"Stop Fishing Or I'll Call the Sheriff"-Private Property Mt Trout Stream?

[Skyler]

The whole point of me posting that amendment was to point out that you are NOT trespassing if it contains state fish. Private property or not, the Weesha club has a legal obligation to allow access to that stretch of river, as per Article 1, Section 25. Constitutional law supersedes statutory law.

As for the navigability issue, SAR has been classified as navigable under federal standards. There were some guys awhile back who kayaked it, just for this purpose:

http://www.sierraphotography.com/cre...santaana01.htm

The criteria for a navigable stream is broader than you may think...

"The federal test of navigability is not a technical test. There are no measurements of river width, depth, flow, or steepness involved. The test is simply whether the river is usable as a route by the public, even in small craft such as canoes, kayaks, and rafts. Such a river is legally navigable even if it contains big rapids, waterfalls, and other obstructions at which boaters get out, walk around, then re-enter the water."



EDIT: RTG, I know the creek where Ghettobasser was confronted. It is not SAR, but a very small drainage. This stream is NOT navigable by any standard (ankle deep in many spots), and does not contain state stocked fish. The houses he speaks of are not lease cabins, but permanent homes that are grandfathered in. But it is still on NF property. Any thoughts?

[RTG]

Skyler, trust me on this one. If you are walking the banks, or standing on the stream channel "bottom" of Weesha's property, you are trespassing. I'd like to see someone navigate the SAR in that general vicinity with any kind of craft. It can't be done. You posted previously that "no law shall ever be passed making it a crime for the people to enter upon the public lands within this State for the purpose of fishing in any water containing fish that have been planted therein by the State". The key word there is "public" lands. Not private lands.
The government, at any level, cannot grant "trespass" rights to the public onto private property, whether the state stocks it with fish or not. I am not a member of the Weesha Club, nor do I have any personal interest in it. I was just using them as an example of trespass issues, regarding fishing. I just don't want to see guys get in trouble, because believe me on this; if you trespass there and are contacted by a property owner, he will ask you to move down by the bridge and off of their property. If you don't, he'll call SBSO or DFG, or both.
If you put yourself in their shoes it's not hard to have some compassion. You wouldn't want anybody trespassing on your property, and neither do they.
If you can float over the channel in a boat, canoe, kayak, float tube, or whatever, you're good to go. If you are on the banks or standing in the water with your feet on the bottom of the channel-you're trespassing. It's as simple as that.

[Skyler]

You fail to realize that the Weesha club does not own the stream bed. The river in its entirety is classified as a water of the state, which is a public land. Therefore section 25 does apply. And whether you deem the river navigable or not doesn't change the fact that it has been classified as such. You have free access over private property on a navigable water anywhere below the high water line. This includes the steam bed. This is according to federal law.

[Skyler]

Btw, it is obvious that you aren't reading any of the resources I linked. You stated that the river can't be navigated in that vicinity, AFTER I linked a trip report that gives technical details of exactly such a feat. Please read the following...
http://www.sierraphotography.com/tripreports/weesha.htm

[Skyler]

Here is code to further disprove ownership of said streambed:

California Civil Code, Section 830,


Section Eight Hundred and Thirty. Except where the grant
under which the land is held indicates a different intent, the owner
of the upland, when it borders on tide water, takes to ordinary
high-water mark; when it borders upon a navigable lake or stream,
where there is no tide, the owner takes to the edge of the lake or
stream, at low-water mark; when it borders upon any other water, the
owner takes to the middle of the lake or stream.

And if that wasn't clear enough, this spells it out nicely:

CALIFORNIA CONSTITUTION
ARTICLE 10 WATER


SEC. 4. 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.


And of course, no legal argument would be complete without some case law to back it:

In 1897, the California Supreme Court stated: "To the extent that waters are the common
passageway for fish, although flowing over lands entirely subject to private ownership, they are
deemed; for such purposes, public waters..." People v. Truckee Lumber Co., 116 Cal. 397, 401
(1897). -

“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 (5PthP 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].)

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]"


And finally, here it is from the horse's mouth. The California Department of Conservation:

http://www.conservation.ca.gov/dlrp/...stDoctrine.pdf

[DarkShadow]

Skyler,

You seemed well versed in the law.

I have a court appearance to answer to a pesky poaching charge where the authorities claim I kept a Black Sea Bass and made some killer tacos from it. I thought the thing was a big calico, to tell you the truth.

Can you assist in my defense? There's a case of PowerBait™ for ya if you get the charge thrown out.

We can claim "Navigable Waterways" or "Stand Your Ground" or something to the effect.


--------------------------------------------------------------------------------------------------------------------
Dark "Keep Everything I Catch" Shadow
Brigadier Sergeant at Arms
BUCKET BRIGADE REPRESENT!!!



www.bucketbrigadeer.com
Chasing stocking trux and bustin capz. That's how we roll!
http://fishingnetwork.net/forum4/group.php?groupid=32

[Skyler]

Skyler,

You seemed well versed in the law.

I have a court appearance to answer to a pesky poaching charge where the authorities claim I kept a Black Sea Bass and made some killer tacos from it. I thought the thing was a big calico, to tell you the truth.

Can you assist in my defense? There's a case of PowerBait™ for ya if you get the charge thrown out.

We can claim "Navigable Waterways" or "Stand Your Ground" or something to the effect.


--------------------------------------------------------------------------------------------------------------------
Dark "Keep Everything I Catch" Shadow
Brigadier Sergeant at Arms
BUCKET BRIGADE REPRESENT!!!



www.bucketbrigadeer.com
Chasing stocking trux and bustin capz. That's how we roll!
http://fishingnetwork.net/forum4/group.php?groupid=32

Did they see you land it? If not just them it was caught in international waters and is exempt from bag and size limits, he he he. Now about that Powerbait...

__________________________________________________ __________________________________________________ ____
Skyler (5 rods) McConahy
Brigadier General
BUCKET BRIGADE REPRESENT!!!



www.bucketbrigadeer.com
Chasing stocking trux and bustin capz. That's how we roll!
http://fishingnetwork.net/forum4/group.php?groupid=32

[RTG]

Hey, no problem, if that's how you interpret it. Just bring along a copy of all the laws you researched for when you have to explain it to the "S-O". You see, Weesha property extends across the river, so the stream bottom is their's. And again, we all know how deep the SAR is. You can't navigate it.
And I know you were having a little fun with the black sea bass thing, but claiming you caught it in international waters ain't gonna fly. You have to have a written declaration for it if that was the case. You cannot possess something that is illegal to possess, no matter how you got it. DarkShadow would just be best off to tell the court the truth, that he mistook it for another species that is legal to possess.
Good luck out there and good fishin'!

[fishinarteest]

Skyler,

You seemed well versed in the law.

I have a court appearance to answer to a pesky poaching charge where the authorities claim I kept a Black Sea Bass and made some killer tacos from it. I thought the thing was a big calico, to tell you the truth.

Can you assist in my defense? There's a case of PowerBait™ for ya if you get the charge thrown out.

We can claim "Navigable Waterways" or "Stand Your Ground" or something to the effect.


--------------------------------------------------------------------------------------------------------------------
Dark "Keep Everything I Catch" Shadow
Brigadier Sergeant at Arms
BUCKET BRIGADE REPRESENT!!!



www.bucketbrigadeer.com
Chasing stocking trux and bustin capz. That's how we roll!
http://fishingnetwork.net/forum4/group.php?groupid=32

Just tell em it was eaten by a (insert name of fish that can be legally kept here) and you found it inside the other fish when you got home, so you did the honorable thing and ate it. Something similar worked for me when i was keeping more than my limit of trout up north. i stuck them in the mouth of a big striper i caught(netted) off the lake. But oddly enough in the end they didn't buy my story(guess they could see the trout heads sticking out) and i went to court and was thrown in jail until I "liberated" myself. Its amazing what you can do with a metal stringer and 12 bottles of powerbait hehehe.
-------------------------------------------------------------------------
Fishin"2limits"arteest
Brigadier Private first class
BUCKET BRIGADE REPRESENT!!!



www.bucketbrigadeer.com
Chasing stocking trux and bustin capz. That's how we roll!
http://fishingnetwork.net/forum4/group.php?groupid=32[/QUOTE]

[Skyler]

Hey, no problem, if that's how you interpret it. Just bring along a copy of all the laws you researched for when you have to explain it to the "S-O". You see, Weesha property extends across the river, so the stream bottom is their's. And again, we all know how deep the SAR is. You can't navigate it.
And I know you were having a little fun with the black sea bass thing, but claiming you caught it in international waters ain't gonna fly. You have to have a written declaration for it if that was the case. You cannot possess something that is illegal to possess, no matter how you got it. DarkShadow would just be best off to tell the court the truth, that he mistook it for another species that is legal to possess.
Good luck out there and good fishin'!

I do keep copies of various laws on me at all times when fishing streams, due to people thinking they own the river. And it has always served me well. As for it not being navigable, come on, I actually gave you proof that it has been successfully navigated complete with a trip report, and you still want to argue? Do you kayak at all? I do, and that river is definitely navigable with a shallow draft whitewater kayak.

But for argument's sake, let's say it ISN'T navigable. The following would still apply:

"To the extent that waters are the common passageway for fish, although flowing over lands entirely subject to private ownership, they are deemed; for such purposes, public waters..." People v. Truckee Lumber Co., 116 Cal. 397, 401
(1897).

Section 25. The people shall have the right to fish upon and from
the public lands of the State and in the waters thereof, excepting
upon lands set aside for fish hatcheries, and no land owned by the
State shall ever be sold or transferred without reserving in the
people the absolute right to fish thereupon; and no law shall ever be
passed making it a crime for the people to enter upon the public
lands within this State for the purpose of fishing in any water
containing fish that have been planted therein by the State;
provided, that the legislature may by statute, provide for the season
when and the conditions under which the different species of fish
may be taken.

I have cited numerous laws and constitutional rights to back my argument. You continue to simply say "you can't do that." So I am done here.