03-12-2008, 08:45 PM
This has been a long argued issue and most states, albeit not most landowners, agree that the highwatermark is the boundary and the landowner does not own the water or streambed that passes through private property.
That said, if you enter the river or stream, or a lake for that matter, from public property and end up going through private property while still in the water, arguably you are not trespassing. But, you cannot enter private property to reach public fishing holes.
In Michigan, the issue was hotly contested where all of the shores of Lake Michigan were being purchased by the wealthy and denying access to the public, making many beaches private. The Supreme Court came out on that one and held that it was constitutional for the state to provide a right-of-way access to the beaches, even if through private property (that's a real generalized summary of the decision).
In Utah, the issue is decided, for all intents and purposes, between the following 2 Utah statutes:
U.C.A. 1953 § 23-21-4
(1) Except as provided in [url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000511&DocName=UTSTS65A%2D2%2D5&FindType=L&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]Section 65A-2-5[/url], there is reserved to the public the right of access to all lands owned by the state, including those lands lying below the official government meander line or high water line of navigable waters, for the purpose of hunting, trapping, or fishing.
[/url][/url](2) When any department or agency of the state leases or sells any lands belonging to the state of Utah lying below the official government meander line or the high water line of the navigable waters within the state, the lease, contract of sale, or deed shall contain a provision that:
[/url](a) the lands shall be open to the public for the purpose of hunting, trapping, [/url]or fishing during the lawful season, except as provided by [url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000511&DocName=UTSTS65A%2D2%2D5&FindType=L&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]Section 65A-2-5[/url]; and
[/url](b) no charge may be made by the lessee, contractee, or grantee to any person who desires to go upon the land for the purpose of hunting, trapping, or fishing.... AND U.C.A. 1953 § 23-20-14 [/url](d) "Properly posted" means that "No Trespassing" signs or a minimum of 100 square inches of bright yellow, bright orange, or fluorescent paint are displayed at all corners, [/url]fishing streams[/url] crossing property lines, roads, gates, and [/url]rights[/url]-of-way entering the land. If metal fence posts are used, the entire exterior side must be painted.
[/url][/url](2)(a) While taking wildlife or engaging in wildlife related activities, a person may not:
[/url](i) without the permission of the owner or person in charge, enter upon privately owned land that is cultivated or properly posted;
[/url](ii) refuse to immediately leave the private land if requested to do so by the owner or person in charge; or
[/url](iii) obstruct any entrance or exit to private property.
[/url](b) "Hunting by permission cards" will be provided to landowners by the division upon request.
[/url]© A person may not post:
[/url] [/url](i) private property he does not own or legally control; or
[/url](ii) land that is open to the public as provided by [url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000511&DocName=UTSTS23%2D21%2D4&FindType=L&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]Section 23-21-4[/url].
One problem will be what constitutes "navigable waters." The U.S. Supreme Court has long changed the term from "navigable waters" to "all waters of the U.S."
I know this has been posted and discussed at length before, but unreasonable force, obviously including deadly force, cannot be used to remove a person from the property unless the owner's life is at stake and/or the property is what would be considered the owner's "curtilage" or area immediately adjacent to and including the owner's habitation. But, again, that does not include the riverbed.
So, and I know a lot of property owners are going to argue the point, if you entered into the river or stream from public property, remained in the water and are fishing in front of the property owner's riverfront cabin, by case law and statute, you should have the right to there. I used the fishing in front of the riverfront cabin to illustrate the point.
And, lastly, even if this gets decided in favor of sportsmen, it will be a difficult pill for most property owners to swallow.
[signature]
That said, if you enter the river or stream, or a lake for that matter, from public property and end up going through private property while still in the water, arguably you are not trespassing. But, you cannot enter private property to reach public fishing holes.
In Michigan, the issue was hotly contested where all of the shores of Lake Michigan were being purchased by the wealthy and denying access to the public, making many beaches private. The Supreme Court came out on that one and held that it was constitutional for the state to provide a right-of-way access to the beaches, even if through private property (that's a real generalized summary of the decision).
In Utah, the issue is decided, for all intents and purposes, between the following 2 Utah statutes:
U.C.A. 1953 § 23-21-4
(1) Except as provided in [url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000511&DocName=UTSTS65A%2D2%2D5&FindType=L&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]Section 65A-2-5[/url], there is reserved to the public the right of access to all lands owned by the state, including those lands lying below the official government meander line or high water line of navigable waters, for the purpose of hunting, trapping, or fishing.
[/url][/url](2) When any department or agency of the state leases or sells any lands belonging to the state of Utah lying below the official government meander line or the high water line of the navigable waters within the state, the lease, contract of sale, or deed shall contain a provision that:
[/url](a) the lands shall be open to the public for the purpose of hunting, trapping, [/url]or fishing during the lawful season, except as provided by [url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000511&DocName=UTSTS65A%2D2%2D5&FindType=L&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]Section 65A-2-5[/url]; and
[/url](b) no charge may be made by the lessee, contractee, or grantee to any person who desires to go upon the land for the purpose of hunting, trapping, or fishing.... AND U.C.A. 1953 § 23-20-14 [/url](d) "Properly posted" means that "No Trespassing" signs or a minimum of 100 square inches of bright yellow, bright orange, or fluorescent paint are displayed at all corners, [/url]fishing streams[/url] crossing property lines, roads, gates, and [/url]rights[/url]-of-way entering the land. If metal fence posts are used, the entire exterior side must be painted.
[/url][/url](2)(a) While taking wildlife or engaging in wildlife related activities, a person may not:
[/url](i) without the permission of the owner or person in charge, enter upon privately owned land that is cultivated or properly posted;
[/url](ii) refuse to immediately leave the private land if requested to do so by the owner or person in charge; or
[/url](iii) obstruct any entrance or exit to private property.
[/url](b) "Hunting by permission cards" will be provided to landowners by the division upon request.
[/url]© A person may not post:
[/url] [/url](i) private property he does not own or legally control; or
[/url](ii) land that is open to the public as provided by [url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000511&DocName=UTSTS23%2D21%2D4&FindType=L&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]Section 23-21-4[/url].
One problem will be what constitutes "navigable waters." The U.S. Supreme Court has long changed the term from "navigable waters" to "all waters of the U.S."
I know this has been posted and discussed at length before, but unreasonable force, obviously including deadly force, cannot be used to remove a person from the property unless the owner's life is at stake and/or the property is what would be considered the owner's "curtilage" or area immediately adjacent to and including the owner's habitation. But, again, that does not include the riverbed.
So, and I know a lot of property owners are going to argue the point, if you entered into the river or stream from public property, remained in the water and are fishing in front of the property owner's riverfront cabin, by case law and statute, you should have the right to there. I used the fishing in front of the riverfront cabin to illustrate the point.
And, lastly, even if this gets decided in favor of sportsmen, it will be a difficult pill for most property owners to swallow.
[signature]