And most everyone can see this to be a classic case of "it takes one to know one"!
"No Trespassing" signs and fence across river bed
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162 Replies |
Last: 8 yr ago by raidernarizona
Well 7 people so far agree with that post so you figure out who the other a-hole is.
No one is running cows in there. Not in that spot. What are they grazing on? Rocks?
No one is running cows in there. Not in that spot. What are they grazing on? Rocks?
quote:
Anyone can see that fence is there with that sign on it because the a-hole who owns that land doesn't want people on the river.
Anyone? False. Exhibit A....BoerneGator.
quote:Oops! I should have said "streams" instead of rivers. I don't know that fences are allowed across rivers, per se, but I've no doubt they indeed exist on the headwaters of some rivers like I presume this one is. I was alluding to the OPs representation given by the GW regarding this instance. Perhaps a Supreme Court ruling is not technically "law", or is it?quote:
I don't disagree with the bolded text, but some fences (and apparently this fence is one of those) are allowed, by law, to extend across rivers. Granted, property owners have an obligation to the public to follow the law. It's far from clear to me that any law is being broken in this example.
Bg can you give me a cite for this law? I am curious to know the details.
I'm not your attorney, and my posts on this thread should not be taken as advice!
quote:quote:I have read and reread this, it still doesnt make sense.
Was by myself in a lampro nudged into the bank tieing a deer hair popper on. Never forget it.
Update as promised. Nothing really new to see, but it's good to at least have the GLO's opinion on the matter, although I'm not sure it makes any difference if the GW see's it differently.
Here is the GLO's reply
Here is the GLO's reply
quote:
Thank you for your inquiry regarding the navigability of the South Fork of the Guadalupe River, Kerr County, Texas, in the vicinity of the latitude and longitude you submitted.
In Texas a stream is considered navigable if it is found to be navigable in fact or navigable by statute. A statutory navigable stream is defined in the Texas Natural Resources Code, Article 21.001 as, "...a stream which retains an average width of 30 feet from the mouth up". Numerous width measurements of the South Fork of the Guadalupe River in the vicinity of the submitted coordinates were taken on Google Earth aerial imagery and the GLO's GISWeb in which the river appears to measure 30 feet or more. However, only an on-the-ground survey by a qualified surveyor can accurately determine the width of the river.
The Guadalupe River is crossed by the original land surveys throughout the vicinity and is therefore subject to the Small Bill (Texas Revised Civil Statute Article 5414a) , if the said river qualifies as a navigable stream. Under the Small Bill, in most cases, original survey boundaries that cross navigable streams were validated and title to the streambed was relinquished to the patentee, to the extent the acreage in the streambed is required to make up the total acreage called for in the original grant. However, under the provisions of the Small Bill, the public has the right to lawfully recreate in the bed of a navigable stream (provided they do not trespass on private property to access the streambed) and Texas Parks and Wildlife Department has jurisdiction over the sand and gravel within the streambed.
Please find the images used to make this determination attached for your reference.
Thanks for the update. So as expected, you are probably legal but would likely have to prove it in court to be sure. I think I would send that to the landowner, GW and Sheriff to get their take along with whatever law restricts fencing navigable streams.
The landowner may give you "permission" to access since you are willing to push the issue rather than actually have it challenged knowing he will likely lose. That doesn't help other kayakers but helps you.
Good to know that the GLO at least responded even if they wouldn't give you a definite ruling.
The landowner may give you "permission" to access since you are willing to push the issue rather than actually have it challenged knowing he will likely lose. That doesn't help other kayakers but helps you.
Good to know that the GLO at least responded even if they wouldn't give you a definite ruling.
quote:
Update as promised. Nothing really new to see, but it's good to at least have the GLO's opinion on the matter, although I'm not sure it makes any difference if the GW see's it differently.
Here is the GLO's replyquote:
Thank you for your inquiry regarding the navigability of the South Fork of the Guadalupe River, Kerr County, Texas, in the vicinity of the latitude and longitude you submitted.
In Texas a stream is considered navigable if it is found to be navigable in fact or navigable by statute. A statutory navigable stream is defined in the Texas Natural Resources Code, Article 21.001 as, "...a stream which retains an average width of 30 feet from the mouth up". Numerous width measurements of the South Fork of the Guadalupe River in the vicinity of the submitted coordinates were taken on Google Earth aerial imagery and the GLO's GISWeb in which the river appears to measure 30 feet or more. However, only an on-the-ground survey by a qualified surveyor can accurately determine the width of the river.
The Guadalupe River is crossed by the original land surveys throughout the vicinity and is therefore subject to the Small Bill (Texas Revised Civil Statute Article 5414a) , if the said river qualifies as a navigable stream. Under the Small Bill, in most cases, original survey boundaries that cross navigable streams were validated and title to the streambed was relinquished to the patentee, to the extent the acreage in the streambed is required to make up the total acreage called for in the original grant. However, under the provisions of the Small Bill, the public has the right to lawfully recreate in the bed of a navigable stream (provided they do not trespass on private property to access the streambed) and Texas Parks and Wildlife Department has jurisdiction over the sand and gravel within the streambed.
Please find the images used to make this determination attached for your reference.
Sounds like the GW was incorrect and you have every right to be on the river there. And I'm willing to bet TxDOT has a ROW along either side of the road, bridge, and embankment where you could legally access the river if not for the fence and signs.
Send to local GW chief
quote:She did on the phone. She said, technically that is not a legal fence contrary to what a few have said on this thread.
Good response but I am kind of surprised they made no reference to the fence.
you should have told her that according to BG it may have been there for over a century
quote:Copied from page 1. Let's assume this deed is one that indeed does extend across the stream bed. Assume also that "a" fence has existed on that property line since Texas came to exist, or not long after, but well before current water law came to be. That being the case (and there's NO doubt more than a few such situations exist), it follows that those same fences have been "grandfathered", whether they've been challenged in court individually or not. This has been my point all along.
The law does allow you to get out of your boat or watercraft within reason. First and foremost Texas law and the Spanish/Mexican law it's based on allows for scouting and safe portage of obstacles within navigable streams and rivers. So in that case the question would go back to whether or not this stream was considered navigable. There are also situations where deeds did and still do cross state waters. That's not to say that it's illegal to put your foot on the riverbed. Both and more situations are covered in the following opinion.
quote:Technichally, hers is not a legal opinion, and thus worth no more than mine and yours on this forum. But it might make a few posters here smile and get a warm fuzzy.quote:She did on the phone. She said, technically that is not a legal fence contrary to what a few have said on this thread.
Good response but I am kind of surprised they made no reference to the fence.
And to be clear, I for one have never claimed the fence is legal or otherwise.
She is citing legal opinion, not creating it. True story.
quote:
Spent a lot of time canoeing around there and my dad said if we could get our canoe down it, it was navigable. I always considered that to be solid reasoning. With all the gray area about what is navigable or not I'd keep going until told otherwise.
This
You know I love you, but man, you're arguing just to argue here
And, no one remembers Koehlers Kottages that was there for forty years on the south fork.
quote:
Let's assume this deed is one that indeed does extend across the stream bed. Assume also that "a" fence has existed on that property line since Texas came to exist, or not long after, but well before current water law came to be.
I think your first assumption is spot on. The deed probably goes across the river or to river (the presumption being the middle). But your second assumption spits in the face of the facts. The navigable in statute law was passed in 1837 and Anglo settlement of the area didn't begin for more than a decade after that. Prior to all that, the civil law of Spain and Mexico were far more strict against the land owner and giving to the state and the public regarding water, including access, than the common law adopted by Texas.
It's basically inconceivable that a fence there predates current water law. Unless it's your position that the Apache built it.
Point taken. Which brings us back to the point debated on the last thread on the subject, which remains controversial: the definition or understanding of the term navigable. Some folks on this thread seem to be convinced that any stream navigable by a kayak meets the definition of the term, as intended in 1837. I find that preposterous, but that seems to be the metric used by those given to ridicule and dismay. That kind of thinking did not exist in Texas back when those fences were first constructed, and apparently it boggles the minds of some. It would be humorous if not so sad.
Navigable by statute. Find me a spot on either fork BG, where the stream bed doesn't average 30 feet. I'm not arguing that I should be able to access a stretch because I can float my yak in 6 inches of water, but the above statute is pretty clear.
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