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Post by piercings4u on May 18, 2013 22:32:52 GMT -5
I have a question...I have 10 acres of land ...there is a huge lake that is on the adjoining property but the tip of the lake is on my property by about 50 yards or so...if I launch my boat in the lake from my property then can I use the entire lake? Please let me know if you know the answer
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Post by GS1 on May 18, 2013 22:40:46 GMT -5
If it is a lake and is not public water then it is private property the same as the 50 yards or so that is on your side of the property line. You would have to have permission from the owner.
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Post by Genesis 27:3 on May 18, 2013 23:17:28 GMT -5
 GS1 |
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Post by featherduster on May 19, 2013 5:25:18 GMT -5
Ask our resident Conservation officer,I am sure he can give you an answer that will stand up in court.
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Post by johnc911 on May 19, 2013 5:55:53 GMT -5
To answer your question no, no you cant trespass
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Post by Russ Koon on May 19, 2013 11:04:31 GMT -5
Seems to be some legal question.
I was informed many years ago by a DNR spokesperson that ANY shoreline ownership by the state made the waters of a lake open to use by the public providing they touch land only on the public portion of the shore while launching/landing.
I was asking in reference to a lake otherwise entirely owned by a church and used for some youth summer camps.
It would seem that the same would apply to a shared shoreline situation where neither party was the state, in that the the shared shoreline would ensure the shared use of the water, but not the land used to access it.
As it turned out, after contacting the leadership of the church, access was granted (and a donation was made, not necessarily a "quid pro quo" arrangement, much as it may appear to be), and I subsequently fished the lake by the much easier access through the church property. Better for both parties, as the church got a small annual donation and I didn't have to portage my canoe a couple hundred yards across state ground to go fishing. I avoided being there during the few weeks of the summer when they had their camps in operation, and everybody was happy.
Some years later, looking up access questions regarding public waters like rivers and the Great Lakes, I was introduced to more legal wrangling and various court decisions that have clouded the issue more than cleared it.
The oldest legal precedence seems to go back to old English common law that provided for the public to ba able to access the waters up to the "Ordinary High Water" level, which was ill-defined then and has been either ignored or defined just as loosely in court cases since. It was, at the time of it's inclusion in English Common Law, apparently a rejection of the claim of royalty and the wealthy to ownership of waters, while leaving them the ability to completely deny access over land.
Various interpretations and inferences have become standard practice, with or without being tested legally, ever since.
If at all possible, achieving a friendly agreement with the landowner of the major portion of the shoreline would be best all around. Attempting to defend your "right" to use the waters encompassed by the shared shoreline may end up paying for your attorney's dock fee for his yacht before you ever get to wet a line, even if you're right. That's the reality of it as best I can make out. Good luck in either case.
I'm pretty sure that the law is a better way to solve disputes than shooting, but it's not perfect, either, and often is inconsistent, perplexing, and ignored by the courtts we imagine are upholding it. I suspect the lawyers prefer it that way.
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Post by GS1 on May 19, 2013 11:39:46 GMT -5
I believe the law was different years ago. Now on a private lake a person owns the water the same as if it was land.
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Post by goosepondmonster on May 20, 2013 7:59:17 GMT -5
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Post by stevein on May 20, 2013 8:41:24 GMT -5
I think if the neighbor made the lake and it is on your property he would have had to have an agreement with you or the former owner before creating the lake. I would talk to the owner first before getting outsiders involved. Also what did the survey or deed have in it when you bought the place?
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Post by raporter on May 20, 2013 14:25:19 GMT -5
Imagine that, problems with jet flea operators.
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Post by firstwd on May 20, 2013 15:36:45 GMT -5
Where in that article did you get that you could trespass? |
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Post by DUCKMASTER1 on May 20, 2013 15:56:01 GMT -5
It used to not be that way, and land owners did not care if the rivers flooded their fields and guys hunted the fields, now it is so hard to hunt flood waters because of this law.
But that was the good ol days. I have traveled across private to get to public, but I do not set up on private unless I have permission. We were stopped by a landowner one time, and game warden told him that putting in off the public road was not a crime, and as long as they were not stopped or hunting on your property, they could travel across it because of the navagable water flow, now that has been about 5 years ago when that happened, but he was on our side for the most part. He told us not to stop or put any decoys or anchor off on their property, but we could cross it because the water in question was from the river.
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Post by goosepondmonster on May 21, 2013 7:56:25 GMT -5
Where in that article did you get that you could trespass? The post I quoted said you can't trespass, which I read as saying you can go to the other part of the lake and not be trespassing. The article I posted was an example showing that you can be popped for trespassing by being on a part of a lake that you do not own. For some reason folks believe that you have 'water rights' to an entire lake/pond even if you only own part of it. This was something that we dealt with at my grandma's last year involving my cousin and his jet ski. |
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Post by Russ Koon on May 21, 2013 21:16:06 GMT -5
That reason would be something called "riparian rights".
These rights began at least as far back as English common law dating back to the days of the Magna Carta, and some authorities put their origins even further back in history to the Romans.
They were originally meant to govern the use of moving waters, but were generally expanded to include the use the water surface in standing waters as well going back to the earliest real estate law in this country.
There are some differences between the accepted interpretations in the eastern and western halves of the country, with the eastern half leaning more towards the traditional interpretation that any owner of the shoreline has the right to use the entire surface of the lake.
In Indiana law, there are some listed limits and exceptions, but the main principle remains. Most of the limitations appear to deal with uses of the water that might be injurious to the other owners, such as polluting the water or altering its level.
Maybe the use of a jetski would fall under that definition in the eyes of an officer, and quite possibly it would be upheld in court as being so, but that ruling would be limited to the use of the jetski in the entire lake, not separate "ownership" of various areas of the water's surface. I can easily imagine a CO telling a jetski operator to use the machine only in "his" part of the lake as a means to settle a dispute without either party needing to make a lawyer richer, just as a beat cop might request that partiers turn down their music in response to a complaint rather than making an arrest for disturbing the peace without trying to resolve the situation amicably.
As in most other areas, there may be individual cases where the established legal principles get ignored. And there are often decisions and opinions given by even some law officers or local officials that are in conflict with the law, through lack of knowledge or the desire to take the easy way out and avoid conflict.
As with many of our rights, these riparian rights are not automatically guaranteed, but must be preserved by standing up for them in court.
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Post by goosepondmonster on May 22, 2013 7:49:07 GMT -5
I don't remember all of the verbiage, but my grandma's neighbor sent a letter from his lawyer to my grandma's house in regard to the jet ski. The gist of what I got out of it is that it was his water and he could say what happened on his part of the pond. The lawyer did cite a couple of different cases dealing with a similar issue.
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Post by Russ Koon on May 22, 2013 15:30:01 GMT -5
The lawyer was doing his job, representing his client. Sometimes that includes claiming some rights or privileges that don't clearly exist or that are up for discussion, but the attorney isn't required or legally responsible for the accuracy of the claims. His job is to put the most advantageous face on the matter for his client to see if he can get the desired result.
Sometimes the attorney's letterhead is enough to sway an argument. Other times, if the other party feels strongly enough to risk paying court costs and attorney's fees for taking the matter to court, a judge may get involved.
The judges decision does need to follow the law much more closely than the attorneys claims on behalf of either party, but even judges' decisions get overturned with some frequency when appealed.
Sounds like a reasonably amicable decision was reached that was probably best all around. Likely someone made that decision as the most pragmatic way to resolve the dispute....could have been your Grandma's attorney, or your Grandma, in deciding not to pursue the matter.
The letter of the law doesn't always yield the best results. For instance, the letter of the law says that if you hunt within such and such a distance of bait, you are guilty, whether or not you placed the bait or had any knowledge of it's presence. That has resulted in a few people being cited for hunting over bait that had been placed near their stands by an opponent who then called the law. Of course no CO would write the ticket if he knew or thought the person being cited was an innocent victim, but how are they to know?
Many other examples abound.
The personal touch provided by the LEO, the local prosecutor, or a wise attorney, in seeking a peaceable resolution to a situation that harm's neither party, often is the best answer to a situation, even when the letter of the law has to be overlooked to achieve it.
In the case of the jetski, if it kept the youngster from using it in the other owner's backyard, it probably prevented further legal action by the disturbed neighbor claiming injury to his enjoyment of the lake, disturbing the peace, etc.
Our lake association banned any new jetskis several years ago...legally had to grandfather in the ones that existed in the ownership of property owners in the association already, but they could not be replaced when they wore out. They can become pretty bothersome after a while. The association owned the lake so they could do so by a majority vote, but still legally had to protect the current owners from legal injury resulting from the action.
But to get back to the OP, I suspect the riparian rights would have attached to the 10 acre parcel, unless there was some unusual exception.
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Post by goosepondmonster on May 22, 2013 16:12:22 GMT -5
My grandma didn't want my cousin using the jet ski on the lake, he never asked in the first place, and the letter from the neighbor's lawyer was the final straw in the whole deal.
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Post by jamesaritchie on May 22, 2013 18:21:16 GMT -5
I have a question...I have 10 acres of land ...there is a huge lake that is on the adjoining property but the tip of the lake is on my property by about 50 yards or so...if I launch my boat in the lake from my property then can I use the entire lake? Please let me know if you know the answer .. Let's suppose you did not own the tip of that lake. Could you still use the lake? Can anyone come from off the street, bring a canoe and use the lake? No? Then obviously, it is possible to trespass on a lake. A lake is no different than land. It is land. It's covered with water, but it's still land, and still privately owned land. Even publicly owned lakes and rivers have regulations and laws about who can go on them, when they go on them, what they do can on them, etc. Just as with land, whoever owns a body of water sets the regulations and laws governing that body of water, including who can and cannot use it. |
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Post by GS1 on May 22, 2013 20:40:07 GMT -5
Rivers and lakes are completly different. Especially when it comes to navigatable waterways.
The question has been answered in the CO forum.
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Post by Russ Koon on May 23, 2013 11:48:13 GMT -5
OK, this question bugged me and I looked into it further just now.
Apparently established rule in Indiana, which has been cited in suits that got argued all the way to the Indiana Supreme Court, is that on small non-navigable private lakes, the use of the water IS in fact determined by the ownership of the land under it, which DOES follow the property lines just as though it were dry land.
The 1999 decision by the Indiana Supreme Court in the case of Carnahan v. Moriah seems to be the most recent and most definitive ruling.
There were other previous rulings by lower courts in Indiana that differed, including some that supported the principle that I thought still ruled, that recreational use of the surface waters of the entire body was shared by all shoreline owners.
Lots of intertangled legal points involved in the details, and some exceptions under various circumstances such as "adverse" usage, but the gist of it is that the recreational use of each shoreline landowner would be limited to that portion of the lake directly above the portion of the lakebed he has title to.
There still appear to be some exceptions that I couldn't find any legal precedent for. I have seen reference to riparian rights to the use of the surface waters of private lakes being included in the deeds to the property and transferred with those deeds as part of the purchase. This would probably constitute a legal exception, but I couldn't find any example of it being tested in court.
There is also a legal exception in the case of "adversarial easement" which basically means that the use had been previously established over a long period with the "acquiescence" of the majority property owner, but the proofs required for claiming such an exception make it negligible in most cases.
So, it looks like there are still considerably diverse opinions even within legal professionals about the matter, but the prevailing ruling, at least until it gets overturned, sides with the opinion expressed by Morrison on the "ask the CO" forum.
His answers seem to be right pretty often....probably our best source on here for legal answers. I still like to Google up my own sometimes, when the weather's not fit for doing something more fun, and the alternative is to get back to work out in the garage.
My earlier answers do still apply to moving waters and those larger lakes at least partially owned by the public, as near as I could determine.
That's all I'm probably going to dig up on the subject. The Lawnboy in the garage still needs reassembly and I have a dozen new carbons to cut and fletch, and I've about reached my upper tolerance for trying to interpret legalese for awhile.
Sorry to have misled with my previously expressed opinion, which appears to have been wro...., wr...., (still can't say it!)....., "factually incorrect". 8^)
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