Understanding Pennsylvania’s stream trespass laws is important – Part 1

I wish I had a dollar for every time a person has made the comment to me over the years:

“Well, as long as I am wading down the middle of the stream, I am not trespassing.”

Maybe that is true in some states, but it certainly isn’t true in Pennsylvania.

If you had any doubts about this, NOW HEAR THIS! In Pennsylvania, the owner of the land owns the stream — including the stream bottom. A fisherman wading or paddling down the middle of the stream is trespassing. The only exception to this is on “navigable waterways.” The vast majority of streams are not “navigable.”

By the way, “navigable” doesn’t mean “If I can float a kayak on it, then it is navigable.” In Pennsylvania, “navigable” is a legal term. Streams and rivers that are navigable have been declared so by law. For example, the Susquehanna, Juniata, Delaware and Allegheny rivers are navigable. The Little Juniata River, from its mouth to Bellwood, is navigable, as is much of the Lehigh River. These last two rivers were both the subject of court cases during the last 20 years.

What is the streamside limit of navigable waterways? The law specifies, “to the normal high-water mark.” Agreed, this is pretty vague and open for interpretation.

It is unfortunate for anglers and anyone who loves the environment, but in Pennsylvania, for the most part, the landowner also owns the water. This became obvious a few years ago when riparian landowners built pumping stations and sold stream water to Marcellus shale drillers.

If you are now thinking that Pennsylvania must have antiquated water laws, in my opinion, you would be correct, but let’s get back to trespassing.

There are other commonly held, albeit incorrect, beliefs about trespass laws:

“The signs have to be signed by the landowner to be legal.” Again, this is just not true. Signs do not need to be signed, nor do they need to follow any specific format. “Posted,” “No Trespassing,” “Keep Out,” or even a hand-written sign is enough for a Pennsylvania landowner to post his or her property against trespass. Every state has slightly differing trespass laws. As an example, in North Carolina, a landowner only needs to mark border trees with purple paint and that means (in North Carolina) “No Trespassing.”

“If the signs don’t specifically say, “No Fishing,” then it is okay to fish.” Boy, that is wishful-angler thinking. What part of no trespassing allows fishing? I have never seen a poster stating, “No bird-watching,” or “No hiking,” but I’m pretty certain that they are included under no trespassing — fishing is, too.

“The signs have to be posted every 100 feet to be legal.” Again, this is just not true. The law does not specify a certain minimum distance between signs, nor a specific height from the ground or sign dimensions. The law just states that the signs should be “reasonably likely to come to the attention of intruders.” I had a judge tell me that even one sign could be enough.

Last summer, I found myself in court over an alleged trespassing incident. I’ll share that story in Part 2.

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