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McCook Gazette

Rivers public land?

Friday, November 16, 2012

Dear Editor,

The Gazette published an article recently that said landowners own the river and therefore hunters and others could not use the rivers. However, the Supreme Court has consistently upheld that rivers and such have been public land since ancient times. I refer you to the following website for more information. Thank you.

http://www.nationalrivers.org/us-law-menu.htm

Kevin J. Fink

Stratton

EDITOR'S NOTE -- Public use applies only to flowing water itself. An attorney general's opinion issued in 1985 states: "The public may not utilize those riparian lands below the high water line for the purpose of hunting, fishing, boating and other recreation activities without the permission of the landowner except to portage or otherwise transport a non-powered vessel around a fence or obstruction in the river."

More information is available at

www.nebraskasurveyor.com/rip-rts.html

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  • Dear Editor,

    The key word in the 1985 Attorney General opinion is "Riparian Lands".

    Since most lands in Nebraska are granted or conveyed to the Thread or Thalweg of a stream, the lands of concern are those exposed by the variations in water level. Right of usage of those exposed lands is limited to public use, as it now becomes a usable part of the deeded lands and can be occupied.

    An exception classifying the types of entries allowed by the general public to these lands is limited to situations where portage of a non-powered vessel around an obstacle in the stream becomes necessary, such as an encounter with a fence or other obstruction preventing passage.

    I don't see where the opinion limits the type of vessel which can be used in the stream itself; it simply states the type of vessel that is allowed to be transported across the exposed private lands.

    As long as water continues to flow in a watercourse, private ownership does not attach because the possession that is necessary for ownership cannot occur. Meng v. Coffee, 67 Neb. 500, 93 N.W. 713 (1903); Crawford Co. v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903).

    To me this indicates the general public retains the right of use of those lands still covered by water, as it has yet to fulfill the requirements of private ownership.

    I would think this would also apply to water impoundment areas that are an integral part of the stream system itself and are interconnected, regardless of whether or not the water appears to be visibly moving.

    Just my own opinion.

    -- Posted by Geezer on Sat, Nov 17, 2012, at 10:37 PM
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