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Illinois Wading Regs.


Terry Dodge

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There's a spot I use to fish off of a state Hwy. I would park on one side of the bridge, walk the side of the bridge down to

creek, enter the creek and wade an area about 75 yds. on each side of the bridge. People who live near there tell me that

I can not fish this area. Do they have a right to say this? I have respected their wishes for the last few years but have

always wondered if they had the right. Is there any site that I can go to to find an answer?

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It depends on the water you are talking about. In Illinois, if the waterway was declared navigable by the Army Corps of Engineers, like the Fox, Illinois, or Kankakee, you can use the waterway wherever. Smaller flows like the Apple, DuPage, Vermillion and others, people have deeds that say they might own all or part of the way across the river. So you may be trespassing. You could get arrested. Several years ago, there were many fights along the Apple where property owners were stringing wire across the river to keep canoeists out. Up there, a truce was worked out and the canoeists were tolerated but they are not allowed to stop and get out on private property.

The US Supreme court says that any waterway that can be paddled at anytime of the year is navigable and therefore property of the state. The problem is, going to court to fight the state of Illinois to change their view and to convince the property owner that their deed is invalid. That is an expensive fight that so far no one has been willing to challenge.

Every state has different laws concerning water access. For more information concerning river access rights go to; http://www.nationalrivers.org/

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Property owners DO NOT have to post their land to make it illegal for someone to trespass and signs do not always mean they have the legal right to keep people off the property. It easy to pound in a sign and post and no one may challenge and just beccause they don't post, doesn't mean anyone can just walk on their property. On the other hand, anyone who just trespasses without researching deserves any and all the grief they get, including arrest and fines if they are in fact trespassing. Are you ok with strangers walking through / trespassing your property? You can go to the county court house, find the property on a plat map, look at a copy of the deed which will describe the boundaries of the property. It usually ( not always ) will clearly, in black and white, describe whether the property owner HAS legal backing to keep you off the property. As Scott said, though, laws in this area are not always clear, deeds, as written may not actually give them those rights (even if written), and people are not willing to spend the effort & $ to challenge. If you do the research, you will at least know whether the land owner believes he has the right or is just trying to bully you out of public water he doesn't own. If you get a copy of the deed and present it to him, he may back down from a challenge, at least you will know if you have the right to fish.

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Not so fast, Mike Q.

 

I studied law in college and had to memorize most every IL criminal statute and looked up the trespassing law to see if it has changed, and it has not.

 

If there is no sign posted at the main entrance or anywhere else on the property OR nobody tells you to leave, you aren't technically trespassing.

 

Ironically, I had a stint in the hospital while taking those law classes.

A group of us got a little rambunctious (and a little drunk) one night and decided to climb a water tower. On the way down, I slipped on the ladder and fell inside the tower.

Got out of the hospital, went to the police station (fully aware of what the one charge would be, as I was doing homework in a hospital bed with the statutes in front of me) and was charged with criminal damage to property (broken padlock). The police admitted they wanted to tack on trespassing, but there was no sign and nobody to tell us to leave.

 

(720 ILCS 5/21‑3) (from Ch. 38, par. 21‑3)

Sec. 21‑3. Criminal trespass to real property.

(a) Except as provided in subsection (a‑5), whoever:

(1) knowingly and without lawful authority enters or

remains within or on a building; or

 

(2) enters upon the land of another, after receiving,

prior to such entry, notice from the owner or occupant that such entry is forbidden; or

 

(3) remains upon the land of another, after receiving

notice from the owner or occupant to depart; or

 

(3.5) presents false documents or falsely represents

his or her identity orally to the owner or occupant of a building or land in order to obtain permission from the owner or occupant to enter or remain in the building or on the land;

 

commits a Class B misdemeanor.

For purposes of item (1) of this subsection, this Section shall not apply to being in a building which is open to the public while the building is open to the public during its normal hours of operation; nor shall this Section apply to a person who enters a public building under the reasonable belief that the building is still open to the public.

(a‑5) Except as otherwise provided in this subsection, whoever enters upon any of the following areas in or on a motor vehicle (including an off‑road vehicle, motorcycle, moped, or any other powered two‑wheel vehicle) after receiving, prior to that entry, notice from the owner or occupant that the entry is forbidden or remains upon or in the area after receiving notice from the owner or occupant to depart commits a Class A misdemeanor:

(1) A field that is used for growing crops or that is

capable of being used for growing crops.

 

(2) An enclosed area containing livestock.

(3) An orchard.

(4) A barn or other agricultural building containing

livestock.

 

(B) A person has received notice from the owner or occupant within the meaning of Subsection (a) if he has been notified personally, either orally or in writing including a valid court order as defined by subsection (7) of Section 112A‑3 of the Code of Criminal Procedure of 1963 granting remedy (2) of subsection (B) of Section 112A‑14 of that Code, or if a printed or written notice forbidding such entry has been conspicuously posted or exhibited at the main entrance to such land or the forbidden part thereof.

© This Section does not apply to any person, whether a migrant worker or otherwise, living on the land with permission of the owner or of his agent having apparent authority to hire workers on such land and assign them living quarters or a place of accommodations for living thereon, nor to anyone living on such land at the request of, or by occupancy, leasing or other agreement or arrangement with the owner or his agent, nor to anyone invited by such migrant worker or other person so living on such land to visit him at the place he is so living upon the land.

(d) A person shall be exempt from prosecution under this Section if he beautifies unoccupied and abandoned residential and industrial properties located within any municipality. For the purpose of this subsection, "unoccupied and abandoned residential and industrial property" means any real estate (1) in which the taxes have not been paid for a period of at least 2 years; and (2) which has been left unoccupied and abandoned for a period of at least one year; and "beautifies" means to landscape, clean up litter, or to repair dilapidated conditions on or to board up windows and doors.

(e) No person shall be liable in any civil action for money damages to the owner of unoccupied and abandoned residential and industrial property which that person beautifies pursuant to subsection (d) of this Section.

(f) This Section does not prohibit a person from entering a building or upon the land of another for emergency purposes. For purposes of this subsection (f), "emergency" means a condition or circumstance in which an individual is or is reasonably believed by the person to be in imminent danger of serious bodily harm or in which property is or is reasonably believed to be in imminent danger of damage or destruction.

(g) Paragraph (3.5) of subsection (a) does not apply to a peace officer or other official of a unit of government who enters a building or land in the performance of his or her official duties.

(h) A person may be liable in any civil action for money damages to the owner of the land he or she entered upon with a motor vehicle as prohibited under subsection (a‑5) of this Section. A person may also be liable to the owner for court costs and reasonable attorney's fees. The measure of damages shall be: (i) the actual damages, but not less than $250, if the vehicle is operated in a nature preserve or registered area as defined in Sections 3.11 and 3.14 of the Illinois Natural Areas Preservation Act; (ii) twice the actual damages if the owner has previously notified the person to cease trespassing; or (iii) in any other case, the actual damages, but not less than $50. If the person operating the vehicle is under the age of 16, the owner of the vehicle and the parent or legal guardian of the minor are jointly and severally liable. For the purposes of this subsection (h):

"Land" includes, but is not limited to, land used for

crop land, fallow land, orchard, pasture, feed lot, timber land, prairie land, mine spoil nature preserves and registered areas. "Land" does not include driveways or private roadways upon which the owner allows the public to drive.

 

"Owner" means the person who has the right to

possession of the land, including the owner, operator or tenant.

 

"Vehicle" has the same meaning as provided under

Section 1‑217 of the Illinois Vehicle Code.

 

(Source: P.A. 94‑263, eff. 1‑1‑06; 94‑509, eff. 8‑9‑05; 94‑512, eff. 1‑1‑06; 95‑331, eff. 8‑21‑07.)

 

 

 

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It has been my assumption for years that if a stream passes through private property, the landowner owns the river BOTTOM, not the water. If it is considered a navigatable waterway, you have the right to pass thru in a watercraft as long as you "keep your feet wet" and don't touch the bottom.

 

Other states, such as Wisconsin, have leased waterways from private landowners for public access and anglers have the right to walk the banks up to the "normal high water mark" on the bank. I fish S.W. Wisconsin quite a bit, and can access most trout streams at any bridge and walk the banks as long as I stay below the normal high water line, as long as the area is not specifically posted "No Trespassing". So far, Illinois has not adopted this leasing program, but I sure wish they would. Not likely, however, given Illinois' tendency to overspend in other areas & operate in the red. Gotta love Illinois politics...... :lol:

 

Brian

 

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Mr. Clifford :o

I'm gonna have to study that post for about a week. Thanks for the great info.

I do need to say that I hope no-one thinks that I'm trying to be a jerk about this spot.

It's a good spot and like I said I've respected the so called land owners wishes. You

only have to tell me once and the land owner was nice about it and that's why I've

respected it all these years just the same as I'm sure all of you would. The thing

that got me confused about it was - it's a state owned highway, a state owned bridge

and don't the state own so much land on each side of the highway and bridge? Then

I'm in the creek. Never on land. Now the part where people can own the land under the water...........

I can never get a straight answer from anyone on this. Also does it mean anything

if this creek has a registered dam on it?

Again thanks for the info.

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Now Mike Clifford - not so fast!!!!!!!!!!!!!!!!!!!!! Nothing I stated is untrue. Because the owner does not post does not mean they cannot request you to leave and once known you have to immediately leave or you can be arrested and charged with tresspass. The owner does not give up any rights just because he does not post. Further more, without written permission, all the owner has to do is claim he has made the notice previously to the trespasser and without proof of permission to trespass (written permission / contract / lease) you can be arrested for trespass at the request of the property owner. When the case goes to court, it becomes an issue of when / if notice was given and without proof of permission to enter upon anothers property it becomes your word against the property owners. He claims he made the notice. You have nothing to prove otherwise. Whose side do you think the court will side on.

 

Trespass - to invade the property or rights of another without consent. To use the excuse that the property wasn't posted as an excuse to trespass is plain Bullsh*t. Those that do are wrong and they know it. I stand by my previous statement and don't see how your statement " you are not tecnnically trespassing " has any bearing on the issue. An ethical sportsman will ask / seek permission, or research / discover whether the land is public domain and whether permission is required, just like knowing the general laws / regulations and site specific regs before you engage in fishing or hunting. It is all those people who have trespassed (whether or not they were charged or the owner stopped what he was doing to chase down the person and request them to leave) who make it so hard to gain access to ponds, streams, or land for hunting today. Mike, with all the stands you have taken for so many good causes in the past, I can't really believe you would imply (by virtue of your post) that if the land is not posted it has any bearing on whether or not someone should /could just enter the property, for what ever purpose.

 

PS, as a property owner who owns 260 ft of property along a creek I am very familiar with the trespass laws.

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No, I didn't take a stand on anything.

Actually, I should have added much more but was headed out the door as I left the response.

That wording would have read that for practical purposes, using better judgment should always take precedence.

Just thought I'd share the actual law "as it is written", that's all.

 

I've got a stack of Landowner Permission Cards, and include them in every Adpot-A-Stream kit.

The person seeking permission fills out their copy, and another copy goes to the landowner.

The IDNR distributes these, if I can find the link again I'll post it here.

So if Scott above wants to fish that creek through farmland, he would knock on doors and present the card while asking for permission.

If questioned by local police or a CPO, he is covered with that on his person.

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Furthermore, if a landowner does in fact own the land under a creek a person would have no way of knowing if there is a sign at the main entrance on every residence or not unless they were to check.

Practicality says to knock on doors.

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It has been my assumption for years that if a stream passes through private property, the landowner owns the river BOTTOM, not the water. If it is considered a navigatable waterway, you have the right to pass thru in a watercraft as long as you "keep your feet wet" and don't touch the bottom.

 

Other states, such as Wisconsin, have leased waterways from private landowners for public access and anglers have the right to walk the banks up to the "normal high water mark" on the bank. I fish S.W. Wisconsin quite a bit, and can access most trout streams at any bridge and walk the banks as long as I stay below the normal high water line, as long as the area is not specifically posted "No Trespassing". So far, Illinois has not adopted this leasing program, but I sure wish they would. Not likely, however, given Illinois' tendency to overspend in other areas & operate in the red. Gotta love Illinois politics...... :lol:

 

Brian

 

 

Brian, I think I might clarify a little for you.

 

Federal law is that waterways are held in the public trust. If a stream is navigable in fact, it is navigable. Navigable = wade or float up to high watermark, portage around obstructions. You are not restricted to below the highwatermark if it can be demonstrated you were portaging. You may not cross private land to access. Therefore, enter at bridges. The stream does not need to be navigable all year, just at some point in the year

 

The question then becomes road/bridge easment access. Usually, the state owns a 10' easement from the road. This can't be posted as it isn't owned. Now county officers may not know the actual laws. That's where there might be a problem.

 

Non-navigable streams are therefore pretty tiny in theory. As in small, trickly ditches. In Indiana, we have a ridiculous list of streams that are considered non-navigable when by federal law they are navigable. Completely arbitrary. If you were ever taken to court for tresspassing you'd get off scott free due to federal law.

 

A non navigable stream you can still float. Technical tresspassing would be if you touched bottom or stream bank.

 

Those are the key differences. Illinois probably has a list of navigable streams somwhere.

 

Few people are even aware I am there. I rarely ask permission on non navigable streams. I just go. I don't look like a criminal or meth head. I can talk my way into or out of a lot. I've been told to leave 3 times in 500+ trips.

 

Asking permission is fine, but I'd rather not wake somebody up if I don't have to. I fish so many different places, if I get left a note, I don't fish there again unless I ask permission. If I don't get a note, it's game on. No one wants to chase you upstream through the woods. People are too lazy out in the country to waste time with you. Usually put cell number in car window and note says went canoing/fishing.

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Mike, I never said you took a stand on anything. You also singled me out instead of just posting your take on the issue - are you a lawyer offering a legal opinion or just stating your interpretation? What was your point to bring up the fact that you weren't "technically illegal" if not to imply it was somehow ok. I think the information in your follow up replies were much more pertinent to the issue then the fact that "technically you are not illegally" trespassing if the property is not posted where you choose to enter it. Not knowing whether you were going to add anything to it, I felt compelled to make my post as I felt your original reply could be construed as an ok to trespass if the property was not "posted" because it was not "technically illegal". Furthermore, I will do some more checking with my lawyer, as the section you were quoting was for "criminal" trespass. I was under the impression from (verbal discussions with a lawyer) there were two statutes for trespass - one for " criminal" trespass, which applied to posted property or repeat offenses and another for regular unintentional & first time offenses on non posted property, with "criminal trespass" carrying heavier penalties & fines. Aside from all of that it is more than just practical to knock on doors, IT IS ESSENTIAL, if you want to promote our sport. Think about if you owned a pond or property with water flowing through it. Would you want any and every stranger fishing it? Putting you at risk for possible law suits if they get hurt? Possibly damaging the property or the resource? I know people tend to think of a stream and the fish that swim through them being more public domain then a pond or lake. The other issues, besides who owns the fish or wildlife are still relevant. Unfortunately too many people feel " Asking permission is fine, but I'd rather not wake somebody up if I don't have to. I fish so many different places, if I get left a note, I don't fish there again unless I ask permission. If I don't get a note, it's game on. No one wants to chase you upstream through the woods. People are too lazy out in the country to waste time with you. usually put cell number in car window and note says went canoeing/fishing. " I guess they were just too lazy to post a sign every 10 feet around their properly too. When you go seeking permission and you get screamed at, treated rudely, or the dogs are turned loose on you, remember the property owner may not have been just another ahole but just tired and annoyed of wasting his time chasing all the other trespassers before you. Terrydodge, I agree with scot, you have nothing to be sorry about, and bterril I am not trying to pass judgment on you either. I am just trying to make a point. I like to think most people are fine ethical sportsmen who just really do not think about the ramifications of their actions or put themselves in the property owner’s shoes. They tend to focus on things like "they" are "only fishing or canoeing", "they" would never sue if "they" stumbled down a creek bank and broke something or worse, "their" family would never sue if somehow they drowned or got killed on the property, "they" would never leave trash, damage the property, or resource". We all know from experience, there are plenty of "theys" out there that don't fit in this category. I hope you understand where I am coming from. I would never let someone bully me out of fishing some place I have a right to be but I will always do the leg work first and know I have that right, or seek permission first, and respect the property owners rights and decision to allow or refuse access as I would like to think any member of the ISA would do.

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It depends on the water you are talking about. In Illinois, if the waterway was declared navigable by the Army Corps of Engineers, like the Fox, Illinois, or Kankakee, you can use the waterway wherever. Smaller flows like the Apple, DuPage, Vermillion and others, people have deeds that say they might own all or part of the way across the river. So you may be trespassing. You could get arrested. Several years ago, there were many fights along the Apple where property owners were stringing wire across the river to keep canoeists out. Up there, a truce was worked out and the canoeists were tolerated but they are not allowed to stop and get out on private property.

The US Supreme court says that any waterway that can be paddled at anytime of the year is navigable and therefore property of the state. The problem is, going to court to fight the state of Illinois to change their view and to convince the property owner that their deed is invalid. That is an expensive fight that so far no one has been willing to challenge.

Every state has different laws concerning water access. For more information concerning river access rights go to; http://www.nationalrivers.org/

While I've always known that under Illinois law landowners can own the streambed on non navigable rivers I didn't think they owned the water flowing over it as well as they do in some states such as Wyoming where I' ve actually encountered an electrified fence strung across a river.If that's true than those landowners on the Apple removed those wires because they had no right to block watercraft in the 1st place. If it's not true than all the tubers,kayakers,canoeists on rivers like the Dupe are trespassing and by erecting canoe access sights the erecting government agency is contributing to an illegal activity.

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Folks:

 

Here is the "official" deal as I have called Springfield and spoke with an attorney that represents the state's interests. The law in Illinois is thus:

 

If the stream is not listed as a navigatable stream (yes, there is a list that you can obtain from the state), then permission has to be gained to "legally" canoe or wade the said stream. No, the landowner does not own the water that flows through their property, but does supposedly own the bottom of the stream. That is the "true" law in Illinois. Do I agree with it...............hell no! But it is what it is.

 

When it comes to government agencies constructing canoe accesses, I asked the same question to the attorney in Springfield. He told me to check to see who constructed the launch? In every circumstance that I checked on it was not the state that constructed the launches but cities/park districts/ etc. NOT THE STATE. The state will not construct any canoe launches unless the launch and at least some water downstream is public.

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Would rather discuss than argue, Mike.

(Yes, I had forgotten that you live on a creek....my bad)

 

Back in June of 2005, legislators amended the Recreational Use act to provide limited liability for landowners who allow hunting or recreational shooting on their property at no cost. Unfortunately, due to back-room wheeling and dealing orchestrated largely by trial lawyers, many other recreational activities were omitted at the last minute.

 

That's why there's currently no limited liability for Illinois landowners who allow fishing, conservation activities, hiking, birdwatching, trapping, rock climbing, horseback riding, swimming, boating, camping, sledding, snowmobiling or even picnicking.

 

Unless this has changed?

From the link below, it appears to still be as amended.

If anyone knows different, please speak up.

 

Attempts to extend liability protection to those activities have stalled for the past three years. That, even though most Illinois representatives agree this is a no-brainer and despite the fact more than 40 other states have similar legislation.

 

 

Time to start pressuring lawmakers even more, and get this change reversed.

Link to the Recreational Use of Land and Water Areas Act:

http://www.ilga.gov/legislation/ilcs/ilcs3...Water+Areas+Act.

 

From: SURVEY OF ILLINOIS LAW: THE LATEST TWIST

ON THE ILLINOIS RECREATIONAL USE OF LAND

AND WATER AREAS ACT: CLAMPING DOWN ON

LANDOWNER IMMUNITIES

http://www.farmdoc.uiuc.edu/legal/articles...cUseAct_SIU.pdf

The effect of the Illinois Supreme Court decision was predictable.

Increased fear of premises liability, or even the threat of lawsuits

alleging responsibility for injuries sustained on their property, has

compelled many landowners to restrict access to their land to all except

their closest friends and relatives. As a direct result of the court’s

decision, many users of rural open-space have seen their access to

privately-owned land restricted and their attendant recreational

activities eliminated or pushed onto already oversaturated public lands.

Meanwhile, a vast area of privately-owned land with high recreational

potential lies underutilized within the state.

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Folks:

 

Here is the "official" deal as I have called Springfield and spoke with an attorney that represents the state's interests. The law in Illinois is thus:

 

If the stream is not listed as a navigatable stream (yes, there is a list that you can obtain from the state), then permission has to be gained to "legally" canoe or wade the said stream. No, the landowner does not own the water that flows through their property, but does supposedly own the bottom of the stream. That is the "true" law in Illinois. Do I agree with it...............hell no! But it is what it is.

 

When it comes to government agencies constructing canoe accesses, I asked the same question to the attorney in Springfield. He told me to check to see who constructed the launch? In every circumstance that I checked on it was not the state that constructed the launches but cities/park districts/ etc. NOT THE STATE. The state will not construct any canoe launches unless the launch and at least some water downstream is public.

John you wouldn't have happened to find out how to obtain the list or if it's able to be accessed online somehow. Thanks Bob

 

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Thanks for the info, Jonn.

 

Here is one interesting list:

http://www.lrc.usace.army.mil/co-r/section10.htm

 

Mike Q-

Have you ever found out definitively what the deal is with that portion of water on the Kankakee near the confluence (connected to the river) that the landowner(s) routinely chase people from that are in boats?

A clear case of the navigability/high water mark being the correct interpretation, unless I'm mistaken.

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I don't know for a fact. What I have been told is - when the Dresdon dam was built, much of the land that was flooded was never purchased by the state or federal goverment. This is what allowed owernship of some of the islands on the river. They were private proprty and becam islands when the river was backed up from the dam. This is what allows them to lease campsites and the premis for negating the usual "bank" being defined by the high water mark. Since they owned the land that was flooded by the installation of the dam, the actual river bank is somewhere out by the channel. Since it is a navigible stream, they cannot prevent any boating / fishing activity on the water, even that created by the dam. Again, I have no facts to back this story up but it is what is commonly accepted in the area.

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Fascinating story, Mike.

 

Can't say how I'd feel if it was my property and it got flooded.....though I'm assuming there is an original owner or two still hanging around, and rather bitter to this day.

I have seen that island not far downstream from you up for sale.

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