I am in key West reading this.

I love to the tenacity of the ob. Even those who are wrong and wrong again.

How many portages were required to get there?

BTW, who do you think wrong, and why?

As to tenacity; I refer you to W. Churchill.

Nm

The dam height has nothing to do with it. It's the height of the water. Once the water is above the gradient boundary you can't step out onto public. The first step onto the bank is onto private as is the part of the dam above the gradient boundary.

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Conflating portaging with trespassing seems intellectually dishonest, in the context of this discussion.

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I'm sorry, I thought it was clear that we had left the topic of standing on the dam when Sunchaser started talking about no legal means of ingress/egress 3 pages ago. When I said "portage" I meant exactly that. Carrying a boat up and around the dam regardless of whether I can climb over dam or have to access adjoining private property to do so.

In full disclosure I called the TPWD law enforcement office here this afternoon, and although it was only the clerk, she echoed exactly what I've been saying regarding portaging rights.

To clarify further, I would not stand on that same dam again but I'm pretty confident I can "portage" around that same dam.

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I think if its a navigable waterway you should have the right of portage, but considering country's assertion that pretty much the entirety of Kimble county is of the opinion that it is not navigable, I'm not sure whatever fish that are there are worth the potential headache.

I agree. Common sense says you should have that right but you gain that right thru a defined process. The land owner has rights also. Is ten yards reasonable, 20, 50, 100, 440. What is reasonable and fair to both parties.

The next thing that will be supported on texags is if you put a kayak on your back you can go anywhere you want.

Wait, how do you think Deats got to Key West anyway?

Yes...

On a plane.

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The dam height has nothing to do with it. It's the height of the water. Once the water is above the gradient boundary you can't step out onto public. The first step onto the bank is onto private as is the part of the dam above the gradient boundary.

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This logic holds that a navigable stream becomes unnavigable in a flood state when the elevation of the water exceeds the elevation of the gradient boundary. You misunderstand the gradient boundary. The area between the elevations arrived at by the gradient boundary is public. Not the volume below it.

Must I duck to remain under the gradient boundary when kayaking after a rain? No court would say I should.

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A few of us have decided to make this more like the old OB.

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This logic holds that a navigable stream becomes unnavigable in a flood state when the elevation of the water exceeds the elevation of the gradient boundary.

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Goodness gracious no. That's retarded.

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You misunderstand the gradient boundary. The area between the elevations arrived at by the gradient boundary is public. Not the volume below it.

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No I haven't.

It's an area on your survey. If you did a great job of mapping and we start to fill the three dimensional object below the area it takes a volume of water.

Once the volume of water is such that it crosses the gradient boundary line your map goes from black and white to blue and green.

It's blue between the gradient boundary lines(water) and green outside(private)

You must have legal ingress or egress.....You can't leave your kayak.

You can paddle around as the rain keeps coming. If your flood arrives maybe you can paddle over to the nearby public highway. If so you are good to go.

We have been talking about the immediate area around the dam. The volume of water to cover the area won't cover the gradient boundary upstream at some point as you move in that direction. Once reached you can now step out of your kayak onto public land inside the gradient boundary but you still have to keep going until you have proper egress.

Underroos......Least you forget.

TA truncated the Sig at some point. There's a bunch missing.

Best sig ever...

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Again, I believe everyone is referring to navigable waterways, which are open to the public. Nobody is saying you should be able to wade up a stream on private property just because you feel like it.

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I suppose I'm getting confused with the original post and where this thread has gone, but the debate began as whether or not the Johnson Fork Creek is a navigable waterway.. I can assure you that starting about 1 mile downstream of the dam in question, the Johnson Fork becomes a stream that you would have to wade up and down if you wanted to navigate. Sure there are small stretches in which a boat or kayak can be utilezed but you are going to be walking much more than you are going to boating. As such, I believe lot of folks on this thread are debating the reasonableness of wading up and down a stream that traverses private property.

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I know of many places on the Brazos, San Bernard and Colorado rivers that one could not push a flats boat up due to the normal water level and width of the actual water channel. Does that mean that those rivers are not considered navigable waterways because of these sections?

The Frio and Guadalupe are much the same way too - ask any tuber in August how much walking they do from launch to launch.

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I'm out in Lajitas enjoying a weekend of golf and no worries, but I will point out that every River mentioned in this post is one in which surveys stop at the river's edge. They fully meet the definition of what the sovereign outlined and were handled as such by original surveyors, so yes I believe these waterways do conform to what our founders intended navigable to mean. If anyone is making the claim that the general characteristics of these waterways are comparable to streams such as the Johnson Fork, I've got some ocean front property in Arizona to sell them.

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Glad you used the modifier "seem" because I do not "reject any approach that recognizes the public's right to access public waterways".

My entire argument centers around what is and is not public. I don't know where I've failed to make that clear to all. And I don't have any vested interest as a bias, other than that as a member of the public, much as you perhaps. But that bias is informed by a lifetime of experiencing dealing with what can be an intrusive and demanding public.

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So, hypothetically, if the Johnson Fork (or say the stream that crosses through or borders your property) is not public, and you have every right to keep those greedy city folk off that stream - I assume you recognize that, because said waterway is not public, then the guy upstream from you has every right to dam up said stream, thereby impounding 100% of all available water for his use with no regard to your water needs? Remember - it is not a public waterway after all.

Or is it a case where it's a private waterway when it suits your needs, but when it does not suit your needs, we must be stewards of the land and make allowances for all who also may need said resource?

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I just can't get off the thread now. This poster has crossed the line between respected debater to showing his stupidity and ignorance of the law. We are not debating surface water ownership which is an entirely different law altogether. The answer to your question is unequivocally no. It is plainly documented that the State has excersised it's police power rights in reference to surface water and has plainly outlined the public's ownership of that surface water. So long as an owner upstream diverts the water in quantities that his/her rights give them then that's in accordance with law. If they are diverting more than their rights allow then a disgruntled downstream land owner will be the least of their worries.

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Those river levels are affected by our usage today - but I would argue that 100 years ago when there were no dams, pump stations, treatment plants, etc - you'd still have many sections of those same rivers that were not navigable by any form of water vessel.

And remember, "navigable" is not strictly limited to "by watercraft" either.

I would also bet that one of the reasons streams, rivers, creeks, bayous, etc. were given navigable status - either in fact or in statute - was to classify them as public resources and not allow the guy upstream to limit or restrict usage from downstream landowners. I'm sure all of the cattlemen on here appreciate the fact that there are, even on waterways that are not navigable by statue or in fact, laws that prevent upstream landowners from preventing downstream landowners access to the water, correct?

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Just pointing out, again, a person that is entirely ignorant of surface water law in relation to the navigable stream debate at hand.

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Below Lake Meredith, the Canadian River bed is nearly 1 mile wide and virtually dry. The mineral rights beneath it are leased by the State of Texas. There are miles of roads that are built on the river "bed". Some of the major landowners adjoining the river sued the state concerning the extent of their private property and won in a major Supreme Court decision.

Supreme Court rules in Landowners Favor

"The Texas Supreme Court, ruling on the lawsuit which has been in the courts for more than a decade, found for the landowners. In a case that could have implications for property law across the state, the court said the private property extends to the flow of the river."

"The ruling cut the state's ownership of land around the river from 14,000-plus acres to 138 acres."

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That can't be right. All of the Texas Parks and Wildlife material shows the issue as clear cut and never mentioned cases such as this.

One thing that was very surprising to me.....

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Before the case, there had never been a gradient boundary survey in the disputed area.

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Below Lake Meredith, the Canadian River bed is nearly 1 mile wide and virtually dry. The mineral rights beneath it are leased by the State of Texas. There are miles of roads that are built on the river "bed". Some of the major landowners adjoining the river sued the state concerning the extent of their private property and won in a major Supreme Court decision.

Supreme Court rules in Landowners Favor

"The Texas Supreme Court, ruling on the lawsuit which has been in the courts for more than a decade, found for the landowners. In a case that could have implications for property law across the state, the court said the private property extends to the flow of the river."

"The ruling cut the state's ownership of land around the river from 14,000-plus acres to 138 acres."

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That can't be right. All of the Texas Parks and Wildlife material shows the issue as clear cut and never mentioned cases such as this.

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[Deats]There's a simple explanation for that. You see all employees of the TP&W are graduates of The Evelyn Woods Reading Dynamics Course, so in their haste, they musta skipped over that (and perhaps a few other, let's just say, 'troubling') cases. You too should "learn to read!" [/Deats]

Your mocking is childish.

The state changed the flow and size or the river permantly. So they gifted quite a bit of land to some lucky folks. But I bet the current bed is still state property.

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Your mocking is childish.

The state changed the flow and size or the river permantly. So they gifted quite a bit of land to some lucky folks. But I bet the current bed is still state property.

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Mockery, when used as instrument to cause folks to self-examine, can be very effective. Children even more so. And indeed, they learn to master it at a very young age.

As to your bolded comment, some would say the land was simply returned to its rightful owners, and luck was not involved, but only Justice.

But of course, that depends entirely upon ones perspective.

As it currently exists below the dam, the Bed and water within the Canadian River are owned by the State. The adjacent landowners now have clear title to everything between the current gradient and the historical gradient lines.

You see Deats, it's occurred to me that you sorta seem to look upon the OB as something you need to protect from (perceived) abusers, not unlike those greedy landowners trying to keep the public off their private property.

Except they actually own what they're protecting.

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So they gifted quite a bit of land to some lucky folks

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Hmmmm....I guess you could say that but since you didn't have a gradient boundary line prior to the trial neither parties acreage was defined.

One other question, how can it be possible to determine the location of the historical gradient, with the lack of water to determine a gradient of a particular River?

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One other question, how can it be possible to determine the location of the historical gradient, with the lack of water to determine a gradient of a particular River?

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Which begs the question, is a river really a river if/when it has no water to call it's own?

In a debate over instream flow, that was actually a pretty major argument in the House back in 2011.

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Prolly a troll, but trolls like you are the reason laws and lawyers exist in the first place (to a great extent). And you'll likely never own anything of consequence, preferring to mooch off of others.

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Wow man! You seem like a real pleasant person. I've been visiting the OB for 6-7 years and this is the first time I've been called a "troll". I can post pics of said dam if you'd like.

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Now I have to follow rules. But seriousky....a dam? I wouldn't worry. Make that old ******* come out and get you. I don't know anyone that would butch too much about it and if they do, make it worth
their while. They need the excitment.

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I didn't post the backstory b/c I was on my phone for the OP, but it's actually my friend's father's place. I've only been going out here with him for the last 2 or 3 months. But each time we've gone, we have fished off of the dam. My buddy fly fishes and likes to fish a shallow hole on the downstream side and I've always fished the deeper upstream side. We've always released fish back to the side they came from. Monday afternoon we were both fishing atop the dam and two ladies approached us and I knew they wanted us gone when they didn't reciprocate the two times I waved at them, as we could see them walking towards us for a few hundred yards. We said hello as they walked up and without returning any form of greeting, the older of the two ladies said, "this is private property and you can't be here. We have 70 people here this weekend and we can't be held liable if anything were to happen." My buddy motioned towards his property and said this is our place and she just shrugged it off. We had my 6 year old son and his 10 yo., and we just said okay and packed up our tackle and left as asked, without anything more said.

I understand we may have been in the "wrong", but it honestly just rubbed me a little wrong and I wanted to know what the law said. Maybe I'm old school at 33, but I think neighbors should be neighborly. It just doesn't make much sense to me that if you don't own the bed of the stream but you place a man-made structure across it, it's now yours.

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Small world! While waiting my turn in the barber chair this morning, somehow the conversation turned to development and growth issues, and found myself talking with a fellow who "has a place up on the Johnson Fork". I began to quiz him about the navigablity of it, and I was interested to learn his understanding of applicable law is that while the public can be "on the water", they cannot touch the stream bed with boat or oar, not to mention body parts. Soon I learned he is the manager (and brother of the woman the OP describes above) of the ranch that Roach Lake and the subject dam are located on.

Before I identified myself, he volunteered the story about the OP's encounter with his sister, including the part about how the OP and his friend actually drove their jeep across his sister's property to access the dam. Details the OP likely was not even aware of. Sorta makes the original question posed (Are we tresspassing when standing on the dam?) moot, huh?

I came away from the conversation convinced that his understanding of the law, as well as TWQC's application of it (according to him) are consistent with my own. Tresspassing on Hil Country ranches is still vigorously enforced. Learned also the benefit and meaning of "purple paint".

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Which begs the question, is a river really a river if/when it has no water to call it's own?

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Hmmmm. Does a bear s**t in the woods? Oh wait never mind.

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Before I identified myself, he volunteered the story about the OP's encounter with his sister, including the part about how the OP and his friend actually drove their jeep across his sister's property to access the dam. Details the OP likely was not even aware of. Sorta makes the original question posed (Are we tresspassing when standing on the dam?) moot, huh?

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I don't believe we were. There are steel pipes in the stream bed where it appears there use to be a fence across the stream. We stopped short of that. Of course I could never be certain where their property began without said fence. Regardless, I told my buddy that I didn't believe it was legal for us to be driving through the stream bed. It's just something they've always done.

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Before I identified myself, he volunteered the story about the OP's encounter with his sister, including the part about how the OP and his friend actually drove their jeep across his sister's property to access the dam. Details the OP likely was not even aware of. Sorta makes the original question posed (Are we tresspassing when standing on the dam?) moot, huh?

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I don't believe we were. There are steel pipes in the stream bed where it appears there use to be a fence across the stream. We stopped short of that. Of course I could never be certain where their property began without said fence. Regardless, I told my buddy that I didn't believe it was legal for us to be driving through the stream bed. It's just something they've always done.

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He pulled up Google Earth on his phone and showed me where y'all crossed the creek, whereupon you were on his sisters ranch, then approached the dam and parked the jeep, all on private property. Perhaps your friend (Milton?) isn't familiar with the property lines? I certainly am not, but he was quite certain you had trespassed (according to his sister).

It's pretty clear to me the only thing public (in your scenario) is the actual water, but since you can't access it legally, you're reduced to waiting for it to get downstream and on your friend's property. Considering the Milton's have a body of water as large as Roach Lake just below their house there, why even the need for your friend to go "next door"?