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clifff
Mountain climber
golden, rollin hills of California
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Mar 16, 2018 - 08:39am PT
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For California the constitution protects the public's right of access.
CALIFORNIA CONSTITUTION
ARTICLE 10 WATER
SEC. 4. No individual, partnership, or corporation, claiming or
possessing the frontage or tidal lands of a harbor, bay, inlet,
estuary, or other navigable water in this State, shall be permitted
to exclude the right of way to such water whenever it is required for
any public purpose, nor to destroy or obstruct the free navigation
of such water; and the Legislature shall enact such laws as will give
the most liberal construction to this provision, so that access to
the navigable waters of this State shall be always attainable for the
people thereof.
https://law.justia.com/constitution/california/article_10.html
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fear
Ice climber
hartford, ct
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Mar 16, 2018 - 08:43am PT
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Stringing barbed wire across rivers should be a felony IMO. That's a lethal mantrap. That's just insane.
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Reilly
Mountain climber
The Other Monrovia- CA
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Mar 16, 2018 - 08:50am PT
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Sometimes a burning ranch house is a good thing.
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Ken M
Mountain climber
Los Angeles, Ca
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Mar 16, 2018 - 09:45am PT
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Well, the good citizens of New Mexico have made a determination, on the basis of who they have elected to serve them, how the historic waters of the State will be eliminated from access by the citizenry.
They have the ability to vote, and they have chosen.
It certainly is a discrete business model to consider that the waters are a economic resource, and that the average citizen should have to pay to access those state-owned waters. A money maker. And certainly the republican viewpoint that public lands should be maximized as money generators, fits this model well.
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Cragar
climber
MSLA - MT
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Mar 16, 2018 - 09:52am PT
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It's happening all over MT. I'm sure Zinke can help sort things out.
One of the crappier 'artists' all time, Huey Lewis made the news when he fenced off a slough/channel used by generations on Montanans. He has involved himself in plenty of mischief and his $$ will always keep him in the 'right'.
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hooblie
climber
from out where the anecdotes roam
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Mar 16, 2018 - 09:52am PT
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my ex's old man, when i asked him what his most significant effect had been
during his twelve years on the montana supremes, pointed to the stream access case
for which he wrote the majority decision iirc:
https://www.bigskyfishing.com/misc/montana-stream-access-law/
he wrote prolifically, mostly for the minority, and did so with flair!
his retirement party was an amazing event. one of his clerks read aloud at the podium,
unfurling a monster stack of fan folded print out onto the stage floor in front of him as he rifled
from one bookmarked gem to the next. i thought it was the work of mark twain.
then the honoree declined the mic
and in the most sonorous command of the spoken word i've ever witnessed
evoked tears of both laughter and pain, then back and forth all over again until
i came to severely regret never having seen him during his trial lawyer days.
rest in peace hon. john "skeff" sheehy
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Keith Reed
climber
Johnson county TX
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Topic Author's Reply - Mar 16, 2018 - 10:06am PT
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These people won’t give up until they take it all.
And Huey Lewis can eff himself.
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Reilly
Mountain climber
The Other Monrovia- CA
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Mar 16, 2018 - 10:13am PT
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So how many of you would like it if yer neighbor climbed over yer fence to walk through yer
back yard to visit the neighbor on the other side?
Now not many properties probably have navigable waters flowing through them, especially
in New Mexico, so I would make an exception for that. We had a major river that flowed
through our farm in upstate Wisconsin. Never occurred to us to do other than wave at
anybody floating by. But then we weren’t misanthropes or meth lab owners.
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Cragar
climber
MSLA - MT
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Mar 16, 2018 - 10:14am PT
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Thanks for the link Hoobs. Cool story and is even up there with your pics O'Volco rocks.
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John M
climber
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Mar 16, 2018 - 10:22am PT
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So how many of you would like it if yer neighbor climbed over yer fence to walk through yer
back yard to visit the neighbor on the other side?
depends on if I knew the neighbor had been doing that before I bought the land and that the way which the neighbor used was a protected access. Since we have had protected access to waterways for many generations..well... then I screwed up if I thought that I should be able to bar access to a waterway. Same with beaches.. Personally I think that we should take back more of our beaches. If a road goes through a persons property and its a public road, most people realize that they can;t close the road.
If you want to live on a waterway, or a beach, then you have to accept that people will use it.
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Reilly
Mountain climber
The Other Monrovia- CA
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Mar 16, 2018 - 10:30am PT
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The law on easements is quite clear as far as I understand it but I doubt that a ‘use easement’
would hold up. In Britain the ‘right to walk’ is ancient and accepted, but then Brits are generally
much more polite and considerate than Yanks.
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clifff
Mountain climber
golden, rollin hills of California
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Mar 16, 2018 - 11:42am PT
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CALIFORNIA CONSTITUTION
ARTICLE 10 WATER
SEC. 4. No individual, partnership, or corporation, claiming or
possessing the frontage or tidal lands of a harbor, bay, inlet,
estuary, or other navigable water in this State, shall be permitted
to exclude the right of way to such water whenever it is required for
any public purpose, nor to destroy or obstruct the free navigation
of such water; and the Legislature shall enact such laws as will give
the most liberal construction to this provision, so that access to
the navigable waters of this State shall be always attainable for the
people thereof.
https://law.justia.com/constitution/california/article_10.html
The first few lines above guarantee access ("right of way") over anyone's property that fronts navigable water. But just because it's in the constitution doesn't mean the bastards will follow the law. If they are not ok with providing access then they should not own land bordering navigable waters.
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August West
Trad climber
Where the wind blows strange
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Mar 16, 2018 - 11:50am PT
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And certainly the republican viewpoint that public lands should be maximized as money generators, fits this model well.
Heretic!
A true republican believes that there should not be any public lands...
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stevep
Boulder climber
Salt Lake, UT
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Mar 16, 2018 - 12:14pm PT
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Yeah, this has been an ongoing battle in UT. Fishers, rafters, etc wanting to preserve access in the water and various landowners wanting to block it. I think we're currently in the "pro-access" situation, but with the current administration's priorities, it wouldn't surprise me if that changed.
Related to this is Vinod Kholsa, the billionaire that blocked access to Martins Beach down by Half Moon Bay. He is currently defeated in that effort, but apparently is going to appeal to the Supreme Court, and if he's successful there, it will be a big blow to land/water access rights.
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Cragar
climber
MSLA - MT
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Mar 16, 2018 - 12:23pm PT
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So how many of you would like it if yer neighbor climbed over yer fence to walk through yer back yard to visit the neighbor on the other side?
I'm surprised that your know-it-all-ness doesn't see the apples to oranges comparison you are trying to make/justify.
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clifff
Mountain climber
golden, rollin hills of California
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Mar 16, 2018 - 01:19pm PT
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All sorts of laws regulate land ownership. The mineral rights may be owned by someone else, who can come in strip mine the place. There can be easements for power lines, sewer, gas, etc. which all require access for maintenance. Zoning laws spell out what an owner can do. Access roads to other property may exist.
The right of public access thru a property to publicly owned waterways is just another of many laws governing just what a property owner is obligated to.
Myself I think all the land along waterways, rivers, lakes, and ocean, should be publicly owned parks. Problem solved - no private land owners to block access, or to destroy the riparian zone (of huge importance to wildlife and wild plants), or to get flooded out and then go crying for disaster relief.
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Ksolem
Trad climber
Monrovia, California
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Mar 16, 2018 - 02:16pm PT
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A true republican believes that there should not be any public lands...
Actually that is the position taken by the Libertarian think tank Cato Institute. I agree with a lot of what comes out of that place, but obviously this conclusion is a 100% deal breaker for me.
Republicans aren't nearly as hard core on this issue.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Mar 16, 2018 - 03:05pm PT
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Malemute, you need to get around more.
The problem is simple; 2 many people.
Lotta hate here for successful people, but then James Brolin flipped me off when we buzzed his place in my bud's light plane.
just 2 many people,..
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Gary
Social climber
Desolation Basin, Calif.
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Mar 16, 2018 - 03:07pm PT
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The law on easements is quite clear as far as I understand it but I doubt that a ‘use easement’
would hold up.
In regards to property, unwritten rights are the strongest rights.
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Batrock
Trad climber
Burbank
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Mar 16, 2018 - 03:12pm PT
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I kayak Lower Piru Creek from Lake Piru into the Santa Clarita River every year. There is a giant land owner who owns much of the land on both sides of the river. The county road bridge just below Lake Piru is the normal put-in but every time I attempt to get in the river the land owner speeds up in his truck yelling that its illegal to float through his property. Several times the police have been called out and several times the police have told the land owner that there is an easement at all bridges allowing access to the river. We have found wire and barbed wire across the river on occasion but I don't believe it was malicious but meant for cattle.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Mar 16, 2018 - 03:20pm PT
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unwritten rights are the strongest rights
Yeah, that's legal argument likely to fly,...
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Toker Villain
Big Wall climber
Toquerville, Utah
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Mar 16, 2018 - 03:52pm PT
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T, they're cutting not building.
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Reilly
Mountain climber
The Other Monrovia- CA
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Mar 16, 2018 - 04:34pm PT
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You consider a desire for peace and quiet on land you worked hard to own as a ‘fetish’?
Spoken like a true anarchist.
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Gary
Social climber
Desolation Basin, Calif.
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Mar 16, 2018 - 04:58pm PT
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Yeah, that's legal argument likely to fly,...
It's not a legal argument, it's a rule and an ancient rule at that. Right now I don't have my references handy, but here's what Curtis M. Brown, a foremost authority says:
Within the United States, in most areas, the first right to land must be acquired via a writing, however defective. After a written title is obtained, except in Torrens Title areas, imperfections in the writings can be corrected by long possession or the land area can be enlarged or diminished by the acts of adjoining owners. Written title alone is not the only consideration in determining who owns property; actual physical possession of the land can result in the passing of title. In the order of importance of elements determining who has ownership of land, a legally consummated unwritten right ranks higher than a written title. http://californiasurveyors.org/members/art_lsliab.html
Every land surveyor will tell you that you don't tug on Superman's cape, you don't spit into the wind, you don't pull the mask off the old Lone Ranger and you don't mess around with Curt Brown. (or Gurden Wattles, but that's for another post)
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RussianBot
climber
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Mar 16, 2018 - 05:42pm PT
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If I like the precedent, then I don’t want it to change. If I don’t like the precedent, then I do want it to change. Didn’t we just have an election about something like that?
Sorry folks, we don’t have a right to things staying the same, much as we might wish we did.
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ionlyski
Trad climber
Polebridge, Montana
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Mar 16, 2018 - 05:55pm PT
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One of the crappier 'artists' all time, Huey Lewis made the news when he fenced off a slough/channel used by generations on Montanans. He has involved himself in plenty of mischief and his $$ will always keep him in the 'right'.
Easy Craggy :) I've done sound for Huey a dozen or so times over many years. Yeah, he may be hasbeen and he is pretty darned old but we all thought he put on one of the better shows back in the day.
I've heard another side to those litigations but I don't remember the details. Are you saying he prevailed because he bought it off? I thought he lost the lawsuit anyway, no?
Arne
edit-I'll have to read up on it. I know it was long and drawn out
edit edit-too complicated. Sounds like he has prevailed for now which is rare for Montana water rights but it is an interpretation by the judge (so far) that its an irrigation ditch not a natural body of water. It looks like a pretty irrigation ditch though, with fish but I don't think he's the crappiest artist of all time.
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NutAgain!
Trad climber
South Pasadena, CA
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Mar 16, 2018 - 08:31pm PT
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I think the point about money prevailing in court, as anyone who has been engaged in litigation can attest to, is that it is a war of attrition. Judges don’t decide dick for a long time, and either side can keep filing motions and delays until he other side runs out of money to pay lawyers. And if you try to represent yourself without lawyers, the legal rapeage rises to a whole new level unless you are super-meticulous about paperwork and procedures and filing by deadlines. A lawyer on the opposing side will bury you in paperwork and delay filing until last minute so you have the least time to prepare a response.
Courtrooms are not about finding fairness or reasonableness. It’s just a different type of war with a specific set of rules. And those rules are strongly biased to the side with more money.
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Fritz
Social climber
Choss Creek, ID
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Mar 16, 2018 - 10:20pm PT
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Idaho stream access law is based on logger's right’s to float trees down "navigable streams" from the 1800's. By law, that is a stream that will float a log 12" in diameter & 8 feet long, while in flood. On "navigable streams" right of access to the high water line & above it, if needed to continue along the stream, is guaranteed to both loggers & fishers.
That law always worked for Idaho's larger rivers, but Silver Creek, a Blue Ribbon spring creek, near Sun Valley, was "locked-up" by local land barons.
In the 1970’s local fishermen, escorted by Fish & Game wardens, proved it was “navigable” & established public access to it.
There are still “locked-up” streams in Idaho, but I don’t know any that are interesting rafting. That, of course, doesn’t stop a local rancher from putting barbed-wire across a “navigable-stream” to keep his cows from wandering.
The key decision by courts on Idaho stream access, is that the state owns both the water in the stream & the stream-bed. In Wyoming, the state owns the stream, but the local land-owner owns the stream-bed.
I remember that on the great floatable fishing streams around Pinedale, WY, folks could float the streams, but they were trespassing, if they anchored their boats, or got out to fish the stream. And some landowners called the cops on folks that tried to do that.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Mar 17, 2018 - 01:25pm PT
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An "ancient" rule huh? So are the 3 Ss.
Here in Utah easements are registered and subject to subsidence if not used for a certain period.
I think Reilly gets it. Its the bad apples that screw things up for most people.
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Gary
Social climber
Desolation Basin, Calif.
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Mar 17, 2018 - 02:08pm PT
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Think what you want TV, but unwritten easements can be enforced. If you buy a piece of property and people have been using that property for any sort of access or use in the past, you took on that unwritten easement along with any other encumbrance on the property.
Please reread the Brown quote.
BTW, don't be so sure about easements going away due to non-use.
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RussianBot
climber
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Mar 17, 2018 - 02:30pm PT
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Right it’s those bad human apples that are screwing up the climate for everyone else. Don’t look at me - it’s the other bad apples. Those humans are just so f*#king full of themselves that there’s not much room left in their heads for anything else.
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Batrock
Trad climber
Burbank
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Mar 17, 2018 - 02:42pm PT
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Breaking the law on Lower Piru
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Dave
Mountain climber
the ANTI-fresno
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Mar 17, 2018 - 05:24pm PT
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"property is theft"
You'll think that until I and 20 of my friends take up residence in your living room.
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Gary
Social climber
Desolation Basin, Calif.
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Mar 17, 2018 - 07:22pm PT
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Piru is navigable, hence state land.
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Batrock
Trad climber
Burbank
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Mar 17, 2018 - 08:49pm PT
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Gary, tell that to Rancho Temescal.
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TheRev
Trad climber
Sunnyvale
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Mar 18, 2018 - 07:53am PT
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New Zealand has an interesting approach to management of a river. They gave it full citizenship and personhood . In any legal proceeding effecting the river, it must be represented by a legal team. This is not as strange and artificial as giving a corporation rights under law.
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Dave
Mountain climber
the ANTI-fresno
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Mar 18, 2018 - 09:29am PT
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"New Zealand has an interesting approach to management of a river. They gave it full citizenship and personhood . In any legal proceeding effecting the river, it must be represented by a legal team. This is not as strange and artificial as giving a corporation rights under law. "
The environmental NGO's sued to protect the Colorado River from being siphoned off to Denver and attempted to use that basis.
The court not only threw it out, the state threatened sanctions for frivolity.
http://kjzz.org/content/576238/lawsuit-give-colorado-river-legal-personhood-over
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Condorman
Trad climber
Garden Grove, CA
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So how does that California Constitution (never knew we had such a thing) play into Lake Tahoe? So LITTLE of that lake is accessible to the public.
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| Messages 1 - 41 of total 41 in this topic |
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