A Usenet persona calling itself BCITORGB wrote:

Melissa:
===============
I think most people, myself included, hold more nuanced views of
"private, personal property", especially when it comes to "owning" a
piece of the earth itself; which is a concept worthy of nuanced
consideration and discussion, but Scott's views on this are anything
but nuanced.
=================

Is the concept of "public property up to the 'high water mark'", which
is true in BC, also prevalent in the USA?

As applied to "navigable waters of the United States," yes, the public has
access rights up to the "ordinary high water mark." But the catch is that
for the access rights to apply AT ALL, the waterway must be, in fact AND in
law, "navigable." The test for bed-title navigability is not a state one, it
is a federal one, and it has NEVER been ratified by the Supreme Court as
being the "pleasure boat test" that kayakers like to tout as the be-all and
end-all of navigability tests. It's rather more complex than that.


--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM

© 2005 Scott Weiser

A Usenet persona calling itself Oci-One Kanubi wrote:

BCITORGB wrote:
Melissa:
===============
I think most people, myself included, hold more nuanced views of
"private, personal property", especially when it comes to "owning" a
piece of the earth itself; which is a concept worthy of nuanced
consideration and discussion, but Scott's views on this are anything
but nuanced.
=================

Is the concept of "public property up to the 'high water mark'",
which
is true in BC, also prevalent in the USA?


In most States, yes. It's actually described as "the mean high-water
mark."

Or "ordinary high water mark." But first, the waterway must be navigable in
law, and the test is not whether you can float a kayak on it.

--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM

© 2005 Scott Weiser

A Usenet persona calling itself Melissa wrote:

-----BEGIN PGP SIGNED MESSAGE-----
Hash: RIPEMD160

Hi Wilf,

On 11 Mar 2005 09:01:10 -0800, you wrote:

Is the concept of "public property up to the 'high water mark'",
which is true in BC, also prevalent in the USA?

I'm not a legal expert in this area, so please take my comments as
only the casual observations of an oceanfront dweller who has some of
her own ideas, and also encounters reports of legal disputes over
ownership versus public access rights now and again.

Yes, the high water mark seems to be a *general* guideline in some
states, but it seems to be a state issue rather than a federal issue
in most cases, and so different states - and their courts - may draw
the lines differently than others.

Except for "National Park" and other such federally "owned/controlled"
land/water rights (military properties, wildlife preserves, etc.), it
seems to be mostly a state issue, governed by state courts.
Oceanfront private property owners will, often enough, challenge
certain boundary and access issues in the state courts (most often in
an attempt to limit public access/usage to as much of the "beach" in
front of their property as possible).

Incorrect. The determination of what is a navigable waterway is a federal
one, and once a waterway has been adjudicated as navigable under the
requisite federal tests, the bed of that waterway belongs to the state, held
in trust for the use and enjoyment of the people, and the state may not
alienate that title if it thereby prevents navigation by the public.

Some states did, however, reserve specific rights in navigable waters under
their constitutions that provide broader navigability right to the public.
However, a state may not *diminish* the federally-protected right of
navigation on navigable waters.


Again, while it does seem that most states do use the "high water
mark" as a general guideline, here in WA state, the line seems to be
drawn at the spot where "dune" and "beach" meet. If the "dune"
erodes, so does the "private property", regardless of the average
high water mark.

This is mostly correct. The doctrines of reliction and accretion determine
title to such lands, and they apply on navigable rivers (and indeed non
navigable streams for the purposes of who holds title to the upland) as well
as on the oceanfront.



Of course, in an area like where I live, even though the "open sand"
beach area can be very wide for long stretches, and the usual "high
water mark" does not, most of the year, reach all the way to the edge
of the "dune" area, winter storms can easily push waves all the way
up to/into the very edge of the dunes (area where vegetation, like
dune grasses and trees grow before giving way to open sandy beach);
so I suppose this may be considered the "high water mark".

The ordinary high water mark can be easily determined through a survey and a
review of tide tables. Extraordinary high water, such as storm surge, does
not move the line.


As I said, I'm no legal expert in any of this, and I currently only
rent a bit of oceanfront property rather than "own" it, so I haven't
paid quite as much attention to all the legal minutiae as I might
have had I "owned" this property. Even so, I still have my own
peculiar views on the "spiritual" aspects of land ownership in
general, and things like "beach/water access" specifically. River
access is also an issue *I* consider to be more "spiritual" than
legal; philosophically speaking anyway. These
"spiritual/philosophical" feelings of mine can push certain opinions
of mine in various directions, even though I appreciate the idea that
beach/water access should be "public". For instance, I have a
"spiritual/philosophical" problem with the idea of driving vehicles
on the beaches for anything other than emergency purposes, yet in my
state, much of the "wide open beach" area along certain stretches is
officially designated as part of the "state highway" system,
inefficient as that may be as any sort of a practical
"transportation" issue. As I see it, it's just a permission for
people to drive on the beaches, which is, in my view, blasphemous at
best.

With regards to river access, it seems that here, even if someone owns
property on both sides of a stretch of river, the water itself,
including up to the high water mark on the banks, is designated as
"public access". So, if a river runs through someone's "property",
the public still has the right to be on the water itself. I see this
as being perfectly reasonable, but Scott seems to have a somewhat
different opinion about this sort of public access issue.

This is simply not within the ambit of our law or our history. Even back in
pre-US England, from which we derived our laws of river access, the law has
always distinguished between navigable and non-navigable waterways, and the
public rights to use a waterway depend on navigability.

It is simply a legal fact that in Colorado, there is not legal right to
float down a non-navigable river or stream. And so far, there is only one
federally-adjudicated navigable waterway in Colorado: The arm of the Navajo
Reservoir that extends into Colorado from New Mexico.


If I keep googling, I'm sure I'll find endless examples in the various
states, but here's something that popped up after just a quick little
google (this one is specifically in North Carolina):

http://www.nccoastalmanagement.net/Facts/publicuse.htm

I've seen even more contentious court battles played out in southern
California (specifically in the L.A. area), where many very wealthy
people own "beachfront" properties, and they will often be in court
trying to restrict access to as much of the beach as possible in
front of their homes.

Here's something I just found with regards to California beach access
rights:

http://www.stoel.com/resources/artic...e/real_01.shtm

Public/private access to various bits of this earth is a never ending
discussion, especially if we're willing to discuss these issues in
spiritual/philosophical terms and not just "legal" terms.

Sorry, but whatever you may feel spiritually, the rights of property owners
to exclude others is strictly a legal issue.


--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM

© 2005 Scott Weiser

Scott Weiser wrote:

A Usenet persona calling itself Melissa wrote:

Hi Wilf,

On 11 Mar 2005 09:01:10 -0800, you wrote:

Is the concept of "public property up to the 'high water mark'",
which is true in BC, also prevalent in the USA?

I'm not a legal expert in this area, so please take my comments as
only the casual observations of an oceanfront dweller who has some of
her own ideas, and also encounters reports of legal disputes over
ownership versus public access rights now and again.

Yes, the high water mark seems to be a *general* guideline in some
states, but it seems to be a state issue rather than a federal issue
in most cases, and so different states - and their courts - may draw
the lines differently than others.

Except for "National Park" and other such federally "owned/controlled"
land/water rights (military properties, wildlife preserves, etc.), it
seems to be mostly a state issue, governed by state courts.
Oceanfront private property owners will, often enough, challenge
certain boundary and access issues in the state courts (most often in
an attempt to limit public access/usage to as much of the "beach" in
front of their property as possible).

Incorrect. The determination of what is a navigable waterway is a federal
one, and once a waterway has been adjudicated as navigable under the
requisite federal tests, the bed of that waterway belongs to the state, held
in trust for the use and enjoyment of the people, and the state may not
alienate that title if it thereby prevents navigation by the public.

Some states did, however, reserve specific rights in navigable waters under
their constitutions that provide broader navigability right to the public.
However, a state may not *diminish* the federally-protected right of
navigation on navigable waters.


Virginia is a possible exception to your above statements; see:
http://www.americanwhitewater.org/ac...reports/VA.htm




--
"This president has destroyed the country, the economy,
the relationship with the rest of the world.
He's a monster in the White House. He should resign."

- Hunter S. Thompson, speaking to an antiwar audience in 2003.

"Frederick Burroughs" wrote in message
...
Scott Weiser wrote:

A Usenet persona calling itself Melissa wrote:

Hi Wilf,

On 11 Mar 2005 09:01:10 -0800, you wrote:

Is the concept of "public property up to the 'high water mark'",
which is true in BC, also prevalent in the USA?

I'm not a legal expert in this area, so please take my comments as
only the casual observations of an oceanfront dweller who has some of
her own ideas, and also encounters reports of legal disputes over
ownership versus public access rights now and again.

Yes, the high water mark seems to be a *general* guideline in some
states, but it seems to be a state issue rather than a federal issue
in most cases, and so different states - and their courts - may draw
the lines differently than others.

Except for "National Park" and other such federally "owned/controlled"
land/water rights (military properties, wildlife preserves, etc.), it
seems to be mostly a state issue, governed by state courts.
Oceanfront private property owners will, often enough, challenge
certain boundary and access issues in the state courts (most often in
an attempt to limit public access/usage to as much of the "beach" in
front of their property as possible).

Incorrect. The determination of what is a navigable waterway is a federal
one, and once a waterway has been adjudicated as navigable under the
requisite federal tests, the bed of that waterway belongs to the state,
held
in trust for the use and enjoyment of the people, and the state may not
alienate that title if it thereby prevents navigation by the public.

Some states did, however, reserve specific rights in navigable waters
under
their constitutions that provide broader navigability right to the
public.
However, a state may not *diminish* the federally-protected right of
navigation on navigable waters.


Virginia is a possible exception to your above statements; see:
http://www.americanwhitewater.org/ac...reports/VA.htm

LOL. All you have to do is topple a tree across the creek and it's yours!

On Fri, 11 Mar 2005 13:40:19 -0700, Scott Weiser wrote:

Incorrect. The determination of what is a navigable waterway is a federal
one,

Not in Georgia:
http://www.americanwhitewater.org/ac...reports/GA.htm
--
Charlie...
http://www.chocphoto.com/ - photo galleries
http://www.chocphoto.com/roff

A Usenet persona calling itself BCITORGB wrote:

-Richard, His Kanubic Travesty indicates:
============
In most States, yes. It's actually described as "the mean high-water
mark."
===============

BC Land Act
R.S.B.C. 1979, c. 214 (as amended)

...In British Columbia, all foreshore is vested in the Crown in right
of the Province... The foreshore is the intertidal area defined by the
high water mark which delineates the natural boundary and that of the
low water mark which delineates the seabed....

Remember, this only applies to the seacoast. Rivers may be different.
--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM

© 2005 Scott Weiser

A Usenet persona calling itself BCITORGB wrote:



On a website providing interpretation of the BC Land Act:
"What is Foreshore?

Foreshore is the land between the high and low watermarks of streams,
rivers, lakes, and the ocean."

So, foreshore (public access) applies not only to intertidal zones, but
also, as you can see, to lakes and rivers.

Quite right, IMHO.

I'm not sure if this is precisely true. It would depend on whether the
specific regulation applies to "navigable waters" or all waters. I suspect
that Canada has much the same structure as the US, since English common law
is the genesis for both. Thus, there is probably some distinction drawn
between navigable and non navigable.

The ocean is, of course, always navigable. "Under the influence of the
tides" is the metric from English common law for public navigability.

--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM

© 2005 Scott Weiser

A Usenet persona calling itself Tinkerntom wrote:



Scott, I must not have made myself clear, and riverman missed my point.
I would like to meet the real Scott Weiser. Will the real Scott Weiser
please stand up?

That would be me.

I have trouble believing all the bad things they say
about you as being true.

They aren't.

I have not had opportunity to go back and read
all the archives, and would really appreciate the opportunity to form
my own opinion. So is it possible to meet? TnT

I imagine that is possible, though I'm a bit busy with business right now.
We could meet for lunch one of these days if you like.

Give me a call and leave your number, I'm in the book.

--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM

© 2005 Scott Weiser

A Usenet persona calling itself BCITORGB wrote:

Tink says:
=============
Scott, I must not have made myself clear, and riverman missed my point.
I would like to meet the real Scott Weiser. Will the real Scott Weiser
please stand up? I have trouble believing all the bad things they say
about you as being true. I have not had opportunity to go back and read
all the archives, and would really appreciate the opportunity to form
my own opinion. So is it possible to meet?
============

Tink, are going to be the CO president of the Weiser fan club? GRIN

He's a gun-toting, Hummer-driving, ex-Kampus Kop. Are you guys so short
of role models down there? Or maybe I'm just jealous that you don't
want to meet me. GRIN

I think he's just a human being who is wise enough not to form opinions
about people he's never met based on what's written on the Usenet.

--
Regards,
Scott Weiser

"I love the Internet, I no longer have to depend on
friends, family and co-workers, I can annoy people WORLDWIDE!" TM

© 2005 Scott Weiser