Welcome! Log In Create A New Profile

Advanced

Good news for Boater's rights!

Posted by Beel 
Good news for Boater's rights!
May 03, 2013 04:35PM
From The State Journal, Frankfort

JUDGE: WADING IN CREEK IS NOT TRESPASSING Ruling prompted by court case of homeowner who allegedly shot at people in Elkhorn By Lindsey Erdody Published: 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.

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
Re: Good news for Boater's rights!
May 05, 2013 12:18AM
Seems i remember something once pertaining to ky law about this.
Something to the effect of as long as a creek had a state recognized name was at least part of it.Which would be condusive to all said in the above.
So if a creek is not state recognized can be a game changer.
Oh and what the hells up with shooting at someone and on the Korn to boot.
Wheres his pot field??
Re: Good news for Boater's rights!
May 05, 2013 09:23AM
Did he yell a warning or anything or just start shooting in the general direction of people? That's a special kind of crazy.

Ali

Kayak > Prozac
Re: Good news for Boater's rights!
May 05, 2013 09:46AM
I remember when all this happened and still am left with the thought:

What if some crazy c***sucker shot at a boater in the creek and all of a sudden finds out that that boater is just as crazy and just as armed as he. And then realizes that that crazy boater is not satisfied with just firing back but will hunt your ass down and settle this issue of shooting at you in the first place.

Along the line of Mr. Quarles thinking: Fuck the law. The law doesn't mean shit when your ass has been shot does it

Dallas

Tattooed and Retired
Re: Good news for Boater's rights!
May 05, 2013 11:36AM
So now we need holsters on our PFD's. That'll be a game changer on the Ocoee!

Ali

Kayak > Prozac
Re: Good news for Boater's rights!
May 05, 2013 04:35PM
One time about a year ago I was putting on at the aw lot and this guy started shooting his gun. Don't know if it was in my direction or not but it was still pretty creepy. He was just blasting away! It was the house right behind the parking lot. I wonder if that's the same guy who's now on trial?
Tim
Re: Good news for Boater's rights!
May 06, 2013 08:20AM
Is it possible to buy a water proof gun to wear on your boat?smiling smiley tm



Edited 1 time(s). Last edit at 05/06/2013 08:21AM by Tim.
Tim
Re: Good news for Boater's rights!
May 06, 2013 08:23AM
Shuler that was probably him. As to why he would call 911 due to people in the creek? He sold AW acres to the group from the club ages ago..... smiling smiley He created the access issues near his home!smiling smileytm
Re: Good news for Boater's rights!
May 06, 2013 09:47AM
Does he need to shout a warning before firing at people in a creek?? The name is familiar - is this the same friendly neighbor that mows and helps keep a watch over Elkhorn Acres for us? Any weapon will fire safely after submersion as long as the barrel is clear of water and the cartridges are sealed to be water resistant. There is a danger to firing any weapon with a barrel obstruction, including water. But do we really need to be packing weapons to feel safe on Elkhorn? Firing back at an armed man sounds extremely dangerous at best. If he really is that batshit crazy then he will just keep firing until one of you are dead / incapacitated. I don't think a new feud in KY is the right answer.

Wes
Re: Good news for Boater's rights!
May 06, 2013 09:50AM
For what it's worth, Mr. Quarles sold his house and is moving to Florida. So, everyone is safe and sound at EA.
I don't think he ever had a problem with us. He was the gentleman that mowed for us. I always found him to be very agreeable.

love,
bethany (or beverly or whatever)
Re: Good news for Boater's rights!
May 06, 2013 11:11AM
AliBlair Wrote:
-------------------------------------------------------
> So now we need holsters on our PFD's. That'll be
> a game changer on the Ocoee!

What? You don't have a holster on your PFD?

_

Hanley Loller


"It's plum amazing what you can do when you damn well got no choice."
--Rickie Dale Larson
Re: Good news for Boater's rights!
May 07, 2013 09:59PM
Yeah, its like bethany said, I think that guy moved. I know his house was on the market like last year. I think. I don't think he was aiming at me. It was me and hunter door out there that day. Does anybody know if hunter still lives in pikeville or did he move back to Louisville? He rescued my ass twice that febuary day!! Anyway, glad the trigger happy dude is gone.
Re: Good news for Boater's rights!
May 09, 2013 06:19PM
Its sad to see a guy that we have known as a friend to boaters in this situation. I hope it settles without him or anyone else in trouble or getting hurt.

Joe W.
Sorry, you do not have permission to post/reply in this forum.