Run in with an anti-fisherman today

[Rod Caster]

We are visiting Peterborough this weekend to see my GF's friends and while she was getting her b-day peticure, I drove out to some back roads for some random exploring. One of the back roads made a sharp turn around this little pond that had both inflow and outflow, I thought maybe it contained some specks so I parked on the road and pulled out my new, never casted, reel.

 

I must make it clear that the road was no more than 1 meter from the water and the road was NOT a private road.

 

As I make my first cast, mr. big shot Lincoln Navigator pulls up and says "you know you are on private property right?" I look down at my feet, one on the road, one on some grass and say, not knowing if he is joking "is that right?" He says "yes, your car is not, but you are". I rebutted with "this is MTO property, they have an easement, you do not own the road, and the shoulder is part of the road". This back and forth banter, of "yes it is, not it's not" went on for some time until I asked him who placed the road gravel and who fixes the culverts... obviously the MTO or township. I told him I wasn't here for trouble, just to cast off of the public road. If I wanted to trespass I would have walked past his "no tespassing" signs in the forest. I didn't cast another as not to egg him on, but I made my point very clear.

 

Now riddle me this... could he own the water in the pond??? Can I not cast into this water? even if there is a "public access" point? Could I legally land a float plane on a waterbody like this (if there was enough room)?

 

Anyway, he was speechless by the time I was done with him. Fisherman 1, Big Shot 0.

Edited April 23, 2011 by Rod Caster

[timmeh]

My understanding is that in order to be a private pond where he owns the water it must be entirely contained within the property. So if the pond does have an outflow that flows through a culvert, and into a natural waterway somewhere than he cannot own the water. So you can cast from the road like you did.

 

But I'm honestly not 100% sure on this, so maybe someone will correct me.

[archie_james_c]

Had this problem yesterday with a bunch of drunk teenagers who's parents owned the property. We were running a river and stopping, anchoring, and wading in the water to fish corners that looked promising. Needless to say when the kids tried saying "This is my dads property what the hell are you doing on it?" We both just took two steps into the water with our waders on and giggled at each other.

 

Its a good thing my buddy knows the whole gang of them and is more than welcomed to fish any stretch of the river we were on, he should have dragged them by their ear up to their parents house and turned them over to the parents for an arse whoopin'

[lookinforwalleye]

What was your GF getting done to her pet?

[Rod Caster]

What was your GF getting done to her pet?

 

 

Peticure? petticure? pedicure...there it is! haha

[Dutch]

Where exactly were you? From the area, so maybe I can help and let you kow if it was private property.

[Cookslav]

He "could" own the entire land around the pond right up to the easment I suppose?

Its possible....

 

I used to fish a creek/pond right below and beside the base of a bridge/culvert....got told I was trespassing by a land owner.

After some freindly attempts at explaining why I was not tresspassing the owner continued to scream at me so...

I Told the dude to go ahead and call the police as I was on the easment and not breaking the law.

I've been fishing that creek for YEARS.....the police have never come to charge me, and the old man never stops to give me crap any more either.

Guess I was right in my assumption about the easment LOL!

[cram]

Apparently landowners do own the land under the water (was new to me, but read this on other threads here last year). No idea how to find out if/how/who....but apparently it does happen sometimes.

[mike rousseau]

You can never ow a lake or pond... If you can land a float plane on it your allowed to fish it... They can only own the bottom if the lake or pond or canal is man made... This is for marinas that construct a cove... It stops freeloaders from dropping anchor for free...

 

I've been threw this for the past 15 years with a local marina...

 

With man made canals and coves... If they own all the surrounding land they may put in a gate or bridge to stop boat traffic because it would be crossing their own property...

[Sinker]

You can argue all day long between yourselves, but if it was me, I would have walked up to the guys door, gave it a knock, started a conversation with him, and politely asked if I could fish "his" pond. Most times they will say go for it, especially if your just letting them go anyways.

 

If you want to come out and be an and be ignorant about it, of course the guy is going to try and get you out of there. Whether he owns the property or not, he's kind of "adopted" it, and if you just asked him, I bet there would be no issue.

 

Just sayin.......

 

S.

[mike rousseau]

Not in my case... The marina I like to fish... I usually go during the week when there isn't much boat traffic and I avoid the docks... Still I get harrased

[Rod Caster]

You can argue all day long between yourselves, but if it was me, I would have walked up to the guys door, gave it a knock, started a conversation with him, and politely asked if I could fish "his" pond. Most times they will say go for it, especially if your just letting them go anyways.

 

If you want to come out and be an and be ignorant about it, of course the guy is going to try and get you out of there. Whether he owns the property or not, he's kind of "adopted" it, and if you just asked him, I bet there would be no issue.

 

Just sayin.......

 

S.

 

I was standing on the road...that's the point, it's not his property and it's not his place to tell me it's his property. Would you accept someone yelling at you on the sidewalk?

 

 

I have a private smelting creek which is the result of me doing what you suggested, I bring them a bag of cleaned smelts for their kindness, I have no disrespect to property owners when they actually own the property.

[aniceguy]

this should answer pretty much most of the questions

 

 

There are two pieces of legislation that are relevant to the question of access to fishing waters in the Province of Ontario. The first, and most important, is the Beds of Navigable Waters Act [R.S.O 1990 c. B.4]. The second is the Heritage Hunting and Fishing Act, 2002 [s.O. 2002, c. 10].

 

The right to hunt and fish

 

With the proclamation of the Heritage Hunting and Fishing Act, 2002, the Government of Ontario recognized that hunting and fishing have played important roles in shaping Ontario's social, cultural and economic heritage and that recreational hunters and anglers have made important contributions to the understanding, conservation, restoration and management of Ontario's fish and wildlife resources. The Act not only provides for the establishment of the Ontario Fish and Wildlife Heritage Commission, but specifically creates, for the fist time, a statutory right to hunt and fish in the Province. Specifically, subsection 1(1) of the Act provides that:

 

“A person has a right to hunt and fish in accordance with the law.”

 

The right to hunt and fish is not an unfettered right. You have to exercise that right, “in accordance with the law”. What this means is that as long as you have a licence (if you are required to have one) and you respect::

 

a) the various regulations regarding seasonal closures, equipment restrictions, catch and possession limits, and;

private property rights,

you have a right to fish which is recognized and protected by law in this Province.

The regulations regarding licenses, seasonal closures, equipment restrictions, and catch and possession limits can be obtained in printed form from your local bait and tackle dealer or the Ministry of Natural Resources.

 

Water access

 

It is clear that you cannot trespass upon private property while exercising your right to hunt and fish. Private lakes and ponds (bodies of water without deeded public access) are off-limits unless you have permission from the landowner. The question becomes more complex when you consider other bodies of water that are accessible to the public. The Beds of Navigable Waters Act addresses the issue in section 1 of the act, specifically it provides that:

 

“Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee”

Section 1 of the Beds of Navigable Waters Act creates a statutory presumption that owners of land abutting navigable waters (or streams) do not have ownership of the lake-bed/stream-bed, unless the original Crown land grant specifically states that the lakebed/streambed is included as part of the property. There are some exceptions to this rule, specifically:

a) if the land was granted before 1911 (the year that the Act was first proclaimed) and a court determined before 1911 that the landowner also owned the rights to the stream bed, or;

the landowner establishes to the satisfaction of a court that a water power enterprise of some sort was established in the waterway before 1911, and the landowner had a reasonable belief that he or she had the right to use the streambed for such purpose, or;

c) the waterway is designated as one to which the Act does not apply (at this time there is only one such waterway, located in Merritt Township in the District of Sudbury).

Crown land grants which specifically include rights to the streambed are rare, and were/are usually made in relation to places where mills, power dams or hunting/fishing clubs were/are to be established. These places are usually pretty obvious and are usually posted. That being said, the best way to satisfy yourself that your exclusion from a waterway is legitimate is to head off to the Registry Office and look at the original Crown grant to see if such rights were specifically granted.

If the streambed was not specifically granted to the abutting landowner, the bed of the waterway is Crown Land and can be used by the public to exercise its right to hunt and fish.

 

The question of Navigability

 

The question of whether or not a particular waterway is “navigable” is more problematic. If a waterway is not, “a navigable body of water”, section 1 of the Beds of Navigable Waters Act does not apply and the landowner's rights would be considered to extend into the streambed. Not surprisingly, the issue of what “navigable” means (within the context of the Beds of Navigable Waters Act) has, from time to time, been the subject of litigation in this Province.

 

The first cases concerning the issue of navigability were primarily focused on the question of whether or not a waterway could be used for commercial purposes (i.e. shipping goods or floating logs). The first test of navigability therefore included the consideration of whether or not the waterway was a commercially viable means of transportation. That criteria has recently been deemed not to be conclusive of the issue, but rather evidence that a waterway is navigable (but it is not an essential condition to prove navigability).

 

Essentially, the question of navigability will be looked at by the court from two perspectives - historic use and present use. If any of the following are found by a court considering the issue of navigability of a particular waterway to be fact, the waterway will be considered to be navigable:

 

a) it is used for commercial shipping;

it is used by the public as an “aqueaous highway” (i.e. it must have real or practical value to the public as a means of transport from one point of public access to another). The vessels being used do not have to be large - if the waterway is used by small watercraft (i.e. canoes, inflatable rafts, kayaks, paddle boats), or used by the public for transportation in the winter (i.e. snowmobiles, cross-country skies, snowshoes), it will be considered to be navigable;

c) it is capable of being used by the public as an “aqueaous highway”. In situations where no actual present use of the waterway can be established, the court will look at historic use of the waterway and expert information regarding the present characteristics of the waterway to determine if it can in fact be used as described above.

The issue has been explored further, and a court will now find that a waterway is navigable, even if:

a) it is only navigable during certain times of the year (i.e. spring run-off);

the waterway is interrupted by dams or other obstructions (natural or man-made) which impede navigation;

c) it is navigable in some parts, but not others (in such cases section 1 of the Beds of Navigable Waters Act applies only to those sections that are navigable);

d) if the river is navigated for purposes other than transportation (i.e. for fishing or other recreational pursuits)

The myth of the “highwater mark”

Many people believe that the public has a right to use land up to the highwater mark of a navigable waterway while traversing the course of the waterway. Except for a very brief period in time (between 1940 and 1951, when an earlier version of the Beds of Navigable Waters Act provided that the Crown owned the beds of navigable waterways to the highwater mark of the waterway) the law in Ontario has always been that the boundary between a waterway and the abutting land is the waterline. In other words, if you are out of the water, you could be on private property.

 

Generally, the public has no right to enter on to private property abutting a waterway unless consent of the landowner has been granted. You can be liable to penalties if the land is posted against trespassers (i.e a “No Trespassing Sign” or a red dot painted on objects along the boundary of the property).

 

The public's right to use a navigable waterway (and the bed of the waterway) does not include a right to enter upon private property to portage around a natural obstacle in the waterway, or a legally constructed obstacle in the waterway. Unless there is a recognized right (at law) to portage, you need permission to travel overland. What this means is that although you have a right to use a navigable waterway, your right may not be able to exercise that right in some circumstances. Without permission to use the abutting land as a portage, you run the risk of facing trespass charges.

 

Landowners beware !

 

Section 18(2) of the Fish and Game Act (Ontario) prohibits unauthorized persons from giving notice prohibiting activity on Crown land. If you own property abutting a navigable waterway and you do not allow people to use the waterway for fishing and/or hunting, you are contravening section 18(2) of the Fish and Game Act (Ontario) and may be liable to have a penalty imposed.

 

NOTE: This material is intended for informational purposes only and is not a legal opinion and therefore cannot be relied upon in the event that a reader faces civil, criminal or quasi-criminal liability arising from the use of, or entrance upon, private property abutting a waterway.

[Rod Caster]

thanks Aniceguy.

 

It all depends on what is written in his property title if he has a right to block the public from the waterway or not. So basically I'll never know... either way he can't stop me from standing on the road.

 

I'm better off staying up north near all that wonderful crown land!

 

 

[Sinker]

I'm just sayin, it never hurts to ask. It hasn't for me anyways. Was the road, actually a road? Or just a road allowance to his poroperty?

 

Regardless, a quick knock on the door would have solved the issue. (or made it worse )

 

S.

[Roy]

Chad, Most workin' folks have the weekend to fish...if they have kids, it gets to be even less because children need their parents around. I don't know if I'd even want to entertain an argument with someone during my free time. I'd most likely just go somewhere that I knew would be a safe place to go to relax and not get hassled. But that's just me. We probably have enough stress during our work week without it overflowing into our free time.

[vinnimon]

I had an older gent aproach me yesterday in a public fishing area, at the lot. Must have been a local, anyway he did say that "we were not allowed to fish there, and its not open season yet. It would be adviseable for everyone to leave".

Ya OK!!!

I turned around kindly to explain that this is the 4rth Sat of april and there are 5 saturdays this month.Today is opener, care to read the regs.

He in return replyied"its not right, we cant have this"

 

This particular area is protected by the province, and a certain assosciation. A public trail goes through most of the area, with all land owners allowing it(where the trail runs through their property).

 

Im thinking he purchased a little peice of heaven to retire at, and peed off yesterday with the extra traffic in the area.

 

Anyhoo, im glad to say that,all the areas I fished yesterday and today were free of shoreline garbage

[Rod Caster]

Chad, Most workin' folks have the weekend to fish...if they have kids, it gets to be even less because children need their parents around. I don't know if I'd even want to entertain an argument with someone during my free time. I'd most likely just go somewhere that I knew would be a safe place to go to relax and not get hassled. But that's just me. We probably have enough stress during our work week without it overflowing into our free time.

 

 

I have a high pressure job that often spills over into my weekends and as you mentioned I also prefer civility and peace to arguments and pointless fighting. I left the area within a few minutes and won't be returning to this guy's territory. I wasn't looking for trouble, but the other guy was so I defended myself accordingly. Anyway...I'm over it now and I'm just glad to be back up north where we have a little more freedom.

If only the Otonobee River was open for Carp, I would have avoided this situation in the first place.

[irishfield]

PM me the property location RC.. I have 2 cousins in the city of Peterborough engineering department.. well one now.. the older one retired as the planning director for same.

Edited April 25, 2011 by irishfield

[Guest eastpinner]

iv dealt with these private oweners so many times, no matter how right you are there will always be conflicts. In those situations iv talked to them politely, just be friendly and sometimes they will let you fish.

[Sinker]

Next time your in PTBO, get in touch

 

S.

[Weeds]

I have a high pressure job that often spills over into my weekends and as you mentioned I also prefer civility and peace to arguments and pointless fighting. I left the area within a few minutes and won't be returning to this guy's territory. I wasn't looking for trouble, but the other guy was so I defended myself accordingly. Anyway...I'm over it now and I'm just glad to be back up north where we have a little more freedom.

If only the Otonobee River was open for Carp, I would have avoided this situation in the first place.

 

Otonabee River is open for Carp, no?

[MJIG]

Otonabee River is open for Carp, no?

 

A 20km stretch of it is a sanctuary according to the regulations:

Otonabee River (Peterborough) from Trent-Severn Dam at Lock 19 to Bensfort Bridge at County Road 2 (20km downstream).

Fish sanctuary - no fishing from Jan. 1 - Fri. after 2nd Sat. in May & Nov. 16 - Dec. 31.

 

--

[Rod Caster]

Next time your in PTBO, get in touch

 

I will! What's your species of choice?

 

Otonabee River is open for Carp, no?

 

Yup, my regular carping grounds are a sanctuary this time of year. I don't know if I would have any luck either way... the water is nearly 6 feet higher than usual!