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"No Trespassing" signs and fence across river bed

29,311 Views | 162 Replies | Last: 8 yr ago by raidernarizona
OnlyForNow
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AG
It's good you stay around here.

Appreciate your input on a lot of these topics.


One other thing to think about is, if the landowner is there or shows up, do you really want them to ruin your day fishing?
Rocco S
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quote:
Did it ever occur to those of you complaining about a fence (that likely has existed since before your fathers, if not grandfathers, were even born) that the original purpose of said fence was to turn/keep cattle on a ranch and keep them from straying? It's not there simply to frustrate ambitious fly fishermen who enjoy exploring the great out of doors.
Then what's the sign for? To keep other cattle out? What other purpose would the sign serve other than keeping out a kayaker?

I would bet what happened here is that the landowner saw a kayaker fishing there one time, decided he didn't want him there despite having no ownership of the water, hung up the sign, told the local sheriff the story about a Supreme Court ruling, and the local sheriff bought it, not wanting to lose votes from the landowner or his friends, and the sheriff fed that story to the GW.
OnlyForNow
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AG
You could print out the small bill law/regulation, and still have a high likelihood of being kicked off or removed from the property (if you refused).

They aren't going to automatically accept it.

I'd physically GO to the sheriff's office with maps, and the small bill law and have an open discussion with them about it. Try to have the local GW or the "lead" GW attend as well. Express the fact you want to or are going to fish there and talk about it.
BoerneGator
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quote:
Did you ever read the OP because that was stated from the get go. I believe the issue we take is with it being posted the same as the rest of the fenceline. Everywhere you look, the state owns the water, but this is apparently "private" water
I did indeed. It should have been obvious my post was NOT directed at you since you did not complain about the existence of the fence. You merely questioned the legality of the sign.

My post was prompted by a couple of posts on page Juan (that got blue starred 8-9 times) that suggested cutting the fence in several places, and generally disrespected the landowners right to continue doing what has likely been done for more than a century. That is the attitude I take issue with, and it is that same attitude that perpetuates the adversarial relationship existing between landowners and the "public". One of mutual contempt, and it's easy to see why.

I have no problem with your posts, nor the thread in general, which serves to educate the public.
Kenneth_2003
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I agree that cutting the fence or disregarding the fence/signage at this point is a very bad idea. It's obvious from posts here that many/most of us believe you/we would be right to kayak, canoe, swim, tube, and fish that portion of the river as long as we respect the property ownership outside of the banks. I'll go further and argue that we have a legal right to move onto acknowledged private property for the purpose of scouting and portage of our gear if the stream channel is obstructed and prevents safe passage.

In my googling I found many of the same documents posted by Eric76. I linked to things that referenced the Small Bill on Page Juan. Eric76, my apologies I do not know your profession. I presume by your posts which you reference these with some confidence that you have some in depth knowledge on the subject. Thank you again for bringing your expertise and experience to the group.

That said, I do not think putting a folder with printouts of the Small Bill and various other opinions and court documents in your dry bag will help you one bit. It seems to me that the landowner believes he is in the right and the local GW agrees (for right or for wrong) with the landowner. Heck the GW claims the same situation exists on another fork of the river which you didn't even inquire about. I think if you were to go back and be caught, you'd at the lease be cited for trespass and possibly jailed (if the law allows). The GW thinks he's right and has now given you fair warning. It seems to me that the prudent course of action is in the courts where the law is officially interpreted. Our legislators (past and present) have adopted, and based the law on nebulous traditions and practice and the law has certainly not kept up with the state of current recreation. In this, and with all laws, the legislature writes it, the LEO's enforce it, and the courts interpret it. It just seems to me our issue is in the interpretation.
TwoDogs
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Not only is it a bad idea but consider:

quote:
To alter or remove a fence used to confine livestock is a state jail felony. Specifically, it is
criminal mischief if,
a person commits an offense if, without the
consent of the owner;
(a) he intentionally or knowingly damages
or destroys the tangible property of the
owner;
(b) he intentionally or knowingly tampers
with the tangible property of the owner
and causes pecuniary loss or
substantial inconvenience to the owner
or a third person45
If the pecuniary loss to the owner of the property isless than $1,500.00, but the property damaged was afence used for the production or containment of"cattle, bison, horses, sheep, swine, goats, exotic
poultry," then the offense is a state jail felony...........

TEX. PENAL CODE 28.03 (Vernon 2010)





tmaggies
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AG
To alter or remove a fence used to confine livestock is a state jail felony. Specifically, it is
criminal mischief if,
a person commits an offense if, without the
consent of the owner;
(a) he intentionally or knowingly damages
or destroys the tangible property of the
owner;
(b) he intentionally or knowingly tampers
with the tangible property of the owner
and causes pecuniary loss or
substantial inconvenience to the owner
or a third person45
If the pecuniary loss to the owner of the property isless than $1,500.00, but the property damaged was afence used for the production or containment of"cattle, bison, horses, sheep, swine, goats, exotic
poultry," then the offense is a state jail felony...........

TEX. PENAL CODE 28.03 (Vernon 2010)


Don't mess with a mans Livestock......
raidernarizona
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All good Boerne! I guess I just took all of those posts as tongue in cheek.
raidernarizona
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quote:
OP should contact the GLO and let them know where this fence is and see if they have a survey on file regarding the legal status of that stretch of river

I did a google search yesterday, but the only number I came up with was an Austin number. I didn't bother calling because I figured it was hard enough to get the local GW to give me a clear answer. I figured there was no way somebody sitting at a desk in Austin would be able to give me any clarification.
Rocco S
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quote:
quote:
Did you ever read the OP because that was stated from the get go. I believe the issue we take is with it being posted the same as the rest of the fenceline. Everywhere you look, the state owns the water, but this is apparently "private" water
I did indeed. It should have been obvious my post was NOT directed at you since you did not complain about the existence of the fence. You merely questioned the legality of the sign.

My post was prompted by a couple of posts on page Juan (that got blue starred 8-9 times) that suggested cutting the fence in several places, and generally disrespected the landowners right to continue doing what has likely been done for more than a century. That is the attitude I take issue with, and it is that same attitude that perpetuates the adversarial relationship existing between landowners and the "public". One of mutual contempt, and it's easy to see why.

I have no problem with your posts, nor the thread in general, which serves to educate the public.


The landowner breaking the law for however long he's been doing it doesn't make it OK just because he's been doing it for so long
aggielostinETX
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AG
Call the GLO. Get a ruling. Then have them call the SO and GW.
BoerneGator
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Are you trolling? What law breaking have I condoned? What law are you claiming has been broken?

Perhaps raider can count on you to "test" the determination of the rancher for him?
SD_71
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I wonder if along the lines of BG's thoughts, and having cows, would make me think the posted sign is to keep people from tearing down his fence to get through and letting his cattle out.
Down in South Texas there are many ranchers that have built ladders for the mohados to use instead on continually cutting their fence. Around here we have installed a few wire gaps so the hog hunters running dogs can get through your place. They usually call and tell you they are going to be hunting the area but then sometimes the hogs go way father than they think.
SD_71
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I sometimes wonder if any of the genius's like Rocco think about the rancher trying to make a living vs a nature lover out to see the sights and catch fish.
lexofer
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quote:
I sometimes wonder if any of the genius's like Rocco think about the rancher trying to make a living vs a nature lover out to see the sights and catch fish.
There aren't any cattle ranchers making a living on the north fork. It's a bunch of old rich guys either retired there or their vacation home. If they have cows its for fun and/or Ag Exemption.
SD_71
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AG
I'm sorry, my mistake!
Rocco S
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quote:
I sometimes wonder if any of the genius's like Rocco think about the rancher trying to make a living vs a nature lover out to see the sights and catch fish.


geniuses would be the word you're looking for, genius

And just because you're sympathetic to the landowner because you assume he's like you and you assume every kayaker is a hippie up to no good and you assume he's running cows which he may or not be doesn't make your position any more right
BoerneGator
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quote:
quote:
I sometimes wonder if any of the genius's like Rocco think about the rancher trying to make a living vs a nature lover out to see the sights and catch fish.
There aren't any cattle ranchers making a living on the north fork. It's a bunch of old rich guys either retired there or their vacation home. If they have cows its for fun and/or Ag Exemption.
"Making a living" is immaterial and irellavant to the law and/or the discussion at hand. Or am I mistaken? Sounds like you may have a problem with "old rich guys". If you live long enough, you'll be an old guy yourself some day, but maybe not "rich". Amiright?
Ark03
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quote:

My post was prompted by a couple of posts on page Juan (that got blue starred 8-9 times) that suggested cutting the fence in several places, and generally disrespected the landowners right to continue doing what has likely been done for more than a century. ...
And in the centuries before fenced agriculture the country was open range. I'm not saying we should cut all fences, but if the use of the land and the need of a fence for for a cattle industry that doesn't have the same needs and restraints it had a hundred years ago has changed, then maybe its time to consider that more people should be able to enjoy public resources (like "navigable" waterways).

schmellba99
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quote:
I sometimes wonder if any of the genius's like Rocco think about the rancher trying to make a living vs a nature lover out to see the sights and catch fish.
I normally agree with you, but the cattle rancher needs to make his living within the confines of the law. Granted, there appears to be a pretty hefty gray area in this instance, but simply because one is attempting to make a living does not give them the right or authority to deny or illegally use a public resource.

Would your argument be the same if that rancher had erected a dam on the river that severely impeded water flow and access to those downstream instead of a fence? Remember, he would just be attempting to make a living by impounding water for his cattle.

Unfortunately this situation is going to persist until the Texas legislature formally addresses it, and that will likely never happen.
lexofer
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quote:
"Making a living" is immaterial and irellavant to the law and/or the discussion at hand. Or am I mistaken? Sounds like you may have a problem with "old rich guys". If you live long enough, you'll be an old guy yourself some day, but maybe not "rich". Amiright?
I know many of the people that have ranches on the north fork and my Dad knows almost all of them. Most are pretty cool but some are huge dbags. Given the location, it's not a high traffic area, and the sign I think he's one of the dbags. My parents have a decent amount of land there with livestock (goats) as well. No cattle as his place is not very conductive to raising them, but he does have cattle leases in other locations.

I'm not saying he shouldn't have a fence there, there are several other fences crossing that part of the river, it's the sign. Reading through the laws I think that part of the river is considered a navigable waterway and the landowner fed the GW some line of BS a long time ago try to keep people off of it.
I-Haul
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The Case Mentioned Earlier in this Thread

Landowner = Appelant
State of Texas = Appellee

Final decision:

We have examined and reviewed all of appellants' points of error and all are overruled. We find no reversible error. The trial court correctly concluded and held that (1) the Texas Water Rights Adjudication Act is constitutional in all regards and constitutional as applied to all claimants of water rights herein; and (2) the north fork and south fork of the Guadalupe River are navigable water courses from their mouth up to the area of any claim asserted in this adjudication.

The judgment of the trial court is affirmed.

Relevant text:

We basically agree with appellee's contentions and affirm the judgment of the trial court. It is clear that prior to the passage of the current Water Rights Adjudication Act Texas water law was in a state of great confusion. One court remarked that Texas water laws and decisions are in hopeless confusion and their application would be difficult; that such laws confer little real authority upon the State Board of Engineers; that permits have been granted on many streams and if riparian rights are given the full effect for which plaintiffs contend practically every drop of water, normal flow or flood is bespoken. Martinez v. Maverick County Water Control & Improvement District No. 1, 219 F.2d 666 (5th Cir. 1955).


Shelton argues that riparian water is land and that beginning in 1840, and continuing until the effective date of the Water Code, every parcel of land patented to an individual or corporation that was bounded or crossed by a stream carried with it full and complete riparian rights, as part of the land itself.

We find no substantial basis for appellant's contention in this regard. The riparian right is one of use only; it does not carry with it ownership in the corpus of the water itself. Magnolia Petroleum Co. v. Dodd, 125 Tex. 125, 129, 81 S.W.2d 653, 655 (1935); Texas Co. v. Burkett, 117 Tex. 16, 25, 296 S.W. 273, 276 (1927);Rhodes v. Whitehead, 27 Tex. 304, 309 (1863). Riparian rights can attach only to water below the "line of highest ordinary flow." Under the common law as it has been applied in Texas, the riparian property rights extended to the reasonable use of the riparian waters. This reasonable use was limited, however, so that the owner had no right to use the water in such a way as to cause substantial injury to the common right of other riparian owners. Motl v. Boyd, 116 Tex. 82, 100, 286 S.W. 458, 470 (1926); Great American Development Co. v. Smith, 303 S.W.2d 861, 864 (Tex.Civ.App.Austin 1957, no writ); Stacy v. Delery, 57 Tex.Civ. App. 242, 122 S.W. 300, 303 (Tex.Civ.App., 1909, no writ).
Rocco S
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quote:
quote:
quote:
I sometimes wonder if any of the genius's like Rocco think about the rancher trying to make a living vs a nature lover out to see the sights and catch fish.
There aren't any cattle ranchers making a living on the north fork. It's a bunch of old rich guys either retired there or their vacation home. If they have cows its for fun and/or Ag Exemption.
"Making a living" is immaterial and irellavant to the law and/or the discussion at hand. Or am I mistaken? Sounds like you may have a problem with "old rich guys". If you live long enough, you'll be an old guy yourself some day, but maybe not "rich". Amiright?


And you're defending him for no other reason than he's an old rich guy.

Amiright?
eric76
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AG
quote:
quote:
I sometimes wonder if any of the genius's like Rocco think about the rancher trying to make a living vs a nature lover out to see the sights and catch fish.
There aren't any cattle ranchers making a living on the north fork. It's a bunch of old rich guys either retired there or their vacation home. If they have cows its for fun and/or Ag Exemption.
Cows for fun?

Is that legal in Texas?

I can see why they wouldn't want kayakers watching that.
trouble
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TxAgClif00
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AG
Raider - I'm curious as to where this actually was.

If it is close to any of the low water crossings the locals (mostly high school kids) will use to park and access the river to have their parties, then my theory is this. (Disclaimer - I really have no clue as to the laws)

The landowner owns both sides of the river, gets tired of kids being in the river and leaving cans, bottles, and other trash on his river banks, calls the GW and SO out to document, puts a fence across the river, and the LEOs come up with some obscure reference to a land law that probably doesn't hold water so he can keep his fence.

The land owner, and probably the GW, both know it more than likely wouldn't hold if truly tested, but the people the landowner is keeping out aren't going that route. And in the reality the landowner doesn't give two poops if a law abiding yaker comes through doing a little fishing (other than he just lost his secret fishing hole).

just my .02.
GatorAg03
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AG
Honestly, your best bet if you really want to fish this area, would be to call the land owner and get his permission. If he declines initially, bring up some of the case law highlighted above and nudge him in that direction by letting him you know you may consider pushing the issue in court for clarification if he doesn't comply. If he still doesn't let you, then you either move on to another fishing hole or actually push the issue in court.

My best guess is that the vast majority of these waterways are public, including this one, but again good luck getting the local LE, the local judges and he landowners to all believe it, comply with it and allow you to access the place without some significant arm twisting. I doubt even a GLO ruling and maybe even a court ruling will change all of their opinions. It won't be an easy or quick solution as this is likely a generational belief they are holding.
CharlieBrown17
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AG
I can't wait for the day someone posts one of these and the landowner is also on TexAgs
Rocco S
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quote:
Are you trolling? What law breaking have I condoned? What law are you claiming has been broken?

Perhaps raider can count on you to "test" the determination of the rancher for him?


Hanging a no trespassing sign over water that is not only not his but that the public has a right to be on is not legal as far as I know.
raidernarizona
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nm
BoerneGator
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You didn't answer my question. What law breaking am I condoning? What law was broken?

I doubt anyone witnessed whomever hung that sign doing so. I doubt hanging that, or any other sign on one's fence is illegal. But even if it were, you'll never see a citation issued, much less a conviction. Who would be cited? Spend your time on something worthwhile. This ain't it. (But it makes interesting internet squabbling)

Rocco S
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Here's the part where you are condoning the landowner hanging a no trespassing sign over a public waterway:

quote:
and generally disrespected the landowners right to continue doing what has likely been done for more than a century.


You even claimed he had a right to do so.
Post removed:
by user
aggielostinETX
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BG was the one who went to ranch foreman mentioned above last time.

Don't forget that.
Rocco S
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quote:
quote:
You didn't answer my question. What law breaking am I condoning? What law was broken?

I doubt anyone witnessed whomever hung that sign doing so. I doubt hanging that, or any other sign on one's fence is illegal. But even if it were, you'll never see a citation issued, much less a conviction. Who would be cited? Spend your time on something worthwhile. This ain't it. (But it makes interesting internet squabbling)




Assuming that the river is navigable you think the owner is right to fence off a public right of way?




This is what it boils down to
 
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