Legal Issues: Streams on Private Property

[Kaonohi]

I recently mentioned in another thread that streams, or stream beds, are legally accessible to citizens even if they bisect private property! I thought again and figured I had better check this out.

I was told that by a worker who was tramping up my stream some years ago. He identified himself as from the BWS, and said he was checking flow levels.

To check this out I contacted BWS, and they claim they have NO jurisdiction over streams, and don't know the answer, they even checked it out with a legislator for me (thank you very much) who said he has heard both sides, and doesn't know. (Call a lawyer... hah!)

I figured with all the brains on HT there may be someone who knows, or suspects, or whatever. If you folks draw a blank my next step is to contact the DLNR (searching HRS was tedious and unproductive).

My land crosses Kahalu`u Stream, and I do not deny access to people collecting Ho`io (See: Ho'io: Hawaii's edible fern) or whatever other things that abound there, like Ohi`a `ai, Kukui, 'opae oeha'a, torch ginger, etc. Our local kahuna la`au depends on it for gathering herbs.

Next time you get your water bill, if they include their color brochure, look at the photo looking downstream with a huge boulder in the foreground. That's my back yard. In spite of floods and violent runoff, that boulder has not moved an inch in 20 years, though its smaller brothers and sisters have gone downstream.

I have a friend in Kalihi, an artist, whose house abuts a stream and the property straddles it. Access would be difficult because of steep waterfalls, but can people actually stand outside his downstairs bedroom windows?

I know, I talk too much, my posts are too long, they are uninteresting and you are welcome to not read them if it bothers you, however.....

THE MAIN QUESTION:

Does ownership of property include the right to bar people from passing through on a stream or stream bed cutting through that property?

Your responses will be appreciated, and in some cases treasured. If you come up with HRS references, I will certainly provide you a Gold Star!

[LikaNui]

Re: Legal Issues: Streams on Private Property

Our bayfront property in Kaneohe had Kea`ahala Stream running through it, and yes we owned the stream, according to our attorneys.
Obviously your situation may differ, and you need to get legal advice on this one.

[Adri]

Re: Legal Issues: Streams on Private Property

LikaNui: Even though you own the stream, it may be possible that the public has a right of access to it (unless your attorney has researched it and found otherwise). A right of access is not necessarily the same thing as ownership of it. For example, in Hawaii, there is a right of public access to beaches so if there is no other reasonable access, the public may cross over private lands to access the beach.

Kaonohi:

Nothing in this post is legal advice. This is the result of a quick google. If you want a reliable answer, you really should consult a water rights lawyer licensed to practice law in Hawaii.

This is a summary of the legal basis for access to beaches and shorelines (but you asked for streams, I know).
http://74.125.155.132/search?q=cache...&ct=clnk&gl=us

In general, all water in Hawaii is subject to a "public trust doctrine" that includes providing public access to water sources including streams

http://www.state.hi.us/jud/21309op.htm

"Under the public trust and the Code, permit applicants have the burden of justifying their proposed uses in light of protected public rights in the resource. As stated above, the public trust effectively creates this burden through its inherent presumption in favor of public use, access, and enjoyment. The legislature supplied the specific procedure for potential users to meet this burden in the permitting provisions of the Code, HRS chapter 174C, part IV. "

/snip

"Having recognized the necessity of a balancing process, we do not suggest that the state's public trust duties amount to nothing more than a restatement of its prerogatives, seeRobinson, 65 Haw. at 674 n.31, 658 P.2d at 310 n.31, nor do we ascribe to the constitutional framers the intent to enact laws devoid of any real substance and effect, see supra notes 29, 36 & 40. Rather, we observe that the constitutional requirements of "protection" and "conservation," the historical and continuing understanding of the trust as a guarantee of public rights, and the common reality of the "zero-sum" game between competing water uses demand that any balancing between public and private purposes begin with a presumption in favor of public use, access, and enjoyment. See, e.g., Zimring, 58 Haw. at 121, 566 P.2d at 735 ("[T]he State as trustee has the duty to protect and maintain the trust [resource] and regulate its use. Presumptively, this duty is to be implemented by devoting the [resource] to actual public uses, e.g., recreation."). "

A short article on riparian rights (I make no representation on how accurate or not the article may be)

http://www.americanwhitewater.org/co...p/id/access:hi


If the streams are "navigable water", it may be subject to public access under federal law:

http://caselaw.lp.findlaw.com/cgi-bi...=444&invol=164

Hawaii has a Water Resources Agency that supposedly controls stream use and policy (among other things). They may be able to give you your answers:

http://hawaii.gov/dlnr/cwrm/aboutus_regulations.htm

http://www.capitol.hawaii.gov/hrscur..._0011-0007.htm

It appears from the Hawaii Revised Statutes that at least some people may have rights of access to streams (note the Case Notes differentiating between citizens of the State and non-citizens of the State)

http://www.capitol.hawaii.gov/hrscur..._0007-0001.HTM

" /snip The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use."

I know, I know, clear as mud. Sorry. Perhaps your best bet would be to check with the Commission on Water Resources Management.

[Kaonohi]

Re: Legal Issues: Streams on Private Property

Adri, you are amazing.
I don't know how you find all this stuff so quick (and I haven't read it all yet, or even fully understood YOUR text posting, but I think I can find some answers there. Thank You! Mahalo Nui Loa!

Oh, I get it.... you're a lawyer?????



K

[Adri]

Re: Legal Issues: Streams on Private Property

It's a complicated area of law, it seems. Hope you find your answers!

[zff]

Re: Legal Issues: Streams on Private Property

When you find your answers, could you post there here? I'd be interested to know, even though I don't live near any stream or beach.

[Kaonohi]

Re: Legal Issues: Streams on Private Property

When you find your answers, could you post there here? I'd be interested to know, even though I don't live near any stream or beach.

Yep. I will.

[Kaonohi]

Re: Legal Issues: Streams on Private Property (heavy reading!)

In general, all water in Hawaii is subject to a "public trust doctrine" that includes providing public access to water sources including streams.
Hawaii has a Water Resources Agency that supposedly controls stream use and policy (among other things). They may be able to give you your answers:

" /snip The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use."

I know, I know, clear as mud. Sorry. Perhaps your best bet would be to check with the Commission on Water Resources Management.

No, Adri, no mud, just rippling water, clear but ever moving, and lots of it.

I acknowledge your genius or superior googling technique or whatever combination thereof which you used to steer me in the right direction. You have provided me an answer (which I shall check out with The commission on water resource management as well), which is pretty obvious.

Studying 7-1, your 'snip' is basically referring to the rights of tenants in regard to a freehold (fee simple) landowner, and not to the general public.

Additionally:
HRS §7-1
Case notes
If property is deemed "fully developed", i.e., lands zoned and used for residential purposes with existing dwellings, improvements, and infrastructure, it is always "inconsistent" to permit the practice of traditional and customary native Hawaiian rights on such property. 89 H. 177, 970 P.2d 485.
Where defendant failed to adduce sufficient evidence to support claim of the exercise of a constitutionally protected native Hawaiian right and knowingly entered landowner’s property which was fenced in a manner to exclude others, trial court properly concluded that defendant was unlawfully on property in violation of §708-814(1). 89 H. 177, 970 P.2d 485.

The water rights commission states in the State Water Code:
State Water Code, Ch. 174C (2008 Amendment)
"§174C-5 General powers and duties. The general administration of the state water code shall rest with the commission on water resource management. In addition to its other powers and duties, the commission:
(1) Shall carry out topographic surveys, research, and investigations into all aspects of water use and water quality;
(...)
(5) May enter, after obtaining the consent of the property owner, at all reasonable times upon any property other than dwelling places for the purposes of conducting investigations and studies, or enforcing any of the provisions of this code, being liable, however, for actual damage done. If consent cannot be obtained, reasonable notice shall be given prior to entry;" (emphasis mine)

Since my stream is NOT navigable, but it IS crossing my private freehold, fee simple property, I can deny access to everyone but the above agency, who must first obtain permission or give notice.

I don't own the water, but I do own the stream bed.

I was misled years ago by surveyors doing topographic surveys, who told me that one cannot deny 'public' access to streams. Perhaps the 2008 revision changed that, I don't know.

It was a lot of difficult reading, and I can't create a structure (such as a chain-link fence) in the stream bed, but I can build a structure over the stream (like a footbridge - with a permit) and post the property, as well as include restrictive devices (barbed wire, discontinuous fencing) so long as they do not cause stream diversion or restriction of flow during flooding.
Not that I intend to, but it's good to know.

I owe you one. Thank you VERY much!

K.

[Adri]

Re: Legal Issues: Streams on Private Property

Kaonohi: Glad you made your way through all that! I really didn't do much of anything other than google and post. You did the hard work