Climbing on Mt. Baldy

California Standard: State Constitutional Right, Recreational Standard, and Public Trust Easements

“The public's right of access to navigable streams is a constitutional right.” (People ex rel. Younger v. County of El Dorado (3d Dist. 1979) 96 Cal.App.3d
403, 406 [157 Cal.Rptr. 815, 817]) citing California Const., art. X, s. 4 and Marks v. Whitney ((1971) 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374.) The
California Constitution states: “ No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet,
estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose,
nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this
provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.” (Cal. Const., art. X, s. 4.) Case law
applying this constitutional provision confirms the public right of passage, in a lawful manner, over waters usable only for small-craft recreational boating,
irrespective of the ownership of the water bed. (Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 258 [193 Cal.Rptr. 336];
Lechuza Villas West v. California Coastal Commission (1997) 60 Cal.App.4th 218, 244 [70 Cal.Rptr.2d 399], cert. denied 525 U.S. 868.)
“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.” (People ex rel. Baker v. Mack (3d Dist.1971) 19
Cal.App.3d 1040, 1050 [97 Cal.Rptr. 448, 454].) This includes waterways capable of being navigated only by kayak. (People v. Sweetser (5P
thP Dist.
1977) 72 Cal.App.3d 278, 283 [140 Cal.Rptr. 82].) Commercial use of a waterway is not required as “a waterway usable only for pleasure boating is
nevertheless a navigable waterway and protected by the public trust.” (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 435 n.17 [189
Cal.Rptr. 346, 658 P.2d 709].) citing People ex rel. Younger v. County of El Dorado (3d Dist. 1979) 96 Cal.App.3d 403 [157 Cal.Rptr. 815, 817] and
People ex rel. Baker v. Mack (3d Dist.1971) 19 Cal.App.3d 1040 [97 Cal.Rptr. 448, 454].)
There are limits to what waterways can be considered legally navigable under the State public trust and navigational easement standards. Though a
waterway need not be floatable year-round for it to be navigable, but it must be for more than a few days in the rainy season and more than infrequent or
brief periods of high or flood waters (Hitching v. Del Rio Woods Recreation & Parks District (1P
stP Dist. 1976) 55 Cal.App.3d 560, 569-570 [127 Cal.Rptr.
830].) However, the public may use long-term flood and overflow waters if they are navigable. (Bohn v. Albertson (1951) 107 Cal.App.2d 738). Lands
flooded by navigable waters are subject to the public’s right to fish and pass over them. (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 546
[162 Cal. Rptr. 327, 606P.2d 362].)
The State of California holds title to the navigable waterways and the land beneath them within its borders as a trustee for the public. (Gaf v. San Diego
Unified Port Dist. (1992) 7 Cal.App.4th 1224, 1228 [9 Cal.Rptr2d 530]; Colberg Inc. v. State of California ex rel. Dept. of Public Wks. (1967) 67 Cal.2d
408, 416 [62 Cal.Rptr. 401, 432 P.2d 3].) Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have
been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use
the bottom of the navigable waters for anchoring, standing, or other purposes. (Marks v. Whitney (1971) 6 Cal.3d 251, 259 [491 P.2d 374, 380, 98
Cal.Rptr. 790, 796].); Bohn v. Albertson (1951) 107 Cal.App.2d 738, [238 P.2d 128]; Forestier v. Johnson (1912) 164 Cal. 24, [127 P. 156].) “In this
state the public has a right to use for boating, swimming, fishing, hunting and all other recreation purposes, any part of a river that can be navigated by
small recreational or pleasure boats, even though the river bed is privately owned.” (People v. Sweetser (5P
thP Dist. 1977) 72 Cal.App.3d 278, 283 [140
Cal.Rptr. 82].)
“It is well settled that the state has fee title to such portion of any navigable river within its boundaries as lies beneath the low-water mark. It is equally
well established that although abutting landowners own the land between high- and low-water marks, their ownership is subject to a public trust for T
California Standard: State Constitutional Right, Recreational Standard, and Public Trust Easements (cont’d)
purposes such as navigation, fishing, and recreation.” (Bess v. County of Humboldt (1992) 3 Cal.App.4P
thP 1544, 1549 [5 Cal.Rptr 2d 399]; State v.
Superior Court (Lyon) (1981) 29 Cal.3d 210, 226-233 [625 P.2d 239, 172 Cal.Rptr. 696], cert. denied, 454 U.S. 865). The public clearly has the right to
use the bed of a waterway navigable under State standards to its high mark even at times of low water. The permissible range of public uses is broader
than navigation, commerce, and fishing from the water and includes the right to hunt, bathe or swim from the shore below the mean high water mark.
The public’s rights are not confined to the waters alone. Lyon, at 229-230.
Regardless of the ownership of the bed of a navigable waterway, be it State property or privately owned, the public has the right to use the bed of the
waterway up to the mean high water mark for purposes such as navigation, fishing, and recreation.