Conservation Laws: A Delicate Balance
points on Delcour's property, signs were posted reading: No hunting, fishing or trespassing without permission.
At the point where the Meramec River crossed Delcour's property it was navigable by canoes, rowboats and other small floating craft of similar size and nature. In the past, when logs and timber were customarily transported by floating, the Meramec River was used for that purpose as it crossed over the Delcour land. At points above and below Delcour's farm, the stream was heavily fished by sportsmen who waded, floated and also fished from the bank.
The specific incidents giving rise to the case were dramatic. Elder placed his canoe in the Meramec River at a public access area upstream from Delcour's property. He and his wife then proceeded to float down the stream, fishing as they went.
When the Elders arrived at the Delcour farm they came to a wire fence across the river. As Elder was pressing the fence down to lift his canoe over it, Delcour ordered him to stop and advised him that he was not permitted to float over private property, calling his attention to the no trespassing signs. He advised Elder that he would sue him for trespassing if he did not turn around and go back upstream.
Elder advised Delcour that he had a legal right to travel down the stream, fishing as he went and even to tie up his canoe at likely spots or wade in the bed of the stream. (The exact wording of their conversation was not included in the court opinion, but we can safely assume it was more colorful than this account of it). Elder then proceeded to lift his canoe over the wire fence and continued to float down the river in his canoe, fishing with his fly rod from the canoe as well as by wading.
In discussing Delcour's rights as a landowner, the Court specifically noted that "the waters of the Meramec River are public waters" and that the submerged area of its channel which crossed Delcour's farm was a "public highway" for travel by floating or wading, for business or for pleasure, and that in traveling the course of the stream, Elder had not trespassed on Delcour's property.
Significantly (and interestingly) the Court took judicial notice of the publicly known fact that "the Meramec River has long been known as a very popular fishing stream."
The Court noted that a number of prior cases had