Can O' Worms Officially Opened-Wading Rights

Frankfort Judge Philip Shepherd ruled this week that public recreation use, including wading, trumps private property rights. The case involved a man who lived near the American Whitewater takeout on Elkhorn Creek who was accused of shooting at a neighbor. So, according to Shepherd, wading is no different than canoeing or kayaking on navigable waters.

Still considered trespassing if you entered into the creek via private property, or if you get out of the creek onto the land.

One thing's for sure, this issue is not settled. One thing's for sure, there are a lot of property owners along Elkhorn who probably aren't going to be influenced much by "Didn't you hear about the new ruling"?

Be careful out there.

Do you know what the case was by chance?

[B]Published in the state journal: does anyone have access to the full article OR OTHER NEWS RELEASES? CHEERS FOR THE JUDGE, THIS APPEARS TO BE A LANDMARK CASE FOR KY FISHERMEN!

JUDGE: WADING IN CREEK IS NOT TRESPASSING[/B]

[B]Ruling prompted by court case of homeowner who allegedly shot at people in Elkhorn[/B]

[B]By Lindsey Erdody[/B] [B]Published:[/B] May 3, 2013 10:42AM
People boating, fishing, swimming — and now wading — in Elkhorn Creek are considered to be on private property, but are not trespassing, Franklin Circuit Judge Phillip Shepherd has ruled.

I have it on paper (wife sprung for $.75). Don't have online access anymore as the quality of the State Urinal has steadily declined.

Landmark case, until it is reversed by a higher court, which I think is really likely. And like I said, there are lots of property owners who don't subscribe to the State Journal either.

State Journal
May 3, 2010

People boating, fishing, swimming — and now wading — in Elkhorn Creek are considered to be
on private property, but are not trespassing, Franklin Circuit Judge Phillip Shepherd has ruled.

Assistant Commonwealth’s Attorney Zach Becker filed a motion last month for the judge to rule
on the interpretation of the law in regard to a case against 60-year-old David Quarles.

Quarles, who lives on Elkhorn Creek at 4121 Peaks Mill Road, is charged with first-degree
wanton endangerment for allegedly shooting four times in the direction of Roseanna
Blankenship and two people in canoes.

He also allegedly shot at people in the creek in 2002 and 2004, but was found not guilty in one
case and the other was dismissed for lack of probable cause.

Quarles also has allegedly made at least 12 calls to 911 in the past 10 years reporting
trespassers on the creek.

The law gives property owners the rights to the center of a stream or river. However, this right is
trumped by the public’s use of the water for recreational purposes such as boating, swimming
and fishing, and the right for temporary anchorage and incidental use of the river bend.

Becker argued Blankenship was in the creek lawfully because the public’s right to use
waterways for navigation is superior to ownership rights.

Attorney Kevin Fox, who is representing Quarles, argued Blankenship was trespassing because she was wading in the creek on Quarles’ property
and “at no time operated a canoe, boat or any other means by which she was navigating the creek.”

Fox attached to his argument an email from Assistant Director of the Kentucky Department of Fish

and Wildlife Maj. J. Shane Carrier. He said in the email Kentucky law “states that individuals must have permission from the landowner to wade a
stream.”

In his decision filed Tuesday, Shepherd wrote,“the Department of Fish and Wildlife, as an executive branch agency, has no authority to determine
criminal or property law.”

Shepherd ruled wading is considered “incidental use” of the creek and therefore is not trespassing.

Shepherd and Becker both noted Quarles does own to the center of the creek, but those rights are secondary to the public’s use of the water.

However, the public must enter the creek at designated access points or have permission from a landowner to enter through someone’s property.

“It’s not for being in the creek, it’s how they got there,” County Attorney Rick Sparks said.“If you’re lawfully in the creek, you cannot be trespassing.”

Quarles is scheduled for a jury trial Tuesday. As part of Shepherd’s ruling, the defense will not be allowed to use the words “trespassing” or “trespassers” in regard to the people who were in the creek.

ELKHORN CREEK

You’re trespassing if

>You entered the creek through someone’s property without the owner’s permission

>You’re on a property owner’s land

You’re not trespassing if

>You’re swimming, boating, fishing or wading in the creek

>You’ve temporarily anchored on the creek

The guy should be charged regardless if they were considered to be trespassing or not. You can't just shoot at someone because they are merely trespassing.

[QUOTE=SLP;513748]The guy should be charged regardless if they were considered to be trespassing or not. You can't just shoot at someone because they are merely trespassing.[/QUOTE]

The guy has issues and should be dealt with. Accused two times before and now this?? Accusations are not fact but it is documented along with the 911 calls....let him shoot at or in the direction of someone who is a CCDW holder and he may start a fight he doesn't want. What if he does this and hits a child? They fish too.
I never liked the interpretation of the law before but followed it. I hope this new interpretation stands and this guy gets fined or somehow dealt with so the next story isn't how he shot a family or we have a shooting of a home owner on Elkhorn Creek who is known for shooting at people.

[QUOTE=SLP;513748]The guy should be charged regardless if they were considered to be trespassing or not. You can't just shoot at someone because they are merely trespassing.[/QUOTE]

Exactly what I was thinking. Since the proper response to someone wading in a creek is aggravated assault or potentially manslaughter. [URL="http://www.fishin.com/forums2/kentucky-discussion-board/98349-can-o-worms-officially-opened-wading-rights.html"]David Quarles[/URL] shouldn't be allowed to own firearms if he chooses to abuse them in such a manner.

I called KDFWR today (at the 800-858-1549 number) and according to the fella there they still consider wading the Elkhorn to be trespassing. He said, as I've heard elsewhere, any time you make contact with solid ground, even if it's under water, you've got to have landowner permission. Also, he said the same holds for any body of water in the state.

If this ruling has changed anything, they haven't told the guy who answers the phone at Fish & Wildlife

What I don't get is why does the landowner have to own any part of a stream. It seems to me they should own to the water's edge and let the public fish, wade, boat if they so choose. Why would a law not be changed after all these years to avoid such situations. I must be missing something here. How does wading a creek interfer with the landowner's privicy? I can see the problem if people were getting out on the landowner's land and causing problems, but just wading in the water and fishing...what is the problem with that? If the people are so crazy about their privicy, why not just close down every stream and river and not allow anyone access?

I wade Elkhorn often and I'm dang choosy where I do it. I have a nice place in Midway that a very nice lady allows me to park on her property and enter the creek. I use a ''BEAT TO DEATH'' stretch also in Frankfort and don't have any problems.

Let me tell ya there are some bonified, fried, dried and layed to the side individual's that own property on that creek and they will shoot at you and some of them might actually be trying to hit you. Now I like Don said think that is just NUTS, CRAZY and INSANE. How would that person feel if they floated somebody down stream and for what??? Because you were trespassing, Come on Man, get some mental health intervention.

By the way, another word of caution the Eastern water snakes are breeding and making nests with young right now. I have never seen so many and they are aggressive. Can they kill ya.....NO, Can they make you make a Chulupa in ya britches....YES....

they wont have to shoot at me, i hates me some snakes ! No thank you, i wont be havng the big chalupa today :o