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  1. #31

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    Quote Originally Posted by MTskibum View Post
    Spring creeks can be owned if the originate on the property. In this case passage would be restricted.



    If the spring creek just passes through the property, then passage cannot be restricted and the high water mark law applies.
    Not sure that's right, since DePuy's starts up on the Armstrong property, so theoretically Armstrong's could keep people from using their portion without paying, but DePuy's couldn't, since it only runs through theirs. And Nelson's is also owned by two separate landowners, I believe.

    I always thought that the Armstrong/DePuy spring creek got around the law because it's not quite a "natural" spring creek. As I understood it, the spring once emerged and flowed a short distance to the river, while what is now the spring creek channel was actually the old channel of Trail Creek. The spring was diverted into the Trail Creek channel, and later Trail Creek was diverted to run directly to the river in the old spring channel. I don't know about Nelson's.

  2. #32
    Join Date
    Sep 2010
    Location
    Western Montana
    Posts
    4,630

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    Quote Originally Posted by al_a View Post
    Not sure that's right, since DePuy's starts up on the Armstrong property, so theoretically Armstrong's could keep people from using their portion without paying, but DePuy's couldn't, since it only runs through theirs. And Nelson's is also owned by two separate landowners, I believe.

    I always thought that the Armstrong/DePuy spring creek got around the law because it's not quite a "natural" spring creek. As I understood it, the spring once emerged and flowed a short distance to the river, while what is now the spring creek channel was actually the old channel of Trail Creek. The spring was diverted into the Trail Creek channel, and later Trail Creek was diverted to run directly to the river in the old spring channel. I don't know about Nelson's.
    I believe what Skibum meant was that a spring creek can be private in Montana under stream access law if the creek originates on private property. On the converse, a spring creek that is a channel of a main river stem like in the case of Odell or Mitchell Slough, then the public has the right to access the creek via the main river.

    It isn't about who necessarily owns the spring creek itself, simple that on private property it is essentially "owned" by the landowner. In reality the land is simply owned so that party can sell access to it like Armstrong and DePuys.

  3. #33
    Join Date
    Nov 2009
    Location
    White City (tad north of Medford) Oar-E-Gone
    Posts
    10,759

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    Interesting court case just finished up here in Oregon. End game was once rain water touches the ground, it becomes 'public water' and can not be (for a lack of better term) 'contained.' Guy built three small lakes (stocked them with trout if memory serves) and all were feed by rain water run off.

    End game was no you can't.
    When wealth is lost, nothing is lost; when health is lost, something is lost; when character is lost, all is lost. - Billy Graham"

  4. #34
    Join Date
    Apr 2011
    Location
    Whitefish, MT
    Posts
    201

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    Here is an interesting questions...if you string barb wire across a river that is floatable and someone floats into it and is hurt or tears up there boat, wouldnt the land owner be liable for that? Further, wouldnt the landowner have to post the fence?

  5. #35
    Join Date
    Dec 2012
    Location
    Great Falls, Montana
    Posts
    122

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    Here is your classic example of the "yes and no....it depends."

    If the landowner owns the river bed, then they can fence across the river for purposes of land use or for showing land ownership (navigable vs. non navigable river test). This is the really tough part b/c we can float so many rivers in MT that have the river bottom owned by LO ranchers. But they have to do so that does not interfere with the public's use of the surface, which is why you see a lot of those fences with the barbless wire on the bottom line (raft goes under). Otherwise the land owner would have to provide a portage around the fence. Also, a landowner doesn't owe a duty to those recreating on the water's surface besides misconduct.

    Is your question about the fence being posted on the river?

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  7. #36
    Join Date
    Apr 2011
    Location
    Whitefish, MT
    Posts
    201

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    So if the owner puts a fence across a river and my raft gets torn up on it...it is me that has to pay for it?

    Use to live in Colorado and barb wire was common across rivers...and yes right below the surface was something several ranchers did intentionally and people got seriously hurt.

  8. #37
    Join Date
    Dec 2012
    Location
    Great Falls, Montana
    Posts
    122

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    MT Boiler,

    That's pretty much it unfortunately. Like I said, they can't be doing any misconduct, and it becomes pretty fact specific at that point. Doing an "adventure run" on higher rivers certainly leads this scenario to happen a lot. You don't see this too often down on lower parts of rivers, and when the fence is across there usually is that "smooth line" so you can slip a raft under. If it were the flip side--how many wader repairs would ranchers/farmers be having to pay us?

    I've also had to cross my fair share of really barbed wire sections but I understand a LO not wanting their cattle in the neighbors land....

  9. #38
    Join Date
    Nov 2009
    Location
    White City (tad north of Medford) Oar-E-Gone
    Posts
    10,759

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    An amazing thread, an I've never fished in Colorado so not much I could add. Save for this is also an issue in some areas of Montana. Rancher's, bless them but if some don't get their head in the game that this is no longer "The Wild West" it could cost them everything.

    I've known several over the years and the bright one's will put in Arrow head gates for walking access. Hook up with a reputable fishing club and do a 'Here's the deal.'

    Steelhead Trout Club of Washington did this for years, and I suspect they still do so. Get a call that someone's cut a fence and 'we'll be there in hours,' well, daylight hours. Help round up his livestock if necessary? You bet, repair the fence you bet.

    Big tip of the hat to the local Sheriff's; they didn't like the calls any better than we did (not that often, but it did happen).

    So how did you get foot access? You had the STCW sticker in your window, drove in to the farm yard, knocked on the door and told them you (and how many) were here and where would you like me/us to park.

    Best time? We're there, four of us if memory serves, and wife asked if we could help. Husband had a minor stoke and You BET! Never wet a line that day but worked like 'Dogs.'

    We're done, she had each of our phone numbers and a schedule as to who would be out every day until he was back on his feet. A week later, and phone calls the 'your day' list had expanded to almost 30. Place to find/fix was really hard even during daylight hours. Minor (and I still think a brilliant idea) was sign on the gate. It just said "Here."

    Second half was the lady charged up/fired off a Colman lantern and put same by the driveway gate at zero dark thirty.

    My day today, I call the next person and confirm he'll be there tomorrow. RULE ONE! If you can't, you call that day's guy and advise. Very odd off misses, but they did happen over the next 90'ish days. One fellow had never been to the property and got totally lost trying to find same at something like 0500 on a winter morning.

    Back then there was no such thing as a GPS.

    fae
    When wealth is lost, nothing is lost; when health is lost, something is lost; when character is lost, all is lost. - Billy Graham"

  10. #39

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    Finally fished this section again.. it had been a few years.

    Now I see what you're talking about.. that definitely is O'Dell
    I had to look on Google Earth to see that it was indeed O'Dell and not part of the Madison (I always thought it was the Madison, just part of the braids)

    Seems like they're just asserting their rights to the spring creek?

    The Horses and that large Bull that used to be in that field is gone, so I'm guessing.. the ranch changed hands?


    Oh, well. Lots of good water to fish near there that won't cause issues
    Dave
    406

  11. #40
    Join Date
    Aug 2013
    Location
    Billings, Big Sky Country
    Posts
    132

    Default Re: Barb wired fence running across Odell spring creek in Ennis Montana

    "Not sure that's right, since DePuy's starts up on the Armstrong property, so theoretically Armstrong's could keep people from using their portion without paying, but DePuy's couldn't, since it only runs through theirs. And Nelson's is also owned by two separate landowners, I believe."

    "I always thought that the Armstrong/DePuy spring creek got around the law because it's not quite a "natural" spring creek."

    Now don't quote me on this but I believe the Armstrong & Depuys were established before Montana became a state and were able to be Grandfathered into an exception. Also believe the cabins at East Rosebud Lake are in the same category as they too are private.

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