Opinion Number ( 1991 )

Dear Mr. Ward:

You have asked this office to advise the Iberville Parish Police Jury concerning a proposed ordinance which, while prohibiting trespass on private property, appears to exempt persons fishing and crawfishing upon a person's land during periods of high water or overflow.

As you are aware, this office has rendered several opinions which have advised various public officials that, although everyone has the right to fish in the rivers, ports, roadsteads, and harbors as well as land on the seashore to fish and shelter himself (La. Civ. Code art. 452), there is no statute or code article which authorizes the public to utilize a person's property for the purpose of crawfishing in periods of extreme high water. See Opinion Number 87-661 (released October 8, 1987).

The general public has the right to crawfish in all areas of public property. This includes navigable rivers and streams up the ordinary low water mark and in lakes up to the ordinary high water mark. Between the ordinary low and the ordinary high water mark of rivers and streams, private interest prevail unless the bank is being utilized for navigational use. La. Civ. Code art. 456. This has been held not to include hunting and fishing thereon. See: Warner v. Clark, 232 So.2d 99 (2nd Cir. 1970).

Thus, the fact that a person's property has been inundated during periods of extreme high water does not give the public an unrestricted right of access to his land. It is true that the public may have the right to utilize the water as it flows freely over an individual's property by virtue of the fact that the water and the use thereof is a public thing. La. Civ. Code art. 450. But, this does not authorize the placing of crawfish nets upon a person's property merely because one has gained access to a person's land by virtue of high water.

Consequently, Section D of the ordinance which appears to allow trespassing during periods of high water or overflow is, in all probability, not appropriate.

If we can be of further assistance in this matter please advise.

Very truly yours,

WILLIAM J. GUSTE, JR. Attorney General

BY: DAVID C. KIMMEL Assistant Attorney General