Hitchings v. Del Rio Woods Recreation & Park Dist.

• Decision Date: 23 February 1976
• Citation: 55 Cal.App.3d 560,127 Cal.Rptr. 830
• Court: California Court of Appeals Court of Appeals
• Parties: , 6 Envtl. L. Rep. 20,363 William HITCHINGS et al., Plaintiffs, Cross-Defendants and Appellants, v. DEL RIO WOODS RECREATION AND PARK DISTRICT, a Public Agency, et al., Defendants, Cross-Complainants and Respondents. Civ. 35733.

Page 830

127 Cal.Rptr. 830

55 Cal.App.3d 560, 6 Envtl. L. Rep. 20,363

William HITCHINGS et al., Plaintiffs, Cross-Defendants and Appellants, v. DEL RIO WOODS RECREATION AND PARK DISTRICT, a Public Agency, et al., Defendants, Cross-Complainants and Respondents.

Civ. 35733.

Court of Appeal, First District, Division 4, California.

Feb. 23, 1976.

Lillick, McHose & Charles, R. Frederic Fisher, Barbara B. Buggert, San Francisco, for plaintiffs-appellants.

Passalacqua & Mazzoni, Francis M. Passalocqua, Healdsburg, for defendants-respondents. Evelle J. Younger, Atty. Gen., Jay L. Shavelson, Asst. Atty., Gen., John Briscoe, Deputy Atty. Gen., San Francisco, amicus curiae in support of plaintiffs-appellants.

Geary, Geary, Shea & Pawson, Michael F. O'Donnell, Santa Rosa, amicus curiae in support of defendants-respondents.

CALDECOTT, Presiding Justice.

The question presented by this appeal is whether an 11-mile portion of the Russian River is a navigable stream and thus open to the public for boating and recreational activities. We conclude that it is.

Plaintiffs-appellants are persons with varied interests who have joined in this action to protect their right to free and unobstructed navigation on this part of the river. Defendants-respondents are Del Rio Woods Recreation and Park District (the District), a public entity formed pursuant to Public Resources Code section 5780 et seq., and Del Rio Homeowners Association (homeowners), a nonprofit corporation consisting of property owners within the boundaries of the District. The District owns two properties involved in this dispute, Del Rio Beach and a parking lot. The parking lot is located between the river and a public road.

Appellants sought declaratory relief as to the navigability of the Russian River passing through the District and public rights of access to the properties owned by the District. The trial court declared the river section involved to be non-navigable under theories of navigability, implied dedication, prescription, or custom. The court held that appellants have no right to navigate boats on the river. The judgment further declared that appellants, as members of the public, do have rights to use District property 'for boating, portage, access to or egress from the River, boat landing, launching and car parking, based on the public ownership and park status of such property, subject to the District's right as a government entity reasonably to regulate the time, place and manner of such public uses of such property.'

Three crucial findings were made by the court concerning navigability in fact of the river over the stretch in question. These were: '9. In its natural state, prior to installation of a U.S. Army Corps of Engineers flood control project, which stores winter flood waters and releases them in the summer and autumn, and prior to projects which artificially divert Eel River basin waters into the Russian River, so that about 10% Of the total annual flow of the Russian River consists of Eel River waters, the Russian River as it passes from the Alexander Valley Bridge through the District's boundaries often had little or no water flow during the late summer and early fall months, and hence was not navigable in fact during those months. 10. The Russian River from the Alexander Valley Bridge to the downstream boundary of the District is periodically navigable in fact and is navigated at various times throughout the year by small flat-bottomed power boats, rowboats, kayaks and canoes. However, this small boat navigation would not ordinarily be possible during the late summer and early fall months in the absence of the navigational improvements referred to in the prior finding and by virtue of the damming of the stream by the District. Winter and early spring use is primarily and occasionally by fishermen. From late spring to early fall the primary boating use is for recreational boating. During winter/spring high water flow, the River has the capacity to float and during floods from time to time does float stray logs, but not on a commercial log floating basis. 11. Canoes were rented during the summer at Del Rio Beach in the late 1920's and 1930's. However, that was subsequent to the creation of Lake Pillsbury reservoir above Scott Dam in or about 1926. From this the court concludes that the River within the District's boundaries did not become navigable in fact as above described basis until after about 1926.' (Emphasis added.)

The court thus found that, (a) in its natural condition, prior to certain improvements in the early part of this century, the river section at issue was navigable in fact except 'often . . . during the late summer and early fall months'; and (b) the river section is currently navigable in fact throughout the year, though during the late summer and early fall this is only true because of the artificial improvements. On the basis of its findings, the court concluded that the river section is not 'navigable in law' because in its natural condition it was often not navigable in fact during late summer and early fall months.

I The Finding of Non-navigability In Fact During Certain Months Prior To 1926 Is Supported By Substantial Evidence

The sole evidentiary challenge by appellants concerns the court's finding that the river was not navigable in fact during late summer and early fall prior to the installation of upstream dams, reservoirs, and diversion works in or about 1926.

As both parties and the court below correctly observed, navigability is essentially a question of fact, and must in each case be determined on the factual circumstances of the particular waterway. (Churchill Co. v. Kingsbury, 178 Cal. 554, 558, 174 P. 329; Bohn v. Albertson, 107 Cal.App.2d 738, 742, 238 P.2d 128.) 'Those rivers must be regarded as public navigable rivers in law which are navigable in fact.' (The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999; Bohn v. Albertson, supra.) This is the American rule, and is apparently applied uniformly throughout the country. However, as will be seen below, 'to call it a fact cannot obscure the diverse elements that enter into the application of the legal tests as to navigability.' (U.S. v. Appalachian Power Co., 311 U.S. 377, 405, 61 S.Ct. 291, 298, 85 L.Ed. 243.)

The finding concerning non-navigability at certain times prior to the artificial improvements must be tested under the oftrepeated rules that the 'reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact,' (Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 166, 479 P.2d 362, 366), and the power of the appellate court 'begins and ends with a determination as to whether there is Any substantial evidence to support' the findings. (Simon v. Simon, 260 Cal.App.2d 626, 631, 67 Cal.Rptr. 323.)

The evidence presented was sufficient to support the finding. The statistical evidence consisted of streamflow data from December 1910 to August 1913, taken at a gauge about five miles upstream of the river section in question. These records indicated minimal or zero flow during late summer and early autumn months. Only one measurement was introduced concerning the precise area at issue, and that showed a low flow in August 1911. One expert witness testified that, but for the artificial improvements, the river would be virtually dry from August to October in an average year. A second witness stated that United States Geological Survey records would show the river was dry at certain times prior to the improvements.

Appellant argues that because (a) the streamflow statistics do not relate to the precise section of the river in question here, and (b) the statistics cover such a short period in time, they are inadequate as a matter of law to support the finding, as there was no evidence that they represented normal natural streamflow in the area in issue. However, no contrary testimony was presented as to the time period involved. Based upon the foregoing evidence and reasonable inferences therefrom, we are unable to say that the evidence was insufficient to support the finding of the court below.

II A Stream Need Not Be Navigable In Fact In All Seasons Or Throughout The Year To Be Navigable In Law

Appellants' primary challenge concerns the court's conclusion that the river is not 'navigable in law.' This attack is focused on two contentions: navigability in law does not require navigability in fact Throughout the year, and navigability in law does not require navigability in fact in unimproved Natural condition.

As noted earlier, navigability is primarily a factual question, and each case must therefore turn on the characteristics of the particular stream. However, the court below applied an incorrect legal test of navigability to the facts it found, and therefore, reached an incorrect legal conclusion.

The historical background of the legal definitions of navigability has been explored elsewhere and need not be repeated here. (See The Daniel Ball, supra, 77 U.S. at p. 563, 19 L.Ed. 999; People Ex. Rel. Baker v. Mack, 19 Cal.App.3d 1040, 1045, 97 Cal.Rptr. 448.) Unfortunately, there has been some confusion over the years as to the applicable definition of the term, as it has different meanings dependent upon the problem under consideration. Briefly, these may be stated as follows:

Two federal definitions exist. The first, utilized for commerce clause purposes, is expressed in U.S. v. Appalachian Power Co., supra: rivers are navigable in law which are, in fact, used or susceptible of being used in their natural condition, or with reasonable improvements, for purposes of trade and commerce. (311 U.S. at pp. 406--409, 61 S.Ct. 291, citing The Daniel Ball, supra; The Montello, 87 U.S. 430, 22 L.Ed. 391; Rochester Gas & Electric Corp. v. Federal Power Com'n, 2 Cir., 344 F.2d 594, 595--596, cert. den., 382 U.S. 832, 86 S.Ct. 72, 15 L.Ed.2d 75.) Substantially, the same...