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