Private Lake...State Water

texas john · Post by **texas john** » Tue Aug 25, 2009 11:28 am

Ok there is a lake close to me that is an amazing bass fishery. Just this year we have caught and released 1 11+ lber and many in the 5-8 range. This lake is located in a gated community however the dam that was built to create the lake abuts a main road that is patroled by CHP. There is a public access point at the road where many many people fish from the bank on a regular basis and where we would occasionally launch a little aluminum row boat and go fishing. On a trip earlier this year the security stopped us from launching and told us since we were not residents we could not launch a boat onto the lake. Being a land surveyor by trade I know the lakes water is from a state river and there for the water my boat is floating in is owned by the state. After this run in with security and us informing them of the laws they told us we could fish. About a month after this my Uncle was out on the lake one after noon when the head of the home owners association approached him with security, they verified the boat was currently registered and he was propperly licensed and procedeed to inform him that they were in the process of getting the county to pass an ordinance preventing people from launching their small boats/float tubes ect onto the lake. As always he was very curtiouse and continued fishing with out any problems. Now as a little back info, we never get out of the boat, never mess with anyones things ect, we just want to fish the lake. All the security people have told us they appreciate our information and how polite we always have been with them, we never really saw the need or reason to argue. The real reason this has become such a hot button issue with the home owners association is that for 30+ years they have been lying to their residents telling them and selling them on the idea that it is a private lake, when in fact the lake is state water. The home owners association is looking at huge revenue loses due to the $500.00 per boat they charge for lake use, even if the you own a home with a dock. Well back to present times, my Uncle went out on Wednesday last week and when he pulled up to take the boat out there were several signs up prohibiting anyone from swimming, launching of any boats tubes or other floatation devices due to a new county ordinance.....I am truly frustrated now that my local honey hole is off limits and according to the county I am not allowed on state water!! Anyone have any suggestions or ideas? I have contacted the county to get a copy of this "New Ordinance" with no responce! This lake is great and I hate to think of it being permanatly off limits.

Any ideas or suggestions would be greatly appreciated.

acm95301 · Post by **acm95301** » Tue Aug 25, 2009 11:39 am

I'm not an expert, but I have run into a similar experience with regard to riparian law. On The South Fork of American River fishermen and whitewater raft companies use the river. Technically the property lines go to the middle of the river, but they can't prohit use of the river as long as nobody lands.
However they could possibly prohibit access if they surrounded the lake. In fact they might infact be liable for accidents on the lake as well if they should for some reason grant access.

The first step in our "Free" country is to find the ordinences, and find why nobody knew it was happening. frequently county or city boards don't want opposition so they only mail out notices to direct adjacent propert owners or not at all. They are all a shady bunch as far as I'm concerned.

The second is to find out who really has the water rights...state or otherwise....for instance MID owns McClure.

Next make a stink...which starts with a complaint...they need to cite you. If security attempts to arrest you...then sue them for false imprisonment.

Lastly remember, we really live in a plutocracy.

JustinD · Post by **JustinD** » Tue Aug 25, 2009 11:43 am

I believe the water way has to navigatible from the point of origin (our water) by a vessel otherwise it is considered private. Otherwords if you can drive your boat from the river to the lake then its open season otherwise its theirs to do what they want. Don't quote me but read this law somewhere. E.G. is the lake in Disco....Totally river water but private.

texas john · Post by **texas john** » Tue Aug 25, 2009 11:47 am

The lake it self is 90% enclosed inside the gated community with exception to the area that abuts the main road. From what I understand the state owns the water and allows them to use the water for their lake. The water that runs out of the lake via a spillway continues down stream to a Army Corps lake that is open to the public. The big problem is the people who live there were told it is a private lake and do not understand why they have to pay $500.00 to put their boats in while people like me launch from the dam for free. I have had our little row boat inside the river opening where the water first enters the lake and can navigate a certain amount (not far) up river.

JustinD · Post by **JustinD** » Tue Aug 25, 2009 11:50 am

I have a feeling your involation but if its gone on this long keep going and set a presedence. I know that if a river floods and then subsides and a lake/oxbow is left and no longer accessible by boat it then becomes private and subject to the associations/owners regs........I used to be a cartographre and did some work on the Kings river near Fresno on this before and that is what i remember (a little). Offer to pay the $500 for access and see how it works.

rich mendoza · Post by **rich mendoza** » Tue Aug 25, 2009 12:56 pm

what county? and what ordinence #?

i say keep going till the COPS asks you to leave!

Andy Giannini · Post by **Andy Giannini** » Tue Aug 25, 2009 1:23 pm

Are you in California or Texas? I can answer the questions if you are in Ca.

If you enter from a public access, then you may navigate.

However, you cannot tresspass across land to get to a public waterway. You may land and go as high as mean high water, but not past that point. You can float in any marina, or in front of anyone's property, and or enchroachments like docks. For that matter you can float within the docks, but you cannot tie or get off on the docks.

What you are going to have to find out, is the one area really a public access, or have people just been using it as one?

And find out if it is legal to park there, or launch at all.

Do good on your research, before going before a judge.

A.G.

JustinD · Post by **JustinD** » Tue Aug 25, 2009 1:24 pm

How would i know.....I'm far from the POLICE......I just worked on mapping some water for a lawsuit by some farmres against the state......Expert opinion only but I remeber what the fight was bout and it suited this perfectly.....

texas john · Post by **texas john** » Tue Aug 25, 2009 1:31 pm

In Cali and they did threaten us earlier this year with having the Sherriffs to come out so we said ok call em...Then 5 min later they said they were to busy to come out.. and the code is

County Code Sec. G-IX 5.11

Exactly how it is written on the signs!

Andy Giannini · Post by **Andy Giannini** » Tue Aug 25, 2009 1:43 pm

You need to find out if that place is a public access, before touting the State Constitution before a judge.

This could get expensive, and the first judge might not agree with your position.

If its surrounded by private property, and the road through there is just an easement or ROW to operate a highway, or county road, you may be SOL. It probably does not include a recreational easement down to the water line, launch privledges etc.

.02 A.G.

If you really want to go to court to find out, I can provide some Ca. case history, judges decisions, and basic briefs regarding what constitutes a public access for fishing, and it addresses constitutional issues as well.

offduty · Post by **offduty** » Tue Aug 25, 2009 1:59 pm

Could you be talking about Canyon Lake in Riverside County that drains to Lake Elsinore? I work in there and have heard stories, I also think this sounds just like the place.
Rich

philip garcia · Post by **philip garcia** » Tue Aug 25, 2009 2:54 pm

the lake I'm sure you are reffering to is lake wildwood in penn valley. That is a great lake to fish and the people there are mostly snobs who don't want average people on thier lake. They pay alot to feel privilaged. I know the road you are talking about and it's only a couple of feet from the water literally. Talk to the county sheriff about it he's the only one who can enforce anything anyway. The lake enforcement are just rent a cops.

lowerider · Post by **lowerider** » Tue Aug 25, 2009 3:25 pm

Lake of the Pines??????????

acm95301 · Post by **acm95301** » Tue Aug 25, 2009 6:28 pm

One of the possible issues, would be parking at the "put in", so you might avoid part of the problem by dropping your boat off, then find legal non-posted parking.

If they can't control the water and they can't control the parking, they will have to try hard to find a reason to mess with you.

Down with the plutocracy hipocracy.

DeltaDan · Post by **DeltaDan** » Tue Aug 25, 2009 6:56 pm

texas john wrote:The lake it self is 90% enclosed inside the gated community with exception to the area that abuts the main road.

If you can find that other 10% with parking and public access - You are golden.

I have been run off of DBay next to the marina many a times in the years past by the security. Even though I was on the rocks below the low tide means, Parked on a public road - on Marina Road ....not even in the condo parking lots next to the water or even at the DBYC parking lot - on witch I as well had a pass for as a member from a sister sailing club.

It was a tricky situation .... All I can say is that I have been there, done that, kept fishing until they booted me away again, and have always been courtious. -- Most of the times I was able to rip my striper limits out in 5-30 minuets, throw them in trunk - and be home on Wednesday nights back in Antioch to wrap them in towels, put in the fridge and fillet the next morning.

The land laws themselves- I can not say if they would hold up in court. The condo's and the roads themselves are public access.

Now the rip/rap rocks and levee's are probably under the control of the DBay homeowners assoc. ~ And can be enforced by security calling into the local law enforcement.

I just never pushed it to the point of having the Sheriff called out to settle the matter personally and always politely left .. Then went to some other places where there were still unbuilt lots.

texas john · Post by **texas john** » Wed Aug 26, 2009 5:33 am

philip garcia wrote:the lake I'm sure you are reffering to is lake wildwood in penn valley. That is a great lake to fish and the people there are mostly snobs who don't want average people on thier lake. They pay alot to feel privilaged. I know the road you are talking about and it's only a couple of feet from the water literally. Talk to the county sheriff about it he's the only one who can enforce anything anyway. The lake enforcement are just rent a cops.

There is a public parking area and the community security has told us that the home owners associations owns the dam all the way to the roads guard rails. But they have lyed to us on many occasions. Once they asked us to take the boat out because it had not had a quaggma inspection. I asked them who does those inspections and they said they did......So I asked what did a quggma or zebra mussle look like, they had no clue. They also had signs posted prior to the ordinance signs that said Largemouth Bass catch and release only, beign a tournament guy I have no problem with that, these signs were made by the home owners association and had no merrit or legality.

YouHateIt · Post by **YouHateIt** » Wed Aug 26, 2009 2:04 pm

I'd keep fishing till I was arrested then fight them in court...YouHateIt

BIG-EARL · Post by **BIG-EARL** » Wed Aug 26, 2009 2:26 pm

GO OUT WITH A BANG LOAD THE BOAT WITH BEER AND HAVE ONE LAST GOOD TRIP ..... AND SET A EMPTY CAN ON EVERY DOCK..........

texas john · Post by **texas john** » Wed Aug 26, 2009 4:09 pm

I made 3 calls to the county today and one yesterday to attempt to get clarification on this ordinance with no return calls. I will try a new route tomorrow.

mark poulson · Post by **mark poulson** » Thu Aug 27, 2009 5:51 am

Contact your County Supervisor's office, and ask them about the new ordinance, and the lake in particular.
You could go down to the County offices, and ask to see the maps for the lake community. Those should show what's public and private.
Call first, tell them what you're looking for, and they should be able to tell you which office has the maps.
They're public records, so you should be able to look at them.

Rick K of Ca · Post by **Rick K of Ca** » Thu Aug 27, 2009 6:26 am

Sec. G-IX 5.11 Dam Spillway Restriction

It shall be unlawful for any person to swim within 100 feet of, or stand, walk or sit on the
spillway of Lake Wildwood Dam. (Ord. #1441, 7/14/87)

Ringer · Post by **Ringer** » Thu Aug 27, 2009 9:17 am

My bet is you are going to lose in court. I know at Pleasant here in AZ the marina actually leases the land below it from the county and they have a legal right to close off the water to the public. We all used to fish in there and now the Sherriffs have told us no can do. That lake is fed by the canal as well as natural river and they still have control which surprised me. I always thought any navigable waterway was public until this deal cropped up. If they own the area where you launch plus all the surrounding land then you definitely can be locked out. It doesn't seem right but I would hate to lose a court battle and get fined.

texas john · Post by **texas john** » Thu Aug 27, 2009 1:17 pm

Rick K of Ca wrote:Sec. G-IX 5.11 Dam Spillway Restriction

It shall be unlawful for any person to swim within 100 feet of, or stand, walk or sit on the
spillway of Lake Wildwood Dam. (Ord. #1441, 7/14/87)

So I can legally launch my boat according to this since I do not put in within 100' of the spillway

Andy Giannini · Post by **Andy Giannini** » Thu Aug 27, 2009 3:25 pm

As long as the land you are crossing from the roadway to the water is a public access. You cannot tresspass to get to that water.

The post from Ringer does not help in this Ca. instance.

In Ca. you may float wherever the river goes, regardless of the underlying property owner. The catch is you must enter from a public access and not tresspass to get to that river or water. (An example would be drag your boat over land to launch.)

Some islands flood during extreme events, and you may float your boat there, but the state changed things a bit regarding duckhunters who were having a blast. You can enter flooded islands, but you can no longer discharge a weapon.

Its a touchy subject filled with misinformation. Some dock owners think they own the river? Or the area surrounding it, which in fact they don't. The owner must have an encroachment permit to enchroach upon a public access, the waterway or river. The river was there first, and a public access the dock came later.

In closing, I am pro private property owner, and pro for angling access.

I think people get confused about what is right regarding this issue.

A.G.

texas john · Post by **texas john** » Thu Aug 27, 2009 4:05 pm

Andy I spoke with the county this afternoon and confirmed what Rick K posted, yes they finally returned my calls. So in this instance we are not violating any rules or laws, since we launch over 100' from the spillway. I will get a copy and carry it with me next time I go out on the lake. I appreciate everyones help!!!!

j10b · Post by **j10b** » Thu Aug 27, 2009 4:12 pm

texas john wrote:Andy I spoke with the county this afternoon and confirmed what Rick K posted, yes they finally returned my calls. So in this instance we are not violating any rules or laws, since we launch over 100' from the spillway. I will get a copy and carry it with me next time I go out on the lake. I appreciate everyones help!!!!

And keep your eye out for another ordinance and go fight it. Make sure you let it be known the HOA is trying to squeeze 500$ out of its people

mark poulson · Post by **mark poulson** » Fri Aug 28, 2009 5:22 am

texas john wrote:Andy I spoke with the county this afternoon and confirmed what Rick K posted, yes they finally returned my calls. So in this instance we are not violating any rules or laws, since we launch over 100' from the spillway. I will get a copy and carry it with me next time I go out on the lake. I appreciate everyones help!!!!

Give 'em hell!

texas john · Post by **texas john** » Fri Aug 28, 2009 6:00 am

We have always been super polite and very courtiouse to the security and the residence of this lake. In fact one time a lady wish fishing off of her dock and saw us catch 3 or 4 nice bass just off of her dock in the weeds and stopped us and asked what we were using cause her husband can never catch any fish out there. I showed he the Pepper Jig we were using, and even gave her one and told her where she could buy them at.

The politness with the security and managment people is DONE

. I will not be continuosly lied to by these people just so they can continue to make their residents feel good. They are ripping those people off and I will make a conscience effort to let those people know that. I harbor no ill will towards the residents just those who represent them and continue to feed them the lies. Im planning on going out this weekend, I will let you know how it goes!!

phill strader · Post by **phill strader** » Fri Aug 28, 2009 6:10 am

your getting some really good advice, and some really sh^$&^ advice. Private property is private property.....period. if it's public, it's public. You can not cross any amount of private property to get to public, and public property should not be confused with property that just appears to be vacant and/or "unused". concentrate part of your research on land ownership if that property you are launching your boat on is "owned", until you get permission, end of story.

phil strader

Ringer · Post by **Ringer** » Fri Aug 28, 2009 6:40 am

I used to own a private lake here in Phoenix. It was dug out to backfill a huge development and the dike and property were private and deeded. It was fed by the water table. Totally fenced and for sure private property. There are lakes all over here that were created using state canal water but were dug by the developer and are private. Was this a natural lake before the development? If so you are good to go IMO. If it was made by a developer you are toast.

Marc · Post by **Marc** » Fri Aug 28, 2009 7:11 am

A.G. gave you the correct advice, and I would follow it to the letter if I were you. I would also advise against making any scenes with the residents or with the local rent-a-cops. Nothing good will come from it. Just recognize that they are not attorneys or skilled professionals; while it appears to you they are "lying" they are more likely just uninformed or misinformed. You would be wiser to concentrate on making sure the method you use to access the lake is in fact legal (no trespassing violation, no homeland security violation since this is a dam, etc.) and have some documentation printed and in your pocket that you can leave with the lake residents, homeowner's association, and security when they approach you.

I would also have a discussion with the enforcement office responsible for that area in advance (sheriff's dept?) and show them your documentation and let them know what you experience from the locals.

Not having resided in California for a few years, I'm not aware if there are any current laws about harassing people in the pursuit of legal fishing or hunting; but I would suggest checking this out as well, and print that documentation. Then when you get threatened by the locals the next time counter that respectfully with this documentation and inform them that it is they who are actually violating the law.

Where I live in Washington State, I have had to use this tactic to aggressive dock owners who don't want me with 100 feet of their dock, and decide to throw rocks and other items to get me to leave. I tell the homeowner they are violating RCW 77.15.210 "Obstructing the taking of fish, shellfish, or wildlife - Penalty is a gross misdemeanorand or jail time." If the homeowner doesn't believe me, I then call the local enforcement and tell them the situation. Often I have to inform the law officer of the RCW, which they usually quickly check and find out it is real and enforceable, and then they intercede on my behalf.

Stick to the facts and leave the emotion at home.

ciao,
Marc

Jim Conlow Sr. · Post by **Jim Conlow Sr.** » Fri Aug 28, 2009 8:52 am

If I were you I would check into the "prescriptive Easement laws"

This law basicaly says that if you have been crossing over a piece of private property or if others have been crossing over for a period of 5 years that you have a prescriptive easment and that they cannot take you right to cross over or to go where you have been going during that 5 year period.

This is why railroad crossings have a little sign that says "Permission to pass may be revoked at any time"

I once gained hunting rights o a huge parcel of private land because I had been entering it through public land for a period of several years during Deer season only.

The owner was seriously upset that were hunting on his property and had me arrested by the local Sherrifs deputy. I beat him in court because I could prove my usage for a period in excess of five years.

I currently have a prescriptive easment on the property that my house sits on that was based on usage by owners back about a hundred years ago.

I am not an attorney so do your own research. Laws have a habit of being rewritten

Andy Giannini · Post by **Andy Giannini** » Fri Aug 28, 2009 10:39 am

Keep in mind, "prescriptive use" does not apply regarding public entities or agencies.

Prescriptive use usually applies to private property owners.

And its a tough arguement with a judge.

Pretty much, the judges and law enforcement represent the property owners, or constituents. Not some guy who drove 200 miles to camp on somebody's property or whatever.

Its just a thing to keep in mind.

.02 A.G.

phill strader · Post by **phill strader** » Fri Aug 28, 2009 11:09 am

Jim, if I jump the fence into your yard every summer, at night when your asleep, to pick the apples off of your apple tree, does it mean that after 5 years the apple tree is mine...or at the very least, I can come and pick apples when ever I want?

phil strader

Jim Conlow Sr. · Post by **Jim Conlow Sr.** » Fri Aug 28, 2009 12:00 pm

You would be stealing my apples, which of course is against the law.

back in about 1956 we were getting started laying out on a corner lot to build a house.there was a foot path diagonal across the lot. A retired attorney claimed that he had a prescriptive easment on the property because he had been walking on the path for over for a period of in excess of five years.

My boss laughed in his face but he didnt laugh when the judge awarded the old man $500. when the whole lot had been purchased for $1500.

In another situation we had to move the location of a proposed 3 story office building location on a lot in Walnut creek because the neighbor had been landscaping on 3 feet of the property that we were going to build on. The building and the parking lot had to be totally revised. That one was in 1979

My suggsetion is that he do the research on Google and then make a decision about what a prescriptive easment is.

Andy Giannini · Post by **Andy Giannini** » Fri Aug 28, 2009 12:20 pm

The answer would be no, because Jim had fenced his property, and by jumping it, you were clearly tresspassing.

Now had he left it unfenced, and it showed no signs of farming practice, it might become a different issue.

Not trying to be smart aleck, just trying to clarify things.

And I would agree sometimes prescriptive use just sounds like a bad deal.

A.G.

Jim Conlow Sr. · Post by **Jim Conlow Sr.** » Fri Aug 28, 2009 12:31 pm

HomeNewswireLawJobsCLE CenterLawCatalogOur SitesAdvertise

Enter a Legal Term:

all wordsany wordsphrase Search the Definitions:

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I put legal definitions on Google and this is what I got

prescriptive easement
n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.

See also: easement prescription

Jim

phill strader · Post by **phill strader** » Sat Aug 29, 2009 5:38 am

Andy, you are right to an extent....but fence or no fence it is trespassing, and even with no fence, I guarantee Jim doesn't want me coming in his yard and taking his apples... must be posted to be enforced, I also guarantee I know it's not my yard or apple tree.. being fenced it would be trespassing in an enclosed area, a bit more enforceable....it's this way in many places other than California anyway......bottom line is there is right and wrong, private and public. If it's public ground, you've got no issues. If it's private, and you didn't know it, somebody points out the fact you are trespassing, it still is no issue...you don't go back...If it's private, and you know it, and willingly continue to use it, your breaking the law...don't go around the system, knock the **** off!
Jim, that apple that I "stole" from your yard, grew from the tree you planted. That deer which you stole from the rancher that you were trespassing on, grew from the pasture and grass the farmer was raising, possibly for livestock...you trespassed, knowingly and willingly, you stole, and then you forced the land owner into a prescriptive easement....which I guarantee cost the landowner legal costs if not court costs as well.....and you think this is the way to get what you want???? Jim I like you, but don't EVER move close to me!

phil strader

texas john · Post by **texas john** » Sat Aug 29, 2009 10:26 am

In this case the local rent a cops have told us that we are allowed to fish in this area from the bank only, their big issue is the boat. I spoke with the county yesterday who provided me with a copy of the county ordinances regarding the lake and use of the lake in question. If it were in face a private lake with private water why does the county establish the rules and regulations for the use of the water. The county informed me that legally they cannot keep us off the water.

Thanks again for all your help!!!

Andy Giannini · Post by **Andy Giannini** » Sat Aug 29, 2009 11:25 am

I would get the info from the county in print, so you can take it to court if need be. Even if it is in the form of a letter to you.

Interesting digging around to find out what the real deal is huh?

On a more personal level, I assume everything is private property, unless there is a big fricken sign that says, "Public Fishing Access".

Or State park, National forest whatever.

A little goofy about it. There is a bait shop around the corner near my house. Routinely, I walk past it to get to ACE hardware. People every day cut the corner to get across the lot. Even at the urging or ridicule of employees, I walk all the way around on the sidewalk.

Because of my position at work, I cannot appear to have disregard for other people's property. Even if permission is granted, I can't be cutting corners in public. It might give the wrong impression right out there by the highway, with many locals whizzing past. Never mind the bait shop insurance, should I get run over while not actually patronizing the biz.

Even if it means walking a bit farther, or looking a bit silly.

A.G.

texas john · Post by **texas john** » Sat Aug 29, 2009 2:00 pm

Here is a google earth picture of the area in question.

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