People v. Sweetser

5 Crim No. 2978 (Cal. Ct. App. 5th Dist. July 29, 1977)

ELR Digest

Upholding the Appellate Department's reversal of the Municipal Court, 6 ELR 20784, the California Court of Appeals holds that a kayaker who used a public easement for access to a navigable river did not commit criminal trespass against the landowner. In 1940, the predecessor in title to the landowner, George Nickel, conveyed a 60-foot easement to Kern County traversing Nickel's ranch and crossing the Kern River. At the river, the road on the easement narrows to 30 feet and the 15-foot strips on either side of the road are fenced and posted with "no trespassing" signs. Appellant was seen crossing under the fence and kayaking in the river by one of Nickel's security guards. Appellant was convicted in Municipal Court of criminal trespass, but the Appellate Department of the Superior Court of Kern County reversed. 6 ELR 20784.

Appellant was not trespassing while he was kayaking on the river. The public has a right to recreational use of navigable rivers, even though the riverbed is privately owned. Hitchings v. Del Rio Woods Recreation & Park Dist., 55 Cal. App. 3d 560, 127 Cal. Rptr. 830, 6 ELR 20363 (1976). It is also undisputed that appellant was walking within the perimeter of a county easement. An easement that intersects a river carries with it access to the river as an incident of highway use. 39 AM. JUR. 2D, Highway, Streets, and Bridges § 256, p. 644 (1968).

Nonetheless, the public's right to use highways is subject to reasonable regulations imposed by counties on county highways. Acosta v. County of Los Angeles, 56 Cal. 2d 208 (1961). But the people did not meet their burden in this case of proving that appellant invaded the landowner's exclusive right of possession. One who grants a public easement over his land possesses no greater right with respect to travel than does the general public. Santa Barbara v. More, 175 Cal. 6 (1917). The people did not show who fenced the easement; therefore, appellant at most committed a trespass against the county on an easement that had not been opened for public travel.

Conviction reversed.

The full text of this opinion is available from ELR (8 pp. $1.00, ELR Order No. C-1129).

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

Counsel for Plaintiff-Respondent
Albert M. Leddy, District Attorney; Stephen M. Tanzer, Deputy District Attorney
1415 Truxum Ave., Bakersfield CA 93301
(805) 861-2421

Garano, J., joined by Brown, P.J., & Frason, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]