Is river bed private property?

[RipNLips]

I have it on good authority that this case will finally go before the Utah Supreme Court in April. It will be interesting to see if the law is changed in any way as a result of the hearing.

Here's a clip from the [url "http://www.bigfishtackle.com/cgi-bin/gforum/gforum.cgi?post=23178"]original post[/url] on the subject that I made back in 2003.

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If a river crosses private property, is the river bed private property? A fellow angler I know and his lawyer continue to try to get the answer to that question changed to "No". Through a civil suit, they hope to get the Utah Legislature to say the river bed is public property just like the water flowing over it is. The wheels of justice turn slow however, as you can see by the date on this article. They're still trying to get a hearing.[font "Verdana"]

Trespassing charge over river dropped

Sat, May 4, 2002

By TIM GURRISTER

Standard-Examiner staff

OGDEN -- A judge has dismissed a trespassing charge against Keven Conatser regarding public rivers and private property, but the issue of whether you can walk on a river bottom in Utah remains up in the air.

The case promises to stay complicated and drawn out with issues about easements and navigable waterways plus legal differences studied throughout the west.

Montana allows its residents to walk on stream beds, but no digging of holes, explains Conatser’s lawyer Gerald Nielsen of Salt Lake. New Mexico says sometimes, he said.

Wyoming, Nielsen said, says no walking on the streambed, and also don’t anchor on the streambed.

So the parties will vie for various legal precedents to be applied to the case.

"That’s what makes the practice of law so complicated," Nielsen said.

And the case now will proceed via Conatser’s civil suit since 2nd District Judge W. Brent West has dismissed the Morgan County Sheriff’s criminal trespassing charge against Conatser.

Morgan County Attorney Kelly Wright had originally maintained the Roy man and his group were trespassing June 4, 2000, when Conatser walked along the river bottom of the Weber River to pull his raft to the bank of the river.

Wright argued an easement or public access was only for the river, not the streambed.

"The only public easement has to do with water, not real estate," he said during a motion hearing in October.

Wright has since dropped the easement argument, stating that Utah’s trespassing law and any precedent is unclear on whether the public can walk on streambeds.

"The Utah Supreme Court has said on the question of whether the public has an easement in a streambed, we express no opinion," Wright said.

Conflicting evidence

West dismissed the trespassing charge because of conflicting evidence over whether Conatser was on the bank, not the bottom of the river, Wright said.

Conatser’s lawyer Nielsen agrees that Utah’s law is unclear but statute and case law from around the west should allow the Utah Supreme Court to form an opinion. That’s where he’s pushing the case, where he hopes "body and soul" it will wind up.

Up to the Legislature?

Wright thinks the Utah Legislature should decide. "I believe it’s a legislative issue, that lawmakers should decide by debate and the public hearing process. I’m going to leave it up to the public policy makers to balance the rights of the public and the landowners."

In some places Utahns are walking on river bottoms, Nielsen said.

He points to a stretch of the Jordan River downstate where landowners feel the water’s edge, however it varies, is their property line.

In that case, Nielsen believes it’s because a federal "navigable waterway" standard applies, which makes the streambed state property.

He wants to develop the Weber River’s case for the federal navigable waterway standard.

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[pacscrumhalf]

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.
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[RipNLips]

The ridiculous part is that I can currently float past your "riverfront cabin" fishing along the way without being in violation of the law. If any part of myself or my equipment touch the river bottom as I float by I'm in violation of the law.
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[lavaman]

IMO there should not be any so-called 'Private Property' where rivers, streams, and lakes are concerned. Folks, this was all put here on earth for ALL of us to enjoy, not just those who are millionaires.

I know, I know...money talks. Sad it has to be that way.
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[HookJaw_Brimhall]

Here's a question.
What if I'm fishing a river and a come to a barbed wire fence that goes into the river and clearly states that it is private property? The fence has a post in the middle of the river bed indicating that the property is infact the owners. Crossing this fence would indeed be trespassing, but if the river is public how can I justify crossing someones fence??? Nobody wants to be seen crossing a fence whether it's public or private on the other side.
What would you do?
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[trout_slayer]

Thats why I always carry a good sharp pair of wire cutters. If I know there is a big fish on that "private property" I am going to get there. This is "The Land of the Free" not the "Land of the Private"!!!HAHAHA just kidding of course. This is a great topic though!!! Always wanted to OWN a portion of a river!!! Whats next, buying portions of lakes and dividing them with bouy markers??? I would own every Mac Hump at the Gorge that is for sure!!!
TS
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[CROSSINEYES]

good luck with the fight. but river chanles change yr to yr on public and private land. if the water changes path does he loose moore dirt? and the old river chanle does that remain public or go back to privet? he owns the dirt below its jsut how it gets to be. the provo above dc changes every yr many here have seen it im sure since it became a sportsmans river with granted access. in the old day when it was private we could catch a bunch of 20 to 30 inch browns. not any moore.[unsure] that section have at least 5 old river beds threw a 2 mile stretch of his land. he would loose over a 3rd of his dirt.
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[lunkerhunter2]

It remains private property with permission to tresspass due to community pond status. We just can't screw it up. There is no swimming, floating or tubing allowed but ice fishing for the moment is allowed. The easiest access is where the big metal gate is on a sloping spot by the big telephone pole. That will put you right on the dam. There is still property that you can't cross on the north and east end. Just park and walk by the 2 gates and you have no worries. Hope this helps.[]
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[Vivid-Dawn]

Oohh, okay. Thanks for the clarification!
I won't be down there for a while, there's still ice on it. Kaysville is all open water, last I knew, so I'll stick to that for now. Maybe check out Farmington pond, after court next week
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[pacscrumhalf]

The statute is a bit ambiguous, but the way I read it, the high water mark is the owner's property line and anything past that, including the river bottom, is public. Not that I would make a scene just to make a point, because it is not worth it to me to fight it, there are so many other places to drop a line, but it will be interesting to see how the Utah Supreme Courts interpret the statute.

Unfortunately, alot of Utah Statutes are really convoluted and contradict each other. So no surprise there.
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[Theekillerbee]

Not sure where I heard this, but I think it is illegal to obstruct a navigable waterway.
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[pacscrumhalf]

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 § 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]
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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.
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