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Can a Landowner Fence Across a River ?

Even though we have a stream access law and an accompanying bridge access law, this does not prevent landowners from fencing across the river, or from putting a fence part way into the river. (In any river with a significant spring run off this is often not feasible because of damage caused by stuff floating down the river.) However, a recreationist using a river, can portage around the fence obstruction using the "least intrusive manner" .

There is no requirement for landowners to construct or pay for official or umnofficial portages. .

While a landowner can fence to a bridge abutment , subject to the provisions of the bridge access law, it wolud seem that a fence across the river right under a bridge would constitute an illegal encroachment of a public right-of-way. .

Here is the exact text of the law in this regard :

" MCA 23-2-311. Right to portage -- establishment of portage route. (1) A member of the public making recreational use of surface waters may, above the ordinary high-water mark, portage around barriers in the least intrusive manner possible, avoiding damage to the landowner's land and violation of his rights.

(2) A landowner may create barriers across streams for purposes of land or water management or to establish land ownership as otherwise provided by law. If a landowner erects a structure which does not interfere with the public's use of the surface waters, the public may not go above the ordinary high-water mark to portage around the structure. "

(Note: The last paragraph refers to things like "float gates" - hanging PVC pipe - which keep cattle in, but do not obstruct floaters.)

related articles

Ruby River Stream Access Victory
( 07/01/2016 )   7/1/2016PLWA, once again, has been victorious in the battle for the public's stream access on the Ruby River, from the Seyler Lane Bridge, likely the original stagecoach route from Salt Lake City, north to Virginia City and Helena.It has been over a decade that PLWA (formerly known as PLAAI) has been involved in a lawsuit over public access to the Ruby River from Seyler Lane and the Seyler Bridge, a public prescriptive easement right-of-way in Madison County.

"Dark Money" Brought to Light
( 07/01/2016 )   The June-July, Newscasts section of Fly Fisherman reported on the recent investigation by Montana's Commissioner of Political Practices, Jonathan Motl, into a dark money campaign that could overturn Montana's Stream Access.Fly Fisherman recounted the Montana Growth Network's campaign contributions to District Judge Laurie McKinnon's run for our Montana Supreme Court.

public land issues

Seyler Lane Update
9/24/2015Seyler Bridge Easement - More Than Just RecreationUpdate - Kennedys attorney requested a postponement of the September 21 hearing.

Tenderfoot - Four Years and Counting
9/24/2015Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker.

    18 more public land issues

Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
      PLWA.ORG   -   Public Land & Water Association