BUSINESS LAW 101 / Obstructing Roads and Waterways

By Albert L. Kelley, Esq.

After discussing planes and trains, we are left with boats and cars.  More specifically, today I will be talking about roadways and waterways.  

While reading the statutes that I am going to discuss, I was reflecting on the reasons these laws were passed in the first place.  Often times, if a law is written, it is because something has happened that the legislature wants to prevent from recurring.    These laws also show that sometimes laws are kept on the books long after their reason for being is removed. 

Florida Statute 861.01 makes it a first-degree misdemeanor to obstruct “any public road or established highway by fencing across or into the same or by willfully causing any other obstruction in or to such road or highway”.  In reviewing the law, I found no cases where anyone was ever charged with violating it (although a 1945 Supreme Court case, does mention that the defendant could have been charged with the violation for parking a bus in such a manner as to block a city street). Statute 861.011 makes the same action a second-degree misdemeanor if the blockade is to a transportation facility.

Florida Statute 861.02 makes it a second-degree misdemeanor to erect on any navigable watercourse any dam, bridge, or other obstruction, whereby the navigation of boats drawing 3 feet of water or the passage of fish may be obstructed.  Similar to 861.01, I found no cases were anyone was charged with a violation, but again, a court referenced the law in 1968, discussing whether a city could build a bridge over a canal that would effectively shut down passage through the canal (They can).  If a bridge is built by a railroad or private company, it must include a raw or swinging span that will allow boats to pass through. Failure to do so is a first-degree misdemeanor.

There is a follow-up statute that has special implications for us in the Keys.  It makes it a second-degree misdemeanor to obstruct a waterway by placing “any spiny lobster, crab, or fish trap or set net or other similar device with a buoy or marker attached so that said buoy or marker obstructs the navigation of boats in channels of the waters of the state which are marked by, and which markers are continuously maintained by, the Coast Guard of the United States.”  

While you cannot erect a dam that could block a waterway, it is also a crime to damage a dam.  Florida Statute 861.03 makes it a second-degree felony to “willfully, maliciously, and unlawfully injures, removes or destroys any dam lawfully placed in or on any stream in this state for the purpose of propelling any kind of machinery”.  What is interesting about this statute is the specific nature of it.  It only applies to dams that are “for the purpose of propelling machinery”.  It seems that if the dam is just to create a reservoir, the law does not apply (although it might be a violation of several other laws).  

The following statute involves a nuisance, rather than an actual obstruction.  Under Florida Statute 861.04, it is a second-degree misdemeanor to place a water hyacinth in any state waterways. These are an invasive plant that can eventually close off a waterway.  First invading Florida in 1890, within five years the plant threatened to overtake the St. John’s River.  Louisiana had a unique idea to destroy the plants which had grown excessively there. In 1910 they suggested importing hippopotamus to eat the plants and then the hippos could be slaughtered to provide meat. The plan never caught on. 

Now here is where we get to laws that haven’t changed in a long time.  It is a third-degree felony for the master of a steamer, barge or other vessel to block a harbor (Florida Statute 861.06).  While prevalent in the late 1800’s, Florida has not seen active steamboat use since the early 1900’s.  Yet they are still listed in the law. 

Another law from the early 1900s that likely needs an overhaul is Florida Statute 861.07.  This law makes it a second-degree misdemeanor for “any tie cutter or log cutter cutting ties for a railroad or logs for milling purposes shall cut or fell any tree into or across any traveled road, whether it be a county road, a road regularly used by the public, or a neighborhood road, and shall fail to remove the same within 2 hours thereafter so as to free the road from all obstruction therefrom”.  As it has likely been a century since we have had log cutters or tie cutters working on the railroads in Florida, this is probably a law that should be abolished.

In a similar vein, it is a second-degree misdemeanor for anyone to fell a tree over a roadway and leave it there for more than six hours (Florida Statute 861.08). It is also a second-degree misdemeanor for anyone to cut or trim shade trees placed on the right of way of any street.

Al Kelley has worked as an attorney in Monroe County for the last 32 years. He is the author of five law books available through Absolutely Amazing E-Books and the host of “Basics Of The Law”, a legal YouTube channel. He serves as the Vice Chair of the 16th Judicial Circuit Professionalism Panel.  He also previously taught business law, personnel law, and labor law at St. Leo University. This article is offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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