6 ELR 20784 | Environmental Law Reporter | copyright © 1976 | All rights reserved


People v. Sweetser

No. A-181 (Cal. Super. Ct. October 6, 1976)

Judgment for conviction for trespassing is reversed. Defendant crossed an unused, fenced-off portion of a county road easement to enter the Kern River with his kayak. In holding that defendant had the right to use his kayak on the river, the court rules that any stream capable of being used for recreational purposes is open for the use of the public, that boating for pleasure is a sufficient test of navigability, and that a navigable stream may be used by the public for all recreational purposes. Secondly, since all of a right-of-way is included within the term "highway" regardless of whether it is actually used for highway purposes, defendant had a right to use the entire easement for highway purposes.

Counsel for Plaintiff-Respondent
Charles P. McNutt, Deputy District Attorney
1415 Truxtun Ave.
Bakersfield CA 93301
(805) 861-2421

Counsel for Defendant-Appellant
R. Frederick Fisher
Lillick, McHose & Charles
Two Embarcadero Center
San Francisco CA 94111
(415) 421-4600

Nairn, J. joined by Ferguson, Acting P.J. & Davis, J., sitting by appointment.

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Nairn, J.:

OPINION

Appeal from a judgment of conviction for trespassing by the Municipal Court, Bakersfield Judicial District. The Honorable Jack E. Lund, judge. Reversed.

On July 15, 1973, defendant and appellant (hereinafter, defendant) was observed by the security patrol of the Rio Bravo Ranch leaving the paved portion of Rancheria Road and proceed[ing] to use his kayak on the Kern River. Rancheria Road is a public highway in Kern County approximately five miles east of Bakersfield. It is constructed on a 60 foot easement granted to the County of Kern as a right of way for public highway purposes. At the point where Rancheria Road crosses the Kern River, the roadway narrows to 30 feet, so that 15 feet on each side of the bridge is unused by the county. The unused portion is fenced off from the traveled roadway, and has posted "no trespassing" signs. Defendant admitted using the unused county easement to reach the river.

It is unclear from the transcript whether defendant was arrested for using the unused portion of the easement for road purposes or whether he was arrested for refusing to leave the Kern River. However, in view of our opinion, this uncertainty is of little moment.

Two questions are presented on this appeal:

(1) Is the Kern River a navigable stream, and if so, did the defendant have the right to use his kayak on the river?

(2) May a member of the public use an unused portion of an easement deeded to the County of Kern for highway purposes?

(1) Is the Kern River navigable, and if so, did the defendant have the right to use his kayak on the river?

The modern tendency in several other states, as well as here, is to hold for use of the public any stream capable of being used for recreational purposes. (People v. Mack, 19 Cal. App. 3d 1040, 1046). Bohn v. Albertson, 107 Cal. App.2d 738, flatly held that boating for pleasure is a sufficient test of navigability.

In People v. Mack, supra, 1050, the court said:

The modern determinationsof the California courts, as well as those of several of the states, as to the test of navigability can well be restated as follows: members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor-propelled small craft.

The failure of the Legislature to include the Kern River in the list of navigable waters in Harbors and Navigation Code §§ 101-106 is of no consequence. Nor is the fact that the County of Kern may tax the river bed. (People v. Mack, supra) In Hitchings v. Del Rio Recreation and Park Dist., 55 Cal. App.2d 560, the court not only approved the Mack rationale, but extended it.

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It would appear to be an exercise in futility to pursue this question any further, since defendant Sweetser was boating on the river when he was arrested and cited. It hardly needs citation of authorities that the rule is that a navigable stream may be used by the public for boating, swimming, fishing, hunting and all recreational purposes. Hitchings v. Del Rio Recreation and Park Dist., supra; People v. Mack, supra; and Marks v. Whitney, 6 Cal. App. 3d 251, 259. The finding of the trial court that the Kern River is not navigable at the point in question must be reversed.

(2) May a member of the public use an unused portion of an easement deeded to the County of Kern for highway purposes?

Sections 1450 and 1480 of the Streets and Highway Code define the term "highway":

Section 1450: (a) Highway. The term "highway" includes all or any part of the entire width of right of way of a county highway, whether or not such entire area is actually used for highway purposes.

Section 1480: (a) Highway. The term "highway" includes all or any part of the entire width of right of way of a county highway, whether or not such entire area is actually used for highway purposes.

People v. Henderson, 85 Cal. App.2d 653, squarely held that the public had the right to use every part of the right of way at any time without interference. The Henderson court held:

Where the sole question is whether the maintenance of the structure or obstruction is inconsistent with the full enjoyment of the right of way by the public, the owner of the fee is deemed to possess no greater right than those who are strangers to the title.

Henderson, supra, 656. Henderson was cited with approval in In re Bodkin, 86 Cal. App.2d 208, 210. (See also Tucker v. Watkins, 251 Cal. App.2d 327, 331, Headnote 2).

Accordingly, we hold that the defendant Sweetser had a right to use the entire easement deeded to the County of Kern for highway purposes. In passing, we observe that a criminal matter is a poor vehicle to secure a determination of the navigability of a river or the right to use the entire easement granted to the County of Kern for highway purposes. Civil remedies are provided; i.e., an action to abate a nuisance (People v. Mack, supra) or an action for declaratory relief. (Hitchings v. Del Rio Park Recreation and Park Dist., supra). The matter is remanded to the trial court, with directions to dismiss the Complaint.


6 ELR 20784 | Environmental Law Reporter | copyright © 1976 | All rights reserved