Am I Trespassing?

July 15, 2010

Question: I have been hiking upstream though a riverbed to fish the Sespe River in the Los Padres National Forest. A man who thinks he owns the river told me that I’m trespassing. What are my rights and what is the best way to show him I know it is my right to stay on the river in order to pass through “his” property? (Kyle L.)

Answer: It is possible that the man is accurate and you are trespassing. According to Department of Fish and Game Ret. Captain Phil Nelms, generally, surface water belongs to the state but stream and lake bottoms and shorelines are often in private ownership. Property rights questions are only minimally covered in California Fish and Game laws and the circumstances you describe are not included. You will probably need to speak with an attorney or other person licensed to provide legal advice for a solution you can rely on with confidence.

I think the  key issue is if the stream is navigable.  If it is, you have a right to be there below the mean high water mark no matter who owns the adjoining land. You might have to go to court to prove it.  This came up when a few rafters wanted to float the McCloud river thru the Hearst estate.  The rafters won.  It is also what made ranchers have to remove their barbed wire fences which went across the Fall River years ago.  This was decided in a notorious court cast which made the local judge a very unpopular man.  Non-navigable streams can be kept private.
Note...I am not a lawyer.  I just researched it and have read about it. 
A few years ago I went to launch my drift boat thru an established, legal launch on the Eel River.  When I got there I saw that the river had re-channelized, and the usual launch would not allow enough distance to ferry across to clear a rock garden.  I drove my trailer up the gravel bar about 100  yards to a safe place to launch.  The property owner came down saying I was trespassing and
and telling me to leave.  I politely explained the situation and said I'd be gone in 5 minutes.  He called the sheriff and got his bulldozer to create a berm in the gravel to block further access .
I was not charged.     He was cited for altering a stream bed without a permit.  I launched safely.

When I got there I saw that the river had re-channelized, and the usual launch would not allow enough distance to ferry across to clear a rock garden.  I drove my trailer up the gravel bar about 100  yards to a safe place to launch.  The property owner came down saying I was trespassing and
and telling me to leave.

Up in that area, it wouldn't shock me if he was putting up such a stink because you might have gotten a little to close to his "garden" of another kind.