"Normal high water mark"

[mkonnert]

I'm sure this topic has been covered many times before, but I'm interested in people's input.

I was fishing a favourite stretch of lower Fallentimber, when a landowner approached me and told me I was trespassing and to get off his land. I pointed out that he doesn't own the river or the bank up to the normal high water mark. I had always assumed that this meant the level that the river reached its highest during a normal spring runoff. He told me (yelled really) that unless I was in the water, I was on his land. In his words, "If I can see bootprints on it, it's my land." I should point out that I didn't cross his land to get to river, nor was I more than 5 or 6 feet from the water's edge. The very fact that I was leaving bootprints on the mud meant that the water had recently covered the land where I stood. Nor was I doing anything destructive or obnoxious; I was walking the bank and fishing. I gathered this wasn't his first run-in; at one point he said "What is it with you people?"

I didn't pursue it, because I didn't want to escalate the situation, and I was already as far downstream as I normally go. I also didn't want to enlarge the chip on his shoulder. I was also unsure of what precisely was meant by "normal high water mark." So, when I got home, I did a bit of online research. It turns out that the whole concept of who owns what when it comes to river banks is quite vague. There are widely varying opinions and interpretations, ranging from the landowner owns everything to water's edge, to public land extending 150 feet from the water,

I'd like people's thoughts on a couple of different issues. What is your understanding of public lands and river banks? I'd also be interested to hear about others' experiences in dealing with hostile landowners? How have you handled it? I'm not thinking of this particular a$$hat (although I would welcome that), but more generally. Where do we find the balance between our upholding our rights as citizens and maintaining cordial relations with landowners?

[danhunt]

My understanding is the same as yours provided that it is a navigable waterway (not flowing only seasonally or prone to drying up completely in certain years), not federally controlled land (eg military bases and/or native land reserves) or lands that were originally deeded by the Hudson's Bay Company (there is one of these on the Crowsnest where the bed and breakfast is).  I'm curious, was this just upstream of the campground?  If not, the land owner who owns the home on the north bank of that section upstream of the bridge seems to have a creative interpretation of river access laws as well.

I think all you can do is stay polite, state your case and encourage them to call the RCMP if they disagree.  If they threaten you, offer to call the RCMP on their behalf.  If they threaten you with a weapon, apologize, leave, and as soon as you're safe definitely call the RCMP.

[mkonnert]

Thanks. That's pretty much my take on it too. It's further down than the campground, below the bridge, if I'm thinking of the right campground.

[TightLinesJ]

I've been under the same interpretation as you fella's , however that's just from word of mouth from different fisherman and forums. What is the actual legislation that states that being within the high water mark is public land? I'm just speculating, but isn't the actual legislation listed under the federal ocean's and fisheries act?

If someone could chime in with that, that'd be greatly appreciated. 

[bcubed]

 

I deal with Public Lands with my work, and it's a fairly complicated matter. The major issue is that 'technically' only a Legal surveyor can specify where that mark is. Typically, it's pretty damn close to the 1:2 year flood line, or where the vegetation trim line is.

From the surveyors act:

Quote

Natural boundary

17(1)  A surveyor who needs to determine the position of a natural boundary when performing a survey under this Act may do so by any survey method that has the effect of accurately determining its location at the time of survey, relative to the surveyed boundaries of the affected parcel.

(2)  When surveying a natural boundary that is a body of water, the surveyor shall determine the position of the line where the bed and shore of the body of water cease and the line is to be referred to as the bank of the body of water.

(3)  For the purposes of this section, the bed and shore of a body of water shall be the land covered so long by water as to wrest it from vegetation or as to mark a distinct character on the vegetation where it extends into the water or on the soil itself.

For the actual case of who owns the land, see the Water Boundaries information from AEP, and the information on accessing it.

https://www.alberta.ca/water-boundaries.aspx

Quote

Crown as owner

2.1   The right, title and interest of the Crown as owner of public land is confirmed.

Title to beds and shores, etc.

3(1)  Subject to subsection (2) but notwithstanding any other  law, the title to the beds and shores of

                             (a)    all permanent and naturally occurring bodies of water, and

                             (b)    all naturally occurring rivers, streams, watercourses and lakes,

is vested in the Crown in right of Alberta and a grant or certificate of title made or issued before, on or after May 31, 1984 does not convey title to those beds or shores.

(2)  Subsection (1) does not operate

                             (a)    to affect a grant referred to in subsection (1) that specifically conveys by express description a bed or shore referred to in subsection (1) or a certificate of title founded on that grant,

                             (b)    to affect the rights of a grantee from the Crown or of a person claiming under the grantee, when those rights have been determined by a court before June 18, 1931, or

                             (c)    to affect the title to land belonging to the Crown in right of Canada.

(3)  For the purposes of subsection (1), a river, stream or watercourse does not cease to be naturally occurring by reason only that its water is diverted by human act.

RSA 1980 cP‑30 s3;1984 c34 s3

To put it simply, unless they specifically have it on their title, a watercourse is crown claimed, and you have every right to be there. Worth fighting over, i'm doubtful, especially in that area, but worth asking for a name and phone number so you can talk to a land officer on it.  I've had good and bad interactions with landowners on the Fallentimber, including where they have strung fences across the river (definitely illegal under both the Public Lands Act and Canada Navigable Waters Act).

I would suggest touching base with the Public Land Officer for the region and bringing up the interaction and location. 

[TightLinesJ]

I found this, which basically regurgitates what bcubed has posted.....

https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/earthsciences/pdf/Water-bounds-monograph-English-web.pdf

It's always good to be confident in dealing with these interactions, thanks bcubed

[monger]

Where the grass meets the mud....that pretty much leaves you standing in the water in a lot of places.

Probably best to talk to the landowner along the section you want to fish before you get started. Having run-ins with grumpy guys sours the day

[northfork]

Definitely sours the day but hold your ground and be polite. Many of these guys are the way they are because they've been successful with these agressive confrontations and not dealt with someone standing their ground. If you put your tail between your legs and walk away, they think they are right and then get more confidence for the next time. Monger pretty much hit it on the head for my rule of thumb, where the grass meets the mud. Sometimes you have to bite the bullet and sacrifice a run by walking through it in order to stay legal. Just part of the game. There's lots of good ones too.

As it was pointed out if it becomes an issue offer to call the RCMP for them. As for the fences across the creek, I walk through them. Shouldn't be there even if their quarter is on both sides of the creek.

[threepwood]

On 6/16/2020 at 2:44 PM, bcubed said:

To put it simply, unless they specifically have it on their title, a watercourse is crown claimed, and you have every right to be there. Worth fighting over, i'm doubtful, especially in that area, but worth asking for a name and phone number so you can talk to a land officer on it.  I've had good and bad interactions with landowners on the Fallentimber, including where they have strung fences across the river (definitely illegal under both the Public Lands Act and Canada Navigable Waters Act).

I would suggest touching base with the Public Land Officer for the region and bringing up the interaction and location. 

Absolutely - I think this bears repeating. It's important that we assert our right to access public lands and waterways. Be polite but don't yield on the issue.

[ÜberFly]

I actually have pulled Landtitles (or have copies) for "Sara's" (the land mentioned above) and for a place on the JP, proving them wrong when confronted (hasn't come to that, but I'm prepared)...

P

[Sage]

Good learning for me, appreciate the great thread mkonnert. Thank you for starting this.

[Jayhad]

I recently had the exact same interaction, but I asked the guy his name and if his property operated a business.  I then pulled out my phone and made it clear I was calling the cops. I told him I needed his info as I needed to know who I was going to have charged and sued for violating my charter given rights.

He stated we didn't need to do that but I still had to leave,

I responded with he has 3 options,

1 me calling the cops

2 me posting on all my social media where the best brown trout fishing is on this stream and he'll have to deal with all of us legally fishing

3 he can walk back to his house educated

I also told him at the end of this id still be fishing it. He walked away muttering.  We have to stand up to these guys. I have talked to anglers that have been scared off of this property numerous time.  The land owner does it because he gets away with it.

 

I also go to local detachment if the land owner gets threatening, even if nothing happens just to have the record.

Stand for our rights guys, we loose stuff daily.

[mkonnert]

Thanks everyone. Jayhad, are you saying you had this interaction with the exact same guy?

[northfork]

On 6/18/2020 at 11:53 AM, Jayhad said:

I recently had the exact same interaction, but I asked the guy his name and if his property operated a business.  I then pulled out my phone and made it clear I was calling the cops. I told him I needed his info as I needed to know who I was going to have charged and sued for violating my charter given rights.

He stated we didn't need to do that but I still had to leave,

I responded with he has 3 options,

1 me calling the cops

2 me posting on all my social media where the best brown trout fishing is on this stream and he'll have to deal with all of us legally fishing

3 he can walk back to his house educated

I also told him at the end of this id still be fishing it. He walked away muttering.  We have to stand up to these guys. I have talked to anglers that have been scared off of this property numerous time.  The land owner does it because he gets away with it.

 

I also go to local detachment if the land owner gets threatening, even if nothing happens just to have the record.

Stand for our rights guys, we loose stuff daily.

Thank you Jay, this is how you do it.

[Jayhad]

On ‎6‎/‎20‎/‎2020 at 12:08 PM, mkonnert said:

Thanks everyone. Jayhad, are you saying you had this interaction with the exact same guy?

Realistically its probably a different guy, I roll brown trout streams in the fields and most are bordered with private land. I hide a lot just to avoid confrontations.  Its part of the reason I'm building a mini jet boat, if I see a guy coming on his atv I'm just going to jet out.

 

It's a shame, I'd love to post up the names of the land owners that are totally cool, but then id have to see all of you.

[jayanderson]

I can't believe how many people posting do not have the courtesy to ask land owners for access to property! With all of the information that is really available (county maps, iHunter app) it is inexcusable not to make a phone call or knock on a door, shake a hand and state your business. As someone who has spent years hunting on private land and being farmed raised I find it hard to fathom how many people in this sport claim a right to trespass by way of a loophole that is meant to protect navigation/commerce (the movement of goods and services by way of water, example one logging company couldn't buy of a section of river to stop another company moving logs, or as applies to mining, fur trade etc.) People are spending thousands on gear/fuel and won't spend the money for a few maps and couldn't be troubled by a simple human interaction. This year I lost access due to some land changing ownership and I can totally sympathize with the land owner's reasoning, too many people trespassing without permission! I hadn't been out on the land in question for a couple years but heard rumour of it changing hands, checked the maps, went for a drive and  knocked on his door. We had a good friendly talk for well over an hour, lots to BS about as I come from a family farm background,  and he explained some of the trouble he's had with the going's on and the lack of courtesy/respect. He runs a third generation small mixed farm operation who worked oil and gas when times weren't that rosy for agriculture and put three kids through university. It took hard work and smarts to get his hand on that quarter, people didn't respect that. Show some respect out there!

[northfork]

10 hours ago, jayanderson said:

I can't believe how many people posting do not have the courtesy to ask land owners for access to property! With all of the information that is really available (county maps, iHunter app) it is inexcusable not to make a phone call or knock on a door, shake a hand and state your business. As someone who has spent years hunting on private land and being farmed raised I find it hard to fathom how many people in this sport claim a right to trespass by way of a loophole that is meant to protect navigation/commerce (the movement of goods and services by way of water, example one logging company couldn't buy of a section of river to stop another company moving logs, or as applies to mining, fur trade etc.) People are spending thousands on gear/fuel and won't spend the money for a few maps and couldn't be troubled by a simple human interaction. This year I lost access due to some land changing ownership and I can totally sympathize with the land owner's reasoning, too many people trespassing without permission! I hadn't been out on the land in question for a couple years but heard rumour of it changing hands, checked the maps, went for a drive and  knocked on his door. We had a good friendly talk for well over an hour, lots to BS about as I come from a family farm background,  and he explained some of the trouble he's had with the going's on and the lack of courtesy/respect. He runs a third generation small mixed farm operation who worked oil and gas when times weren't that rosy for agriculture and put three kids through university. It took hard work and smarts to get his hand on that quarter, people didn't respect that. Show some respect out there!

Where did you read that none of us have permission to access creeks via private land? I know there is at least three of us in this thread that do....  And I do get your point - I have permission on a handful of places I access creeks to fish, and I hunt predominately private land myself too, but I guess we're all idiots....

Are you new to fly fishing? I think most of us on these brown trout creeks aren't fishing just a half mile stretch of creek, so why would you spend hours if not days trying to track down all owners and renters along a creek to ask permission to use public land? It is absolutely not inexcusable to not make a phone call or knock on a door.... For some places I fish it would take me all day to try and track owners and renters down to get "permission" to fish through their quarter sections. I love how you criminalize fly fisherman for "trespassing". We don't need to ask for permission to cross their property via the creek below the high water mark, plain and simple, it's not abusing a loophole whatsoever. 90% of the places most of us fish I think we could agree that there are never any issues with landowners. There are just exceptions that don't want anyone fishing, hunting, etc. Most weren't made that way and you're right is people legitimately trespassing or having a lack of courtesy that makes them how they are and ruins it for the rest of us, but there are still the crusty guys who've just always never wanted anyone out there. It is what it is. It has nothing to do with respect. High water mark is high water mark, with very very few exceptions PRIVATE LANDOWNERS DO NOT OWN THE CREEK/RIVER/STREAM: THE WATER, THE FISH, THE BOTTOM - THEY OWN NONE OF IT.

The thread was started to get some information and learn how to deal with it. I will not be intimiated by bully ranchers. It's a mutual respect thing - I don't go on their property, they don't have an issue. If you catch me on your pasture above the high water mark without permission, sure, that's a different story, but not the one we're discussing. Don't assume we're all idiots and ignorant city folks because like you there's several of us have an agriculturual background...

[jayanderson]

2 hours ago, northfork said:

Where did you read that none of us have permission to access creeks via private land? I know there is at least three of us in this thread that do....  And I do get your point - I have permission on a handful of places I access creeks to fish, and I hunt predominately private land myself too, but I guess we're all idiots....

Are you new to fly fishing? I think most of us on these brown trout creeks aren't fishing just a half mile stretch of creek, so why would you spend hours if not days trying to track down all owners and renters along a creek to ask permission to use public land? It is absolutely not inexcusable to not make a phone call or knock on a door.... For some places I fish it would take me all day to try and track owners and renters down to get "permission" to fish through their quarter sections. I love how you criminalize fly fisherman for "trespassing". We don't need to ask for permission to cross their property via the creek below the high water mark, plain and simple, it's not abusing a loophole whatsoever. 90% of the places most of us fish I think we could agree that there are never any issues with landowners. There are just exceptions that don't want anyone fishing, hunting, etc. Most weren't made that way and you're right is people legitimately trespassing or having a lack of courtesy that makes them how they are and ruins it for the rest of us, but there are still the crusty guys who've just always never wanted anyone out there. It is what it is. It has nothing to do with respect. High water mark is high water mark, with very very few exceptions PRIVATE LANDOWNERS DO NOT OWN THE CREEK/RIVER/STREAM: THE WATER, THE FISH, THE BOTTOM - THEY OWN NONE OF IT.

The thread was started to get some information and learn how to deal with it. I will not be intimiated by bully ranchers. It's a mutual respect thing - I don't go on their property, they don't have an issue. If you catch me on your pasture above the high water mark without permission, sure, that's a different story, but not the one we're discussing. Don't assume we're all idiots and ignorant city folks because like you there's several of us have an agriculturual background...

Sorry Northfork, my post took a shot people posting on this thread and I really should have stated what was my personal experience with steam access and trespass. I've had heated conversation with a couple of farmers while using road allowance to access crown lands for elk hunting, I understand there are those out there that just don't want you/me/us on their property no matter what the case may be. If what Bcubed stated is correct and it's generally interpreted as the 1-2 year high-water mark, basically where "the grass meets the mud", you've got to stay in the water which makes makes moving through some of these streams very difficult and dealing with brown trout damn near impossible. As to the question "Are you new to fly fishing?" I've covered enough water to know that when conditions are right I need a lot less than a half a mile stretch to enjoy myself.

[bcubed]

I think it's fair to say, regardless of the Public Lands Act, being a dick to a landowner is just asking for an unpleasant day for both of you for virtually no benefit, and will remove access across private land for other activities further. Sure you may be allowed to be on the river, but you might have just burnt a bridge for someone else who has been using the same land for hunting.

I routinely fish on public lands next to private, and make sure to go out of my way to be kind and respectful when i run into a landowner. They may not have a right to kick you out of the 'public' section, but I'd rather have a good relationship with those that i run into, such that if i ever need anything they're more receptive (if you break your arm 12 km up the river, i'd much prefer to cut across land and not get chased off because you've been an ***hole to them in the past). Don't jump fences, dont open gates, be respectful, clean up some garbage be kind, keep your dog under control (and likely on leash) and 99% of your interactions will be positive. If you're going around looking for issues, you should probably take up a less quiet sport..

FYI, last time i asked for access from a landowner, not only did they provide me access, they gave me a key to the gate that allowed me to shave off 3 km of hiking by driving. Landowners aren't inherently enemies..

[northfork]

1 hour ago, jayanderson said:

Sorry Northfork, my post took a shot people posting on this thread and I really should have stated what was my personal experience with steam access and trespass. I've had heated conversation with a couple of farmers while using road allowance to access crown lands for elk hunting, I understand there are those out there that just don't want you/me/us on their property no matter what the case may be. If what Bcubed stated is correct and it's generally interpreted as the 1-2 year high-water mark, basically where "the grass meets the mud", you've got to stay in the water which makes makes moving through some of these streams very difficult and dealing with brown trout damn near impossible. As to the question "Are you new to fly fishing?" I've covered enough water to know that when conditions are right I need a lot less than a half a mile stretch to enjoy myself.

I agree with you about the hunting and road allowances, too. That's almost a whole other topic... And I agree 100% it makes brown trout fishing much more difficult when you have to walk through the creek,  in a perfect world I agree we could all get along and hey you know what if you have to go through a guys pasture for 40 yards to preserve a run, it would be great, it's just hard to stay on the right side of legal. And absolutely the right evenings you can have a hell of a night in a couple hundred yards of water. It's the days where you have to cover a whole heap of water to pick up a few fish. I think there's some good debate here and that's what it's about.

[northfork]

1 hour ago, bcubed said:

I think it's fair to say, regardless of the Public Lands Act, being a dick to a landowner is just asking for an unpleasant day for both of you for virtually no benefit, and will remove access across private land for other activities further. Sure you may be allowed to be on the river, but you might have just burnt a bridge for someone else who has been using the same land for hunting.

I routinely fish on public lands next to private, and make sure to go out of my way to be kind and respectful when i run into a landowner. They may not have a right to kick you out of the 'public' section, but I'd rather have a good relationship with those that i run into, such that if i ever need anything they're more receptive (if you break your arm 12 km up the river, i'd much prefer to cut across land and not get chased off because you've been an ***hole to them in the past). Don't jump fences, dont open gates, be respectful, clean up some garbage be kind, keep your dog under control (and likely on leash) and 99% of your interactions will be positive. If you're going around looking for issues, you should probably take up a less quiet sport..

FYI, last time i asked for access from a landowner, not only did they provide me access, they gave me a key to the gate that allowed me to shave off 3 km of hiking by driving. Landowners aren't inherently enemies..

Couldn't agree with this more. It never hurts to ask and be respectful, I'm not on the side of screw the landowners I do what I want - just to clarify.

I can count on one hand how many dicks I've had run-ins with, but you don't forget them. I kinda like jayhad's idea of posting locations, it would be funny as hell but sabotaging.

[TightLinesJ]

On 6/30/2020 at 8:42 PM, jayanderson said:

 People are spending thousands on gear/fuel and won't spend the money for a few maps and couldn't be troubled by a simple human interaction

You also need to understand that simple human interaction isn’t always simple for some people. A lot of fisherman are introverts, including myself, and go fishing to take a break from people. I’m like Jayhad and avoid all human interactions while i’m out. No fisherman needs unnecessary harrasment/yelling while out recreating in a lawful manner.

There is no excuse for trespassing or failing to contact a grazing lease holder for access. However, some of these landowners/lease holders don’t help the situation either. I’ve been chewed out just for phoning a lease holder and requesting access.

I grew up in rural alberta and understand the conflict, however some of these landowners/leaseholders need to get their facts straight before trying to bully people off the water.

 

[Smitty]

Well, here's a side issue I am wondering about.

it seems like some landowners are ok with "mild" trespassing. I am talking about where the fence is clearly set back from the bank to allow a walking trail that parallels the creek (and I assume to keep cattle out as well).

So what's the deal with this? How do you guys treat this situation? Because there is no doubt - like this is 100% - that using this trail is indeed trespassing. I could never argue that these trails are below the high water mark; I'd look like an idiot.

So...are we allowed to use these trails? As stated, wading a brown trout creek is not always possible. Is it a safe assumption - and for me, it is an assumption - that if there is a clear access from a bridge, and then a trail starts along the creek above the high water mark - I am good to go?

 

[rudedawg]

1 hour ago, Smitty said:

where the fence is clearly set back from the bank to allow a walking trail that parallels the creek

I googled Alberta Petty Trespass Act and got to an article summarizing recent changes to the legislation. (https://auma.ca/news/casual-legal-alberta-strengthens-trespass-legislation). Changes in Feb 2020 include increases to fines and clarifying when a landlord is presumed to prohibit access - i.e. doesn't have to post the land as "No Trespassing".

"The amendments to the Petty Trespass Act also clarify when notice is no longer required to be provided to a trespasser. The list of areas where notice is now essentially presumed, as provided for in the Petty Trespass Act, includes lawns, gardens, land used for the production of crops or raising of animals, lands surrounded by a fence or natural barrier and lands that are enclosed in a manner indicating the owner’s or occupiers’ intention to keep individuals or animals off the land."

So it would seem that where a fence has been set back from the bank, to keep livestock in the field and out of the creek, there is no presumption that the landowner is intending to prohibit access. I'm thinking about Dog Pound upstream of Rge Rd 43 (although I haven't fished that water for several years, so it might have changed since then). Likewise, where a fence is not being actively maintained, is in a condition that would allow livestock to step over the sagging wires and has been like that for a while (I'd say a year at least), there is no presumption of an intent to prohibit access. But all this means nothing if the landowner has posted the land: a sign leaves no room for presumption, it is an express statement of intent, even if the fence hasn't been maintained. Ditto, if a landowner tells you to get/stay off their land, it doesn't matter whether they have posted the land or maintained the fencing. The lack of signage or fencing might give you an excuse for having inadvertently trespassed, but once you are informed of the landlords intent that excuse no longer holds water ... pun intended.

 

 

[northfork]

On 7/3/2020 at 3:36 PM, Smitty said:

Well, here's a side issue I am wondering about.

it seems like some landowners are ok with "mild" trespassing. I am talking about where the fence is clearly set back from the bank to allow a walking trail that parallels the creek (and I assume to keep cattle out as well).

So what's the deal with this? How do you guys treat this situation? Because there is no doubt - like this is 100% - that using this trail is indeed trespassing. I could never argue that these trails are below the high water mark; I'd look like an idiot.

So...are we allowed to use these trails? As stated, wading a brown trout creek is not always possible. Is it a safe assumption - and for me, it is an assumption - that if there is a clear access from a bridge, and then a trail starts along the creek above the high water mark - I am good to go?

 

Two reasons....

One, cows & fish likely got to them, and paid to relocate the fence to protect the bank from further erosion from cattle or,

They set the fence back on an eroding bank so they don't have to replace it again in the next 20 years.

Otherwise, if neither of these are the case, and as stated above not posted, I take that as a "you're good to walk outside my fence"