Hello,
I’m looking for some opinions (or better yet, facts) on a recent troubling issue during a kayaking day trip. To make a long story short, in NJ, our group put in at a local favorite fishing site in an attempt to paddle west to the Delaware Bay via the Deep Water Canal. About 3/4 of the way there, as we were passing a DuPont complex, a security guard informed us that we were trespassing on private property (in our boats, in the water). He claimed that DuPont owned the entire area - both sides of the water and the waterway itself was private. Rather than start an incident, we decided to turn around and research the issue.
Does anyone have any experience with sections of public waterways being designated as “private”? Can a private company take ownership of water that it surrounds? Any insight would be great - thanks!
miss r
Yeah, I’ve run into some of that on the Mississippi River. Some of the big riverside complexes will take over the mouth of a creek or slough to use as a kind of harbor, and they sometimes have it blocked off with “no trespassing” signs up - meaning you can’t pass from the upper parts of the creek to the Miss R. However, these are never important creeks and certainly not rivers - wherever they have operations at the mouth of rivers, I know for a fact that they aren’t allowed to close it off or block passage.
The duPonts (more so the heirs of the founder as individuals, but also the company itself) are notorious for fighting against unauthorized public access to their extensive waterfront land holdings in that area. My mother’s family lived in Maryland and most of them worked on the water in the vicinity (this is like 30-50 years ago), and I remember hearing stories about the duPonts buying up waterfront property that was sometimes used by the public and then closing it off - places like shallow bays where people used to wade for crabs and isolated beaches where fishermen would stop for emergency repairs, etc. Usually the duPonts had the law on their side, as the public use was in the nature of “squatting”, i.e., activities they never got permission to do but just did because the owner was too far away to enforce his rights. So the duPonts usually prevailed in these fights, and all the common watermen hated them for it. But still, they were pretty arrogant and sometimes tried to go further than the law allowed.
Anyhow, in regard to your specific issue, if I had to guess I’d say the guard was probably right (especialy if we’re talking about the company rather than family members), but it should be pretty easy for you to find out. Just go to the county land ownership records where the canal is located with your best maps of the area, and show them where the guard forced you to turn around. They should be able to look up the ownership records, and refer you to the appropriate laws regarding public access.
depends on the state
Depends on the state how legal landowner rights apply. Here in Illinois if the landowner owns both sides of a waterway, he then also owns the waterway at least that bordering on his property. Our neighboring state Wisconsin doesn’t allow that, the waterways being public.
Has nothing to do with any family or corporation’s wants or desires.
Bill H.
Big can-o-worms
Many years ago as a land agent, the question of water access rights arose during the transfer of a large tract of land with several rivers and creeks. I did research on this question as per my state and in later years had occasion to see many legal opinions about this subject in general. It is a very important issue for paddlers and has been discussed at length in every paddling forum that has existed over the years (yes, I read them all). Property law texts have been written about the subject. Generally there are issues concerning the letter of the law as well as the practical applications by law enforcement. IMHO, the question of access rights on water varies from county to county or even more finite, from sheriff to sheriff. In many locales, but not all, it goes back to whether the body of water in question is in fact navigable and if so what does navigable mean? Is there actual legislation in that locale or does custom prevail? If legislation exists, was the water body navigable at the time and is it now? Ad infinitum, you can see how complicated it can get. Even courts have a hard time with this. Is a local law enforcement agent equipped to handle this? Never! There have been many court cases all over the U.S. and most reach different conclusions, sometimes based on specific venue characteristics, sometimes on broad sweeping legal theory. Bottom line, it’s almost impossible to know unless that venue has been the subject of a court case and a definitive ruling has come down (sometimes even that doesn’t happen). I’ve been on several venues where we were pretty sure the right to paddle existed but knew the local sheriff would favor the landowner and take action, so we avoided the area. When the confrontation comes ask yourself this, are you prepared to be arrested, are you prepared to fight a costly and often very lengthy court battle, are you knowledgeable enough about the law to know if you have a good case? Consider the local law enforcement agent called to the scene. On the water are a few paddlers. On shore is a major economic interest such as a shipping, timber, mining, hydroelectric, or water supply company, or maybe a country club, church retreat, or well known landowner. Who are you going to favor? This is a real can of worms for paddlers but becoming an increasingly critical question as our population expands. We need to hang together as a political group and support organizations addressing these issues.
Pagayeur
One example
Couldn’t find Delaware, but here’s a nice FAQ from PA:
http://www.fish.state.pa.us/water/public/faq_public_waters.htm
Tell them to call the cops
and paddle through.
Print and laminate this: http://www.americanwhitewater.org/content/Wiki/do-op/id/access:md
so if they have the gonads to actually call the cops, you have something illustrating the legality of your presence, not just the cops gut instinct.
Pagayuer is absolutely correct that where practical concerns are the issue, it can vary by Sheriff to Sheriff. LEO are not lawyers, and in the States we have a strong 'own the land, what's mine is mine' mentality that often wins out in the mind of a LEO not educated specifically on the subject. Resources like the ones AMerican Whitewater supply are great tools to have on hand to combat that prevalent initial instinct.
I can be a mean SOB
I woulda told the guard that I was an ex-Olympic wrestler. . .what’s he gonna do, sic John on me?
http://www.cnn.com/US/9702/25/dupont.verdict/reax.html
Deepwater Canal
I did quite a bit of searching on this, have friends in NJ and have spent a fair amount of time there.
I’ve found several links about fishing in that canal, if they allow fishing they can’t stop you from kayaking.
I suspect you found a security guard trying to be a cop, common problem.
I think I’d ask places like the Jersey Paddler (dealer) and local paddling clubs as I suspect they’ll know if it’s legal or not.
Bill H.
navigable
Btw, if there is commercial shipping or barges on that canal, they can’t keep you off of it. Can’t allow some boat traffic and stop others. (other than military)
Bill H.
Doesn’t Dupont Own Deleware?
I’d be willing to bet they have some special privledge.
In Southport, NC I found similar circumstances, only there was a nuclear plant ashore. Most parts you just couldn’t go ashore, a few you had to stay off the water too. Plenty of water around so I obeyed, didn’t want to glow.
Interesting
In general, navigable waters are held by the state in trust for the public and cannot be private property. This has been repeatedly supported by many court cases.
Some states wrongly still allow (or tolerate) private ownership because the laws haven’t been challenged in a case.
A canal is defacto navigable.
However, a canal is also man-made, not a natural river.
So it’s possible that duPont dug the ditch you were paddling in.
The law could get murky in a case where a navigable waterway was actually created by a private entity.
In areas deemed to be targets for terror
, the government is able to do some interesting things. Military sites, power generation, water intakes, and other “strategic” locations can be protected from use. In the Great Lakes, the public is allowed up to the high water mark, and in streams, you are generally allowed access to the river bottom in streams where the water does not originate on that property. Private “spring creeks” have weird rules that apply to them.
As for the duPonts, I know Governor duPont and his family and have found them to be really fine people. I cannot think of a single memory that would validate what is being said about the family in this post. In fact, I believe the duPonts would be strong defenders of the publics right to enjoy public spaces, as well as the rights of individuals. I suspect the industrial site either has special protections, or a rent a cop with a complex. I would have have told him to call the cops and paddled on. Also, why is there a public access site on a non-navigable waterway? Bill
which article to believe?
My research and experience leads to conclusions almost spot on with the article Brian sent in from the Pennsylvania Fish and Game Commission. I find the Adventuresports article to be extremely overgeneralized and misleading. Sorry, I wish it were otherwise but I would regard the Adventuresports article with great skepticism and follow it at your own risk. For instance, they declare that a court does not have to declare a river nav. or not. While that may be true, but landowners can physically control a waterbody until the aggrieved parties try to lagally enjoin them from ceasing that activity and at that point a court will decide navigability. So, for all practical purposes the couts do make that call. I could go on, but you get the picture. You can be blocked until a judge tells the landowners otherwise. Period. This may not be just and you may technically correct in your assertion of rights, but you still won’t be paddling there until a court intervenes.
Pagayeur
Smile, wave, and paddle right on through
I don’t stop for anyone except local constabulary. Others are often pretending to authority they don’t have. You must realize how limited your “right” is to stop someone cutting through your own front yard. All you can do is call the constable.
clauderbaugh, where were you …
...... are you meaning "Salem Canal" near the community of DeepWater ??
If Salem Canal was the place ... thank the sentry , doesn't look passable to the Del. River .
see links :
http://newjersey.hometownlocator.com/features/cultural,class,canal.cfm
http://deepwaternj.wordpress.com/
http://www.em.doe.gov/bemr/BEMRSites/duco.aspx
check out the "Birdseye" view on this one :
http://www.microsoft.com/maps/isdk/ajax
Access to private waterways denied:
Related to the OP, but not identical.
http://rivers-end.org/forums/viewtopic.php?f=2&t=668
These folks already have the river cops on call.
all they need
is someone to take them to court over the matter.
These days not a lot of ppl with the spare time and money to challenge such foolishness.
IL laws favor landowners on waterways.
Recreational use is a very low priority.
Taking them to court may or may not assure access. It would bring attention to the matter.
Is it tidal?
In NJ, the public has the right to use all tidal waters, up to the mean high tide line:
http://www.nj.gov/dep/cmp/access/
It does not specifically mention access to man-made canals, however.