtle]

That site only lists court cases where law has determined it as so.

Fall creek is not listed in madison county/marion county. Yet in 1880's the major way to get to Pendletons mill at Mill st. (Right behind my old house) was using the creek so a case could be made that fall creek in pendleton is a navagatable waterway or was. I believe it would be considered navagatable unless deemed non navagatable.

I am very interested and have always gone with the wet is public route also.

 

[Hawkeye]

The DNR publiishes, on-line, a Guide to Indiana Canoeing and recreational use of rivers and streams. You can find it at the follwoing link:

DNR: About the Guide & River Rights

I have exceprted a couple of paragraphs from it that touch on this issue:

"The legal use of Indiana's rivers for canoeing is a confusing issue. Public freshwater lakes can be used. Several Indiana rivers have been designated as "navigable," which means the river and its bed are held in trust by the State of Indiana, and can also be used by the public. Another possibility is that through continuous, long-term usage of a river, the public has acquired a "prescriptive easement." The bed remains in the ownership of the landowner, but the public may use the surface of the river for canoeing. In general, the public has no right to use water that is not in a public freshwater lake, a navigable river or a river upon which a prescriptive easement has been established. More information about navigability can be found on the Natural Resources Commission (NRC) webpage. "

From this paragraph, I'd conclude that if the stream is "navigable", then the pubic can use the water surface. If not, then if the public has acquired a "rescriptive easement" through long and continuous use, "adverse possession", then the public may have a right to use the water surface, but has no right to use the streambed (or the adjacent banks by reasonable extrapolation).

The pooint that the streambamks are private property is further expounded upon in the following quote from the guide:

"A landowner along a river that has not been declared navigable by statute or by a court decision may claim that the public cannot canoe the river. If a conflict arises, the only solution is to go to court and seek a declaration of navigability or that a prescriptive easement has been established. You may wish to contact an Indiana Conservation Officer stationed in a county where you plan to go canoeing for additional information about river use problems. However, keep in mind that the banks of all rivers in Indiana should be considered private property. Only a very small part of the riverbanks in Indiana are in public ownership. Please do not trespass on private property. Please also remember to "carry out all that you carry in" when you take a canoeing trip. Help prevent litter. The Department of Natural Resources wishes you very enjoyable experiences as you float through some of the most natural, scenic and historical areas in Indiana."

While the above does not have the force of law, it is a published statement by the Indiana DNR.

What you should consider, and you should get legal advice on this from the lawyer of your choice, is posting the property along the stream as private property, no trespassing. Maybe a sign telling poeple to contact you for permission to walk onthe property or fish from it, something like that. If you don't it sounds like the public could claim an easement on the property through long and continuous use. Your loawyer can explain this to you.

 

[mike trible]

Indiana Streams

Check your Deed, it might show there who owns the waterway. Otherwise the Navigable/Non-Navigable question is determined by what it was when Indiana became a state. If the waterway is Non-navigable, the waterway is owned by the adjacent property owners. There have been Federal and State court decisions on this. Indiana rule 312 IAC 6-1.
If the waterway is navigable the line is the traditional High water Mark. You might get some answers from your local C.O. , some of them are familiar with this rule, and the one in your area might have had to look into this before at your location. (Clear as Mud, right?)

 

[03A3]

Some good info posted already.
Many people think that all waterways are public when that is just not the case.
I have to get permission from several landowners to get on non-navigable waterways, and in some cases permission to gain access to a navigable waterway.
It's all about knowing the regs, and landowners relationships.

 

[03A3]

Mike the normal high water line criteria certainly is as clear as mud. Gumbo mud at that.

 

[GodFearinGunTotin]

 

[IndyGunworks]

I think it would be wise to note that during normal water you CANNOT navigate the creek w/out walking on the stream bed.

 

[IndyGunworks]

some photo's of the creek in question

 

[wabash]

sorta-on-topic story from CA


A gamble on the river pays off - Los Angeles Times

Who Knew that Paddling Could be an Act of Civil Disobedience? | The Johnson Foundation at Wingspread


The Long Road to Paddling the L.A. River | FoLAR | Confluence | KCET


At last, Los Angeles River opens to public recreation after 80 years - CNN.com

 

[IndyGunworks]

that helps a bunch because I am almost positive one could kayak shortly after some rain and hardly have to get out of the kayak.

 

[miguel]

Put multiple dogs in the water, that might discourage people from passing through!

 

[IndyGunworks]

Its two fold. If its open for others to go through my part of the creek, then I get full access legally to theirs as well. I would rather it be open to the public than closed as not everyone has the luxury of a creek on their property. This is a large enough creek that I don't think I should "own" it. but if I do indeed own it, then I would like to try and get permissions to use the rest of it instead of hoping I don't get caught "trespassing" w/ my son once he is old enough to go creek stomping.