Conservation Laws: A Delicate Balance

Legal decisions that shape the fish, wildlife and forestry conservation of Missouri maintain a delicate balance between laws protecting private rights and those promoting the public interest.

Missourians spend countless hours enjoying the natural beauty, splendor and bounty of our state. They fish, they float, they hike, they hunt, they camp. They photograph wildlife, observe birds and introduce their children to streams and nature.

This recreation, which takes place on both public and private land, would not be available to us now or in the future without laws and regulations.

In fact, the entire management and conservation of Missouri's wildlife, fish and forests hinges on a number of legal decisions, most of which have maintained a delicate balance between laws protecting private rights and those promoting the public interest.

The very existence and operations of the Missouri Department of Conservation have been upheld in several major court decisions.

The first of these was Marsh v. Bartlett. In this test case in 1938, which involved a $10 fine against Marsh for catching a largemouth bass during the closed season in Dallas County, the State Supreme Court decided that the state had the authority to control game and fish within its borders and that it was not the function of the court to determine the wisdom of the policies of the Department of Conservation.

In a 1978 case, the Supreme Court upheld the constitutionality of the J of 1 percent conservation sales tax, which the voters approved in 1977.

A 1988 case involved the question of whether wetland habitat provided by the Conservation Department constituted a nuisance, because waterfowl drawn to the habitat consumed or damaged crops on nearby private lands. The court ruled in favor of the Conservation Department saying that the Conservation Departmen only provided habitat for the waterfowl and exercised no control over them.

Trespass

As a lawyer and an ardent outdoorsman, I find our state's trespass laws comprehensive and clear. In essence, if you go on someone else's property to fish or hunt without their permission, you may be guilty of the crime of trespass.

In addition, a landowner or tenant may bring a civil lawsuit for damages against someone who has trespassed on their property. The landowner or tenant is not required to be in actual possession or actually occupying that property at the time, nor does the property have to be fenced or posted with "No Trespassing" signs.

Liability to the landowner for someone injured on his or her property varies, depending upon whether the injured person was a trespasser or guest. The landowner has a duty to exercise reasonable care with respect to invited guests and to warn them of dangerous conditions that are not obvious. A landowner has no such obligation to a trespasser.

downers also have the right to the exclusive and quiet enjoyment of their property, according to a 1933 decision in the case of Dennig v. Graham.

Dennig owned Greer Springs at the time and for nearly two decades had stocked from 100,000 to 150,000 trout per year into the spring. He brought suit to prevent the public from fishing in the spring without his permission.

In this decision, the judge stated that, although the spring was one of the largest in the world (and, indeed, might be the Eighth Wonder of the World), it was owned by a private individual, who "is entitled to the quiet and peaceful possession of his property without the annoyance and interference of trespassers."

Navigable Streams

Landowners with navigable streams running through or adjacent to their property are not always entitled to the exclusive enjoyment of the stream, however.

Missouri has some of the most beautiful rivers and streams in our country. You can float in a boat or canoe down a navigable stream which travels over private property without the owner's permission. However, that does not mean you have the right to trespass over private property on either side of the river.

The Missouri Supreme Court discussed the rules applicable to navigable streams in the 1893 case of "Cooley v. Golden." That case involved a dispute over the ownership of an area located in the old bed of the Missouri River in Atchison County. The Missouri Supreme Court determined that the owners of land adjacent to a navigable stream do not have ownership rights which extend to the middle of the stream, but only to the water's edge.

Property owners can also claim such land as has been added to theirs by the regular process of accretion or which is uncovered through reliction, which adds to contiguous land through changes in the water's edge.

In 1954, the landmark case of "Elder v. Delcour" was decided by the Missouri Supreme Court. In this case, Elder claimed the right to float and fish on the Meramec River where it flowed across Delcour's farm in Dent County, several miles upstream from the mouth of Crooked Creek. At various points on Delcour's property, signs were posted reading: No hunting, fishing or trespassing without permission.

At the point where the Meramec River crossed Delcour's property it was navigable by canoes, rowboats and other small floating craft of similar size and nature. In the past, when logs and timber were customarily transported by floating, the Meramec River was used for that purpose as it crossed over the Delcour land. At points above and below Delcour's farm, the stream was heavily fished by sportsmen who waded, floated and also fished from the bank.

The specific incidents giving rise to the case were dramatic. Elder placed his canoe in the Meramec River at a public access area upstream from Delcour's property. He and his wife then proceeded to float down the stream, fishing as they went.

When the Elders arrived at the Delcour farm they came to a wire fence across the river. As Elder was pressing the fence down to lift his canoe over it, Delcour ordered him to stop and advised him that he was not permitted to float over private property, calling his attention to the no trespassing signs. He advised Elder that he would sue him for trespassing if he did not turn around and go back upstream.

Elder advised Delcour that he had a legal right to travel down the stream, fishing as he went and even to tie up his canoe at likely spots or wade in the bed of the stream. (The exact wording of their conversation was not included in the court opinion, but we can safely assume it was more colorful than this account of it). Elder then proceeded to lift his canoe over the wire fence and continued to float down the river in his canoe, fishing with his fly rod from the canoe as well as by wading.

In discussing Delcour's rights as a landowner, the Court specifically noted that "the waters of the Meramec River are public waters" and that the submerged area of its channel which crossed Delcour's farm was a "public highway" for travel by floating or wading, for business or for pleasure, and that in traveling the course of the stream, Elder had not trespassed on Delcour's property.

Significantly (and interestingly) the Court took judicial notice of the publicly known fact that "the Meramec River has long been known as a very popular fishing stream."

The Court noted that a number of prior cases had specifically found several other Missouri streams to be "public highways," including the Gasconade River in Pulaski County, the Current River, Indian Creek (in Washington and Franklin counties) and the Black River.

Thus, the law in Missouri is that adjacent property owners have ownership rights up to the edge of a navigable river since the bed of a navigable river is owned by the public. Adjacent property owners, however, own the bed under non-navigable rivers, subject to an easement for public travel by boat or wading if the river is suitable for use as a "public highway."

The 1957 case of "Sneed v. Weber" stated that, to be navigable under the Missouri rule, the stream must be capable of floating vessels or boats as are used in the customary modes of travel in pursuit of commerce. A stream is not navigable simply because a small boat may be navigated through a tortuous course. To be navigable, a stream must be navigable in its natural state, unaided by artificial means or devices; waters which may be made floatable only by artificial means are not regarded as navigable or as public highways. The Mississippi and Missouri rivers are unquestionably navigable rivers.

The 1920 case of "Hobart-Lee Tie Co. v. Grabner" took judicial notice that at the Gasconade River in Pulaski County may be found "the grandeur of the magnificent Ozark uplift; that the stream throughout the County of Pulaski is at many places narrow and its waters swift and beautiful; that in the bed of the Ozark streams there are shoals and bars which furnish a happy camping ground for the erstwhile fisherman; and an occasional rapid joins in the chorus of nature."

In the 1919 case of "State v. Wright," the court took judicial notice of the fact that the Current River is a "fine fishing stream." The 1973 case of "Burk v. Colley" acknowledged that the "cool, clear and sparkling waters" of the Current River are part of "many a float fisherman's fondest memory."

Hunting and Fishing Regulations.

In the "Elder v. Delcour" case discussed here, the Court stated that the title and ownership of fish in a Missouri stream are vested in the State of Missouri until an individual obtains possession of them in a manner permitted by law. Since the Meramec River as it passed over Delcour's farm was public water and a floatable highway, ownership of the fish in the stream belonged to the State of Missouri. The public had the right to fish in and take fish from the Meramec River as it crossed over Delcour's property, if done so in a lawful manner.

The Missouri Department of Conservation continuously reviews regulations pertaining to fishing and hunting. Before the adoption of new regulations or changes to existing ones, the public has a right to comment. Regulations are published yearly in the Wildlife Code of Missouri.

Hunting is clearly a dangerous activity. It is illegal to hunt with a weapon while you are intoxicated. In some states, a hunter who mistakes a person for game and fires at that person is presumed negligent as a matter of law and is strictly liable for the injuries to that person.

Missouri courts have not adopted this standard but have decided that a high degree of care is required when hunting and that a hunter should withhold firing until he clearly and unmistakably makes certain that he is shooting at game and not a human being. The "Ten Commandments of Firearm Safety" have been accepted as evidence in cases involving hunting accidents.

Laws to Conserve

The Missouri courts and Missouri legislature have attempted to fashion laws and regulations which conserve our state's natural and wildlife resources and, at the same time, balance the public good with private rights and interests. This is often a difficult task.

As so eloquently stated by the well-known Missouri conservationist, the late Leonard Hall, in his book Stars Upstream,

The need to preserve areas that are wild and natural increases in America with each day that goes by; for it has been truly said that wilderness is a resource which can shrink but never grow.

Hall firmly believed that we are stewards of the land with the duty to preserve inviolate our wild and natural resources and protect them from destruction in the name of progress, which, in his opinion, "takes no account of natural values." The conservation laws of Missouri, as well as the regulations of the Missouri Department of Conservation, attempt to uphold those ideals and preserve the bounties of nature for many generations to come