Fishing a Public Waterway When Posted “No Trespassing”

October 6, 2011

Question: While fishing on Hot Creek (Mono County), I came to a fenced-off section of the creek, posted with no trespassing signs. I have always been under the impression that once you legally access (don’t cross private property) a river, you may continue fishing the length of it. Am I wrong? (John K.)

Answer: According to California law, most water in above-ground, free-flowing waterways is state water and not considered private property. The land underneath the water, however, may or may not be held by the state. On small or ephemeral streams, for example, the land in the bed of the stream could be privately owned.

If you have legally gained access to the state’s water, such as at a boat ramp or on your own property, or another person who has granted you permission, you can most likely continue up or down the waterway in a boat without trespassing. But anytime you “touch” the bed or bank of the stream that is not owned by you, you may be trespassing.

If there is a fence across the stream, which is common on smaller streams in areas where livestock are common, you can not assume that it is legal to cross over it even if you can do so without touching the bank or bed of the stream. You should not attempt to do so until you have either gained the permission of the person who owns the property or received a determination that the land underneath the stream is owned by the state.

I thought that any on navigable  waterway (including by Yak)  regardless of ownership that you had the right to be anywhere between the mean high water lines on the banks.  I thought this was adopted into California law from English common law and the treaty of Juan Hidalgo.  You must of course obtain legal access to the area below the mean high water line.
Is this right?

This is referring to rivers that flow through private property...wherein the water may be owned by the state (and thus a public resource) but the riverbed is owned by a private citizen/group. So in that scenario, if you get out of the boat and walk on the riverbed, you are trespassing. It's confusing stuff. I have heard people refer to the mean high-water line for rivers in the past...and that you have to stay below the high-water line (because if you were above it, you'd be walking further up from the bank...like through a field etc...and that would be trespassing). The other factor that comes into play is the term "navigable" waterway because apparently not ALL rivers/streams/creeks are considered navigable.

This is referring to rivers that flow through private property...wherein the water may be owned by the state (and thus a public resource) but the riverbed is owned by a private citizen/group. So in that scenario, if you get out of the boat and walk on the riverbed, you are trespassing. It's confusing stuff. I have heard people refer to the mean high-water line for rivers in the past...and that you have to stay below the high-water line (because if you were above it, you'd be walking further up from the bank...like through a field etc...and that would be trespassing). The other factor that comes into play is the term "navigable" waterway because apparently not ALL rivers/streams/creeks are considered navigable.

But shouldn't the DFG in their response have mentioned a way for the individual to file a complaint about the homeowner's fence blocking access to a navigable waterway?

The other factor that comes into play is the term "navigable" waterway because apparently not ALL rivers/streams/creeks are considered navigable.

True, being the LRM, it's something I had to know. You would be surprised how many people think they can hike in, camp on the beach and have a "little" bonfire, because they think it's public land. 

If it's non-navigable, meaning you can't get a boat up it, it's private property.

The Fall River is a phenomenal trout fishery.  It used to be  for the exclusive use of the land owners and famous visitors.  The ranchers used to run their fences across the fairly wide river and only they and their guests could fish it.  Then after years of litigation it was established that it was in fact navigable which it clearly was, and the ranchers were forced to take their fences down.  However no outsiders could fish it until CalTrout was able to buy a small piece of riverfront land to launch boats from. The river is a spring creek with fairly constant flows, and there are no gravel bars to speak of, so the concept or below mean high water is hard to apply. 
I am not sure if it does in rivers and would like to hear from some NCKA lawyers who are familiar with real estate law.