03-14-2008, 04:00 AM
As to obstruction of access, somehow the cattle ranchers have been able to lobby the legislature somehow, but, this is the statute regarding obstruction. This will certainly use it to weigh in on the case heading to the Utah Supreme Court:
U.C.A. 1953 ยง 73-1-1
All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof.
Note:
[url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=0000104&SerialNum=1920033337&FindType=Y&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]128 A.L.R. 1195[/url], [/url]Obstruction[/url] or Diversion Of, or Other Interference With, Flow of Surface Water as Taking or Damaging Property Within Constitutional Provision Against Taking or Damaging Without Compensation=but that has more to do with State action.
Here is the Utah Supreme Court case regarding a lake surrounded by private property:
J.J.N.P. Co. v. State, By and Through Div. of Wildlife Resources
[size 1]655 P.2d 1133, Utah,1982.[/size]
[size 1][/size]
[size 1][size 2]Owner of land surrounding lake appealed from a judgment of the Third District Court, Salt Lake County, David B. Dee, J., upholding the Division of Wildlife Resources' denial of a permit to establish a private fish installation, entering a declaratory judgment that the public had recreational rights in the waters of the lake even though it was entirely surrounded by landowners' property, and ruling that a dirt road crossing the property was a public road. The Supreme Court, Stewart, J., held that: (1) the public had recreational rights in the waters of the lake even though it was entirely surrounded by landowners' property; (2) the statute prohibiting private fish installations on natural watercourses, but allowing them on man-made watercourses, did not deny equal protection; and (3) where the issue of the dirt road was not raised in the pleadings, but was tried by mutual consent, there was no error in deciding that issue.
Original Judgment Affirmed.[/size]
[/size]
The Supreme Court also held that there is public easement over water regardless of who owns water beds beneath water and therefore, public waters do not trespass in areas where they naturally appear, and public does not trespass when upon such waters.
This case is controlling so I don't think the defendant in the other case has much of a chance to argue the point.
[signature]
U.C.A. 1953 ยง 73-1-1
All waters in this state, whether above or under the ground are hereby declared to be the property of the public, subject to all existing rights to the use thereof.
Note:
[url "http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=0000104&SerialNum=1920033337&FindType=Y&AP=&fn=_top&rs=WLW8.02&mt=Utah&vr=2.0&sv=Split"]128 A.L.R. 1195[/url], [/url]Obstruction[/url] or Diversion Of, or Other Interference With, Flow of Surface Water as Taking or Damaging Property Within Constitutional Provision Against Taking or Damaging Without Compensation=but that has more to do with State action.
Here is the Utah Supreme Court case regarding a lake surrounded by private property:
J.J.N.P. Co. v. State, By and Through Div. of Wildlife Resources
[size 1]655 P.2d 1133, Utah,1982.[/size]
[size 1][/size]
[size 1][size 2]Owner of land surrounding lake appealed from a judgment of the Third District Court, Salt Lake County, David B. Dee, J., upholding the Division of Wildlife Resources' denial of a permit to establish a private fish installation, entering a declaratory judgment that the public had recreational rights in the waters of the lake even though it was entirely surrounded by landowners' property, and ruling that a dirt road crossing the property was a public road. The Supreme Court, Stewart, J., held that: (1) the public had recreational rights in the waters of the lake even though it was entirely surrounded by landowners' property; (2) the statute prohibiting private fish installations on natural watercourses, but allowing them on man-made watercourses, did not deny equal protection; and (3) where the issue of the dirt road was not raised in the pleadings, but was tried by mutual consent, there was no error in deciding that issue.
Original Judgment Affirmed.[/size]
[/size]
The Supreme Court also held that there is public easement over water regardless of who owns water beds beneath water and therefore, public waters do not trespass in areas where they naturally appear, and public does not trespass when upon such waters.
This case is controlling so I don't think the defendant in the other case has much of a chance to argue the point.
[signature]