6 ELR 20363 | Environmental Law Reporter | copyright © 1976 | All rights reserved

Hitchings v. Del Rio Wood Recreation and Park District

1 Civil No. 35733 (Cal. Ct. App. February 23, 1976)

ELR Digest

Plaintiffs appeal a trial court decision that an 11-mile portion of the Russian River is non-navigable, and that they therefore do not have a right to free and unobstructed boating and recreational activities on the waterway. The lower court found that in its natural state, prior to installation of an Army Corps of Engineers dam, the stretch of river in question had little or no water flow during the late summer and early fall. Because it was not navigable in fact throughout the year in its natural state, the lower court concluded, the river section is not navigable in law.

Although the evidence was sufficient to support the finding of non-navigability in fact at certain times of the year prior to construction of the dam, the lower court misconstrued the guiding legal principles under which this finding must be applied. For purposes of public use of waters, the state may adopt different and less stringent tests of navigability than the federal definitions. Fox River Co. v. R.R. Comm'n, 274 U.S. 651. In California, if a stream is navigable under the state definition, then "a public right of navigation exists. . . ." Cal. Civ. Code § 3749. Numerous federal and state courts have said that navigability in law is not dependent on navigability in fact at all times or all seasons, nor on continuity of use or capacity for use. This rule is logical and persuasive, and in view of California's policy of unimpeded public use of navigable waters, must be considered part of the state definition of navigability expressed in People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040.

The duration of navigability in fact required to make a stream navigable in law remains a factual question in each case, and depends on the characteristics of the stream and its suitability for public use. This section of the Russian River is navigable in fact for approximately nine months every year, and since this is a sufficient period to make it suitable, useful and valuable as a public recreational highway for most of the year, it is navigable in law. The lower court's conclusion as to the stream's non-navigability must therefore be reversed.

It is thus not necessary for this court to consider either the issue of natural navigability versus navigability in fact only with improvements, or the further questions raised by plaintiffs concerning public navigational rights based on custom, implied dedication, and prescription. Likewise, the court expresses no opinion on the title to the river bed since ownership of the bed is not determinative of public navigational rights, nor vice-versa. Forestier v. Johnson, 164 Cal. 24.

While the trial court's judgment as to non-navigability must be overturned, plaintiffs' rights in the use of defendant Park District's property bordering the river are adequately protected by the lower court's decision that as members of the public, plaintiffs do have the right to use the district's property subject to reasonable regulations as to time, place and manner or use. Under its enabling statutes, the district has authority to make and enforce such rules, and until evidence to the contrary is presented it must be assumed that they will give due regard to the public navigational easement. This portion of the lower court's judgment must therefore be affirmed, as must its denial of preliminary injunctive relief and its retention of jurisdiction until the district issues regulations governing public use of its property.

The full text of this opinion is available from ELR (16 pp. $2.00, ELR Order No. C-1031).

Counsel for Plaintiffs-Appellants
Lillick, McHose & Charles
Two Embarcadero Center
San Francisco CA 94111
(415) 421-4600

Passalacqua & Mazzoni
150 Matheson Street
Healdsburg CA 95448
(707) 433-3363

Counsel for Defendants-Appellees
Evelle J. Younger, Attorney General
6000 State Building
San Francisco CA 94102
(415) 557-2244

Geary, Geary, Shea & Pawson
37 Old Courthouse Square
Santa Rosa CA 95404
(707) 545-1660

Caldecott, J., for himself, Christian & Emerson, JJ.


6 ELR 20363 | Environmental Law Reporter | copyright © 1976 | All rights reserved