Creeks and rivers, are they regarded as Crown land and available to be fossicked?

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Creeks and rivers, are they regarded as Crown land and available to be fossicked? Empty Creeks and rivers, are they regarded as Crown land and available to be fossicked?

Post  Peta on Sat Feb 01, 2020 11:49 am

As a young fella I recall that creeks and river banks were classified as Crown land and as such, you could enter and fossick the banks without permission of the farmer/land-owner who's property lay either side, as long as you don't cross his property.

Is this still current or have I got it completely wrong?

I assume that this may still be correct because if a farmer pumps water from the creek he commonly has to obtain permission and then they often install a water meter to measure his water use for which he gets billed.
Therefore he doesn't own the water but does he own the land adjacent to the water?

If it is correct and creek and river banks are owned by the Crown, can I enter this area without needing permission from the farmer/land-owner, as long as I don't enter his land to get to the creek or river bank?

If it is correct do I then need to obtain permission from any government department etc?

And finally, if it is correct how wide from the water's edge is regarded as the allowable creek/river bank and where the private property border begins?

Which would be the appropriate government department to find the official decree regarding this question?

Thank you for any member's feedback.

Peter.

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Post  adrian ss on Sat Feb 01, 2020 5:38 pm

The bottom line: Public use of rivers is not a "taking"
Therefore no “taking” of private property is involved, and no compensation is due. ... Private land along rivers often extends to the middle of the river, but federal law confirms a public easement to navigate and walk along the banks.Sep 3, 2013

This may help you:

https://www.exploroz.com/forum/45914/public-access-to-waterways-on-private-land
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Post  Peta on Sat Feb 01, 2020 5:49 pm

Thank you Adrian.

I'm not sure what the term "taking" is in reference to?

Bottom line;

How wide is the river/creek bank easement?

Can we fossick/pan on this land without having to ask permission of the landholder adjacent to the easement?

Thank you,

Peter.

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Post  adrian ss on Sat Feb 01, 2020 7:26 pm

A Taking is when the Gov takes possession of part of   a private property in order to do something with  the land without the owners permission eg build a bridge over a river that passes through private property.

As far as I can recollect; you can pan and fossick on/in a river that passes through private property up to the high water line...Not a flood level.
It is generally best to get the owners permission first.
If you have to go over a fence to gain access then you need property owners permission. If there is a bridge outside the property line that is over the river in question then you can access the river bank via beneath the bridge. If there is a fence across the river where the river passes under the bridge. I do not know if a river can legally be fenced off but I imagine that the property owner would not want his cattle getting away via beneath a public bridge.
Maybe contact the Dept Of Mineral Resources??

This might help:
https://realestate.findlaw.com/land-use-laws/what-is-a-taking.html
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Post  Peta on Sat Feb 01, 2020 11:46 pm

Thank you Adrian, your replies are much appreciated.

I will follow up on the links you gave me.

Obviously the belief that I grew up whereby creek and river banks were open to everyone was either very wrong or have changed a lot.

I suppose I was dreaming to think that there would be an easy answer.

That's life.

Peter.

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Post  adrian ss on Sun Feb 02, 2020 7:31 am

The law  varies from State to State.
It used to be that a property owner does not own the water in a river or creek that passes through his property and that the public could travel freely along the river. That is still the case. Most rivers in Australia pass through private land. The property owner in most situations owns the land to the centre of the river and as far as I can tell, the public can access the immediate banks of the river...what ever that means?? If you can gain access to the river and the river bank via public land then you do not require the property owners permission but if you have to pass through a fence or gate to get to the river and river bank then that requires property owners permission, otherwise you could be open to prosecution for trespassing.
The Land Titles department in your state should be able to answer your questions accurately.
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Post  Axtyr on Sun Feb 02, 2020 9:47 am

Peta.

If you live in Victoria then there is nothing to worry about.

If you are crossing private land, i.e. "trespassing", just grab one of his sheep and tell him that as a vegan you are liberating it. The judge will then issue you with a $1.00 fine and you still get to keep the sheep. Very cheap lamb for $1.00.

Regards Axtyr.

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Post  adrian ss on Sun Feb 02, 2020 11:55 am

Hey axtyr; could you put that to the test and let us know how it turns out?
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Post  Peta on Sun Feb 02, 2020 8:42 pm

So herein lies the question.

Example: A medium size creek with adjacent privately owned farmland.

The boundary is fenced to keep the cattle in.

Can I legally walk down the creek banks without having to jump through hoops in finding my rights of entry?


Here is a typical example of a creek:


Creeks and rivers, are they regarded as Crown land and available to be fossicked? Dscn5510


Then when you have a closer look at the sign, the question about entry is obvious.


Creeks and rivers, are they regarded as Crown land and available to be fossicked? Dscn5511


It leaves me wondering just who is in the right?

Is the sign legal and proper or just an audacious method used by the landowner to keep citizens like us in place, or more correctly, out of his place?





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Post  adrian ss on Sun Feb 02, 2020 10:16 pm

If the property owner owns the land either side of the river/creek then he can fence it all the way across to keep stock from wandering out.
The No trespassing sign is legal in that it is referring to the land above the high water mark (not the flood level) it is not applicable to the river water.  The property owner does not own the river water on his property.

You could get over/through the fence where it passes over the river or at or below the high water mark without causing damage to the fence but the property owner could still go you for trespass if he got a bit pissed off coz you did not ask his permission to  enter his property. On the other hand if you are in or on  the river or on the bank below the high water mark then you are safe...For myself I would seek the owners permission whether I was legally obliged to or not. just to be sure to be sure.
I can recall a few occasions when I did not know where to find a property owner at the time I wanted to get down to a creek passing through his property so I left a note pinned to the property entry gate stating where I was and what I was doing..  
The law is tricky in regards to this issue so check with the land titles office in your State

Some more info here.
https://www.lawanswers.com.au/threads/property-law-ignoring-fences-to-private-property.2468/
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Post  davsgold on Mon Feb 03, 2020 3:16 pm

https://www.icsm.gov.au/sites/default/files/Fundamentals_of_Land_Ownership_Land_Boundaries_and_Surveying.pdf

page 10 "The nature of boundaries"

"It should also be noted that there is a presumption at common law that where land is described as being
bounded by a non-tidal river or stream, ownership extends to the middle line of the water (the ad medium
filum acquae rule), unless there is a clearly defined intent to the contrary."

And read this one also, https://rg-guidelines.nswlrs.com.au/deposited_plans/natural_boundaries/survey_definition
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Post  Nuggerty on Tue Feb 04, 2020 12:06 pm

Here in QLD there are boundary and non-boundary water courses. Boundary Water course are state property which the adjacent farmers may have riparian rights over (permission to draw water) - but the water course belongs to the state. Non-boundary water course are private property and form part of the land parcel.

However, the best bet would be to secure permission to access either boundary or non boundary water course, bear in mind that as an individual your behaviour reflects on all of us.

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Post  Axtyr on Tue Feb 04, 2020 6:43 pm

Adrian.

I don't have to put it to the test, it has already been done.

Vegans took a goat from a café in Gippsland and was given a $1.00 fine and wasn't ordered to give the animal back. So how is any trespassing law effective if this is the outcome for blatant theft.

Regards Axtyr.

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Post  Tunnel Rat on Tue Feb 04, 2020 10:01 pm

There are very few properties in vic that own the stream,in fact, the crown owns a chain either side but allows the adjacent land owner the use of that land.Seek permission,however,to avoid drama with people who think the stream belongs to them,in the vast majority of cases,it doesn't.Do your research.
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Post  Markinsydney on Thu Feb 20, 2020 6:55 pm

Hi

The laws relating to prospecting in a river would be different to the ones governing fishing.  With fishing, you may be in the bed of the normal river but you cannot cross any part of the land adjacent to it.  So if you enter a river from a bridge or public road, and remain in that river on foot or boat, then the farmer can't stop you.  That does not include the bank, the flood plain, the 'Queen's Chain' or any other term.  It was all tidied up in 1994. BUT, with prospecting it's a different matter: there is no Act protecting you like the FISHERIES MANAGEMENT ACT 1994 – SECT 38.

(1) A person may take fish from waters in a river or creek that are not subject to tidal influence despite the fact that the bed of those waters is not Crown land if, for the purpose of taking those fish, the person is in a boat on those waters or is on the bed of the river or creek.
(3) In this section, “bed” of a river or creek includes any part of the bed of the river or creek which is alternatively covered and left bare with an increase or decrease in the supply of water (other than during floods).

Sorry to rain on your parade, but the farmer owns the riverbed and it's their decision who can disturb it.

Cheers

Mark

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Post  nero_design on Sat Feb 22, 2020 12:33 pm

In NSW, my understanding is that there are old types of titles & deed and there are modern types.

In the instance of an old type of title, the landowner owns the property on one side of the river and in the case of really old titles they owned the property out to the mid-point of the river.   But if he buys the property on the opposite side of the river, then the old titles often gave them ownership of the section of river between the two properties.  This usually applied to properties that have been in the family for a few generations and go back to ownership in the early 1900s.

Modern titles usually only give ownership to the properties above the waterline (high tide) and not the river between them (which remains Crown Land).  There's all kinds of subrules that relate to the public having access to Traveling Stock Routes over and across such properties but the rules are fairly straight forward.

The ONLY way you can know if an old or new type Title applies is to inquire with local council.  The Farmers only own the riverbed between two properties in the case on OLD leases issues at the turn of the last century.  If that property has remained in the hands of the family for decades, then they technically still maintain ownership of the land and the region of river between the lots.  Modern leases don't do that any more.  This applies to NSW to the best of my knowledge.  I can't speak for the other states.  

Inclosed Land Act of 1901:
Property needs to be fenced.  But this isn't practical on some lots.  But otherwise, you can't cross a property boundary without permission from the owner to access the property.  Climbing any fence that encloses a property is therefore considered trespassing.  Of course, this is considered a 'civil matter' rather than a criminal matter.... so it's up to the property owner to sue the trespasser.  Most have better things to do with their time but an argument with a property owner may result in him pressing forward with a case.  On the other hand, you have the right (if challenged), to have the challenger prove that they own the land.  Most people don't carry a title deed on them so this alone can trigger all kinds of responses and reactions.  The owner can order you off their property verbally or through other legal means. They can also involve the police though it remains a civil matter unless other crimes are committed. The fines for violating the Inclosed Land Act can and sometimes do apply to Crown Land (see the Sunny Corner Mine near Bathurst which are Crown Land but are fenced in and ban public access) which is fenced in for safety reasons or to prevent vandalism to historic structures. The Inclosed Land act of 1901 also has a selection of offenses that can be applied to people in the act of tresspassing... such as "leaving a gate open" which can lead to compensation awarded against the offender.  Technically speaking, any property with a boundary fence is protected by the Inclosed Land Act.

There are websites that the public can access that generally show the boundaries and lot numbers of properties.  This can help you locate the owners of specific lot numbers but it can sometimes show you where the river banks are considered Crown Land.  I'd normally recommend that you contact your local detecting club for details on these matters but it seems many of the long established prospecting and detecting clubs have closed in recent years.  Getting a hold of some older "First Edition" topographical maps from your local map center is the way to start working out which boundaries are private and where the Crown Land lies.  The Second and Third Edition topographical maps tend to eliminate much of the details that prospectors would normally be interested in.  The First Editions showed major mines, major alluvial deposits and old workings.  You can still find them in the country service stations from time to time but the newer editions have eliminated many of these important mapping details.
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Post  mbasko on Sun Feb 23, 2020 10:50 am

Markinsydney wrote:Hi

The laws relating to prospecting in a river would be different to the ones governing fishing.  With fishing, you may be in the bed of the normal river but you cannot cross any part of the land adjacent to it.  So if you enter a river from a bridge or public road, and remain in that river on foot or boat, then the farmer can't stop you.  That does not include the bank, the flood plain, the 'Queen's Chain' or any other term.  It was all tidied up in 1994. BUT, with prospecting it's a different matter: there is no Act protecting you like the FISHERIES MANAGEMENT ACT 1994 – SECT 38.

(1) A person may take fish from waters in a river or creek that are not subject to tidal influence despite the fact that the bed of those waters is not Crown land if, for the purpose of taking those fish, the person is in a boat on those waters or is on the bed of the river or creek.
(3) In this section, “bed” of a river or creek includes any part of the bed of the river or creek which is alternatively covered and left bare with an increase or decrease in the supply of water (other than during floods).

Sorry to rain on your parade, but the farmer owns the riverbed and it's their decision who can disturb it.

Cheers

Mark
Spot on Mark. A lot of people confuse this legislation to mean that you can access rivers for any activity but it only relates to fishing & doesn't cover prospecting/fossicking in any way.

In NSW it's true there are various title deeds that are confusing in relation to accessing rivers or even other Crown Lands. People need to remember that while major waterways (rivers & some creeks) might be Crown Land when looking at maps showing Crown Land many of the more desirable smaller creeks & gullies aren't.
Even where a waterway is marked as Crown Land the NSW legislation & fossicking rules are very clear. To fossick/prospect on Crown Land it must be unmanaged or you must have permission from the Crown Land Manager, lease/licence holders etc. These can include bodies such as WaterNSW, Local Lands, Local Council, Common Trusts etc. or private Crown Land lease/licence holders.
Where a waterway in NSW is marked as Crown Land it is likely managed or governed by a body such as WaterNSW.
Many of these waterways have legal responsibilities & rights for the adjacent landowners.
WaterNSW wrote:Landowners have legal rights and responsibilities for managing riparian areas. Landowners are entitled to take water from a river or creek which fronts their land for domestic use and stock watering without the need for a water management licence. All landowners should seek advice about any activities they wish to undertake that may disturb vegetation, soil or water.
In short it's always best in NSW to seek permission from the adjacent landowner/s even if marked as Crown Land as they may still have legal responsibilities for the riparian zones & the actual waterway.
A common theme heard around here is people accessing rivers or creeks & when challenged, waving certain maps + mouthing off at landowners with incorrect information about their right to access. This does nothing to help anyone's chances of gaining access into these or other areas. Crown Land & access to it is a lot more complex than some markings on a map. There are many reasons why an area of Crown Land might not be legally accessible & it requires some thought/research before just barging in.

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