Blue Line Access

[grumpy]

I have heard of people being prosecuted for anchoring a boat to fish out West.  Apparently some of the ranch owners are real jerks about it out there.  I've heard the Dow Jones Ranch in Colorado keeps their stretch of the Blue River private by building barriers with security cameras to snag boats at low flow, and if you touch the barrier, the sheriff is waiting for you at takeout to arrest you for trespassing.

Maybe one day in the far off future we will reach such levels of assholery in Tennessee, but thank God we're not there yet.

bd
[/quote

I'm a believer in the "Good Book" hopefully these folk will find a nice place in Hell someday for their selfish acts.

Grumpy

[bd]

It's interesting TN doesn't enforce an achor rule.  

TN law is written much different than Colorado. Thank goodness.  Colorado water laws are downright goofy. Montana is usually thought of having the least restriction as the public can fish, hunt, swim, float and wade in streams up to the ordinary high water mark.

Tenn. Code Ann. § 39-14-405 deals with trespassing.
http://www.michie.com/tennessee/lpext.dll?f=templates&fn=main-h.htm&cp=tncode

Applicable (in my opinion) is this section

(d)  For purposes of this section, “enter” means intrusion of the entire body.

Anchor is not a part of the body.    

Also applicable is

b)  It is a defense to prosecution under this section that:
.... (2)  The person's conduct did not substantially interfere with the owner's use of the property;

Bfish, I have my doubts that you could get out of a trespassing charge by relying on the first quote you posted.  The anchor might not be part of the body, but using the anchor holds your "entire body" in place above the landowner's property - i.e., the streambed.  Remember - the issue isn't whether or not you are on the landowner's property when you are floating through.  The issue is that the old common law of navigable waterways gives you an "easement" of sorts (oversimplifying a bit) to float through.

As far as the second quote, I know you are misinterpreting that part.  It's a three-part defense, joined by the word "and."  In other words, you have to prove all three parts of your defense, not just part (2).  In the anchoring scenario, you'd get snagged by part (1), regarding whether you reasonably believed consent had been granted.

Regardless, I think we are a long way off from any landowner in Tennessee prosecuting a trespassing charge based on someone anchoring in their streambed.  I'm just waiting for the day when someone buys a section of land on a good part of the Caney Fork and starts saying, "I own the stream bed, nobody can wade fish here but me - float on through."  At that point all hell will break loose.

bd

[toddro]

I'm just waiting for the day when someone buys a section of land on a good part of the Caney Fork and starts saying, "I own the stream bed, nobody can wade fish here but me - float on through."  At that point all hell will break loose.

bd

Oh man.  I could easily see that happening.   

[Bfish]

bd you are probably right on the 2nd part, however the on the first part I don't think so.  The law specifically states that your entire body must enter. So if you're above or beside or near you have not entered yet.

[bd]

bd you are probably right on the 2nd part,  

No "probably."  I'm right.  

however the on the first part I don't think so.  The law specifically states that your entire body must enter. So if you're above or beside or near you have not entered yet.

You're assuming you have to have feet in contact with the ground to "enter" the property.  I believe you are wrong about that.  Tennessee property law gives the landowner the power to control his property, "including the space above the surface of the land."  There are plenty of cases discussing that.

When a person is on a navigable stream, they are still on the landowner's property.  You have entered with your entire body.  You just have the right to float through under a public "easement of highway."  The law prohibits the landowner from unreasonably obstructing this easement.  It cuts both ways - the landowner can't interfere with people floating through, and people floating through can't interfere with the property.  As stated by the Tennessee Supreme Court all the way back in 1911 in Miller v. State, "The riparian proprietors also have rights in such streams as valuable as that of the public, and these respective rights of the public and the riparian proprietors must be so used and exercised as not to unreasonably interfere with and obstruct each other."  Some people incorrectly say "the landowner doesn't own the stream," but it's more accurate to say the landowner doesn't have the power to obstruct your public right to float through his property on a navigable waterway.

It's never been tested in Tennessee that I know of, but based on what I know of other states, there's a good chance that if push came to shove, a court might hold that anchoring to fish goes beyond the rights granted by the common law easement to float through.  The original basis of the easement was to allow the public to conduct commerce on large waterways - back when a lot of goods were shipped by water instead of land.  Thus, the original basis would have just contemplated the ability to float through from Point A to Point B unimpeded, which has nothing to do with stopping to fish.

Anyway, as noted earlier, none of this really pertains to "blue lines," since those small streams are not going to be regarded as navigable in the legal sense.

bd

[Bfish]

You're assuming you have to have feet in contact with the ground to "enter" the property....

One foot in, one foot out, everybody hokypoky and turn yourself around, that is what it is all about.   Seriously, I don't see how an anchor can be construed as "whole" body entering property (ie only the land as the water above is in public trust). Obviously case law has nothing on it and what little case law is out there has focused mostly on industrial/commercial uses of the water. 

[DSchlact]

I can't wait until I get my anti-gravity suit project completed.

[bd]

Seriously, I don't see how an anchor can be construed as "whole" body entering property (ie only the land as the water above is in public trust). 

I think there's a substantive difference between the easement granted by TN law and the law of states where the navigable stream is held in "public trust."  Tennessee law differs from some other states in this regard - in Pennsylvania, for instance, the entire navigable stream is held in public trust up to the high water mark.  The landowner doesn't own it at all.  Tennessee is different.  In Tennessee, the land owner technically owns the whole thing.  The WATER is held in public trust, to the extent that you have to respect the rights of downstream users.  And you have an "easement" of sorts to float on that water when the stream is navigable.  BUT the landowner has rights over the property as a whole, subject to that easement.  The landowner's rights (and your entry of the property) don't stop at the dirt itself, because the landowner has ownership and control over the space above the dirt, regardless of whether that space has water flowing through it.

The case law focuses on commercial use of the water because commercial use is the test for navigability.

Granted, there's not strictly a Tennessee case where someone has been charged with trespassing for anchoring in a stream bed.  Hopefully there won't be.  All I'm saying is that I've been practicing law for many years, and I think it could be a tough defense if push came to shove.

bd

[DSchlact]

So what you're saying is that I'm probably wasting my time working on this anti-gravity suit? 

All kidding aside, I have learned a lot reading the back-and-forth on this thread and appreciate the thought ya'll have put into this topic.  I'm holding out hope that the Tennessee landowners will continue to take the high road on this topic and continue to be reasonable with anglers and outdoor enthusiasts alike.  We also need to take it upon ourselves to treat their land and rights with respect...leave no trace, and always try to leave the place looking better than when you arrived.

Dave

[Bfish]

...All I'm saying is that I've been practicing law for many years, and I think it could be a tough defense if push came to shove...

So I need to look for a different lawyer then? As I have no plans to stop float fishing streams (both navigable and unclassified)   I just don't see it that way, of course I am no lawyer but I do occasionally stay at Holiday Inn.   

[Yoda]

He stayed at a Holiday Express last night!!! LMAO!!!!!

[grubbah]

  We also need to take it upon ourselves to treat their land and rights with respect...leave no trace, and always try to leave the place looking better than when you arrived.

Couldnt be more true, I know of a few good access points that were shut down because people abused them and the landowners got tired of cleaning up the messes.  Thats one reason why I always try to take out more than I went in with.  It might not be my mess, but I dont want to lose the access I have because somebody else is a low class jackwagon.