Property Rights/streams and rivers.

[1911]

This could get very interesting.

SALT LAKE CITY (AP) -- Utah's highest court has ruled that streams and rivers are public even where the land under them is privately owned.

Friday's decision means landowners can't stop people from walking on and along riverbeds while fishing or floating.

The case turned on a Roy couple's trespassing citation in 2000 for leaving their raft to go fishing and take down some fencing that was strung across Weber River.

The ticket was dropped when Kevin and Jodi Conatser appealed a justice-court conviction, but they filed a civil suit to improve on state law that said they could touch a riverbed only to free a stuck raft or assist in floating. "I'd call it a landmark decision," said Robert H. Hughes, the couple's lawyer, who argued the case in April.

The Utah Supreme Court said people have to behave reasonably and cause no property damage when they wade or walk immediately along stream and river beds.

"Now we can float down that river without being worried about getting shot by that farmer," said Kevin Conatser, who said he has been shadowed by all-terrain vehicles and threatened on trips down the Weber River.

"If I had a stream in my backyard, I'd be concerned," said Ronald Russell, who represented ranchers with land along the Weber River in Morgan County.

Russell said his clients merely want to protect their property from damage to fences, barns and irrigation structures.

The decision doesn't let people walk along stream banks on private land or cross private property to reach water.

------ Information from: The Salt Lake Tribune

(Copyright 2008 by The Associated Press. All Rights Reserved.)

 

[ClorideRUS]

"Now we can float down that river without being worried about getting shot by that farmer," said Kevin Conatser"

What a idiot! When he takes one in the guts it won't hurt as bad 'cause he got the law on his side.

What part of "PRIVATE" property don't these morons understand.

RUS

 

[BigFin]

Cloride:

I guess your question could be turned around to ask , "What part of public access/rights don't some landowners understand?" Seems to me that the court is clarifying what is a private property right under UT law and what is a public right under UT law.

Happens all the time, in many states on many different issues. Sometimes landowners prevail, sometimes not.

In MT, our law allows stream access below the high water mark. Landowners don't always like it, but the Supreme Court has defined the high mark as the place where private property ends and public access starts.

Obviously, this case is about UT, not MT, but I don't find it surprising that some state courts have to clarify what is private and what is public.

I own four hundred yards of some of the most fished river front property in the town I grew up in. Do I like the litter, people pissing on the banks, etc.? No, but access to streams is not a private property right under the laws of the state in question, so as a private property owner, I must recognize where my rights start and where the rights of others begin.

If I am really a private property advocate, as I claim to be, that requires that I not "create" property rights where none currently exist, or usurp the property rights of others, even if it is a public property right.

Just another perspective. I am sure it will create a lot of turmoil as people struggle with the change a decision like this must represent.

"Hunt when you can - You're gonna' run out of health before you run out of money!"

 

[bobcatbess]

EASY RUS!!!

I'LL BE ABLE TO TRESPASS ON YOUR GROUND,LEGALLY!!!

YOU HAVEN'T GUT SHOT ANYBODY SINCE YOU RUN THE WARDEN OFF,WTF???

"THE PART THEY THINK THEY UNDERSTAND" IS:::

THIS LAND IS YOUR LAND,THIS LAND IS MY LAND,FROM KALIFORNYA.....................!!!



THIS IS MY NEW GUN,YOU MAY NOT LIKE IT,YOU'LL LIKE IT A HELL OF A LOT LESS WHEN IT HITS ITS DESTINATION!!!

THE ONLY bobcat THAT KNOWS ALOT OF YOU HAVE HAD THIS IMAGE IN YOUR PEA BRAIN BUT DUE TO POOR SHOOTING TACTICS I'M STILL KICKIN!!!

 

[ClorideRUS]

LAST EDITED ON Jul-19-08 AT 09:19PM (MST)[p]Sorry! deleted that one ... didn't even make sense to me.

RUS

 

[BigFin]

RUS:

I agree about your comment of many variables. Certainly not an easy question and changes the long standing practices and expectations that property owners thought were part of their river frontage property rights.

To your point:

"I guess my question would be... do you own the property on both sides of the river? If so, I would think you are within your rights to expect people to go around your 400 yards of river. Or at the very least never get out of their float tubes or boats."

I only own the south side, where the deep fishing holes and nice sun tanning rocks are located. Whether I agree or not, the state law in question says that if they legally get to my shoreline by floating or walking below the high water mark, there is nothing I can do about it, so long as they stay below the high water mark.

Do they do that? Most of the time they do. With out fail, some teenagers come down at night, drink a few beers, start a little fire, and guess where they get the trees? Yup, above the high water mark. Yet, most folks are good about it and many ask, even though they legally don't have to.


To this point:

"I don't understand the high water mark deal. Is it within your rights to put up 8' concertina wire at the high water mark?"

If I wanted to, I could build such a fence above or at the high water mark. That would probably keep folks below the high water mark, but it wouldn't do much for the aesthetic value of my property, would make it hard for my family and friends to access the river, and would be expensive.

The person downstream from us tries chases off anyone and everyone. Even though the anglers are within their legal rights, they get tired of the hassle and find it easier to fish from our shore, if they are shore fishing. The folks upstream from us are great about it, and they bear even more of the brunt of shore anglers than we do.

In MT, the law was clarified in the late 1980s and we are still fighting about it in the courts, or at least fighting about variations of it. I suspect the same will happen in UT, if this case becomes the "Law of the Land" as it relates to stream access.

"Hunt when you can - You're gonna' run out of health before you run out of money!"

 

[ClorideRUS]

BigFin, please note I nuked myself! I truly understand your dilemma. If people would respect each others rights, there wouldn't be any debate. Sadly those days are long gone.

RUS

 

[hntbambi]

I have seen this type of issue back east where idiot landowners thought they owned running water. Not a chance. It's about as bogus as the landowners that post public land because they own land on both sides of a BLM strip.

 

[deserthorn]

Well I think this thing is bogus I have people trying to get on our property all the time by using the river that runs through the middle of it. and I enjoy running them off of the land. if its in the middle of your property i dont think the public should have the right to get on it.

 

[DallanC]

Several points mentioned in the ruling:

First, People recreating on the water have the right to "Portage" around rapids, shoals or other obtructions to continue down river, this isnt limited to any "high water mark".

Secondly, and they specifically mentioned this several times: Any legal activity in the area, is allowed on the water which includes HUNTING and discharging firearms. I'll bet some of these landowners are going to freak out when people start float tubing through their propertys firing weapons.

I dont know how the firing a weapon thing works though because legally a bullet is an extension of yourself and its illegal to fire a weapon onto private property... so someone float tubing on a river would have to contain his projectiles to that area when he shoots.


-DallanC

 

[nezzy]

That has been an isue in Idaho for as long as I can remember, people posting and painting every rock above the water. If I am below the high water mark, you can go pound sand

 

[manny15]

>Several points mentioned in the ruling:
>
>
>First, People recreating on the water
>have the right to "Portage"
>around rapids, shoals or other
>obtructions to continue down river,
>this isnt limited to any
>"high water mark".
>
>Secondly, and they specifically mentioned this
>several times: Any legal activity
>in the area, is allowed
>on the water which includes
>HUNTING and discharging firearms. I'll
>bet some of these landowners
>are going to freak out
>when people start float tubing
>through their propertys firing weapons.
>
>
>I dont know how the firing
>a weapon thing works though
>because legally a bullet is
>an extension of yourself and
>its illegal to fire a
>weapon onto private property... so
>someone float tubing on a
>river would have to contain
>his projectiles to that area
>when he shoots.
>
>
>-DallanC



now if I remember right, in Calif. you can float thru, but not stop, and when it comes to firing a gun for maybe ducks you gotta be anchored, shooting from a moving vehicle be it boat or car is illegal....complicated issue for sure...

 

[nickman]

So, if I have a stream running thru the middle of my pasture, I cannot put a fence across that stream to keep my cows in, because someone might want to float down it? How can that work?

Seems pretty much like BS to me.

 

[BuzzH]

You can fence it...and I can cut it to float through.

Or, a better solution is the fences that keep cattle in and let floaters through. Seen them used on rivers in Montana, pretty slick really.

 

[tylercreek2]

The public's right to use California waterways is guaranteed by the United States and California Constitutions and affirmed by California Legislative Codes. Both Federal and California case law further define and affirm these rights.

United States Constitution - Freedom of navigation and the public?s right to use rivers are guaranteed by the Commerce Clause. The congressional Act admitting States to the Union requires that ?all the navigable waters within said State shall be common highways and forever free.?

California State Constitution, Article 10, Section 4 - Forbids individual, joint and corporate landowners from obstructing free navigation. It provides that ?the Legislature shall enact such law as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.? It also forbids landowners ?to exclude the right of way to [navigable] water whenever it is required for any public purpose.?

 

[Ropinfool]

Stupid ruling

 

[Coyote_chaser]

How is it a stupid ruling? Are not rivers and streams public resources? At least I always thought they were. Landowners/Ranchers are always freaking out about this kind of stuff! But who do I get to complain to when they dump 500 head of sheep into the canyon I have been scouting for a month? Who do I get to complain to when a herd of cows jumps the deer/elk I was sneaking up on? Just curious.

 

[Deadred7o7]

>>Several points mentioned in the ruling:
>>
>>
>>First, People recreating on the water
>>have the right to "Portage"
>>around rapids, shoals or other
>>obtructions to continue down river,
>>this isnt limited to any
>>"high water mark".
>>
>>Secondly, and they specifically mentioned this
>>several times: Any legal activity
>>in the area, is allowed
>>on the water which includes
>>HUNTING and discharging firearms. I'll
>>bet some of these landowners
>>are going to freak out
>>when people start float tubing
>>through their propertys firing weapons.
>>
>>
>>I dont know how the firing
>>a weapon thing works though
>>because legally a bullet is
>>an extension of yourself and
>>its illegal to fire a
>>weapon onto private property... so
>>someone float tubing on a
>>river would have to contain
>>his projectiles to that area
>>when he shoots.
>>
>>
>>-DallanC
>
>
>
>now if I remember right, in
>Calif. you can float thru,
>but not stop, and when
>it comes to firing a
>gun for maybe ducks you
>gotta be anchored, shooting from
>a moving vehicle be it
>boat or car is illegal....complicated
>issue for sure...

Ask Eel how his scull boat is legal? Never mind found it.

507.5. Scull Boats.
Migratory game birds may not be taken by
a scull boat or similar watercraft while under
motorized power. The motor shall be removed
from its mountings before any take or approach
is attempted.
This section shall not prohibit shooting migratory
game birds from scull boats or similar watercraft
with motor attached if beached or anchored; nor
shall it prohibit the use of a motor for the sole
purpose of picking up dead or injured birds.

Kyle
"If it moves shoot it again"

 

[Ropinfool]

If it's deeded/private property, you don't have any right to be there. Public property is different.

 

[deserthorn]

This is a stupid ruling. cause how is it your right to come onto my property to use my water that I have made there. We just got done building a house that we actually built our own lake we dug it out and pumped water to it. then we dug a ditch to have a creek flowing from it. so you should have zero rights to that water.IMO!!!

Jake

 

[nickman]

Key word here....Navigable. That means you have to be able to operate a boat on it.....not walk it or wade it.

 

[muzz]

This is great. I am heading fishing. Damn landowners that have harrased me for years, I will now fish it and laugh.

 

[ForkWest]

Go read the buzz on utahonthefly.com, them boys have been following this very closely!

 

[DallanC]

>Key word here....Navigable. That means you
>have to be able to
>operate a boat on it.....not
>walk it or wade it.

Absolutely false. Read the opinion, they specifically said this is not the case.

"The public?s easement to use the water, however, exists
?rrespective of the ownership of the bed and navigability of
the water.?8

http://www.utcourts.gov/opinions/supopin/Conatser071808.pdf

You can pretty much walk up an irrigation ditch now.


-DallanC

 

[DallanC]

LAST EDITED ON Jul-22-08 AT 01:20PM (MST)[p]And if you guys havent figured out the big loophole in this ruling... here it is:

"8 By statute, ?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.?

So theoretically, if you have water under your property, as proven by having a well or visible seeps for instance... the public has rights to cross your private property.


-DallanC

 

[Singleshot]

Let's analyze this scenario.There is a stretch of river which runs through about a mile and a half of private property,both sides.The property is leased to a very exclusive fishing club. It is properly posted and is policed daily. There is a county road bridge slightly upstream from the property (public access) and another one just downstream. If I get in the stream at the bridge, can I legaly fish the stream down to the next bridge?

 

[AndymanSavage]

>Let's analyze this scenario.There is a
>stretch of river which runs
>through about a mile and
>a half of private property,both
>sides.The property is leased to
>a very exclusive fishing club.
>It is properly posted and
>is policed daily. There is
>a county road bridge slightly
>upstream from the property (public
>access) and another one just
>downstream. If I get in
>the stream at the bridge,
>can I legaly fish the
>stream down to the next
>bridge?

I believe that this is exactly what the ruling means.....

Andy


-----------------------------------------------
http://www.trophyblogger.com/Andymansavage

 

[adamsoa]

That isnt a loophole. The land is still private. What the court did was to grant the public an easement along the bed of the waterway only. From what I understand if the water is navagatable then the state owns the stream/river bed. If it is not then the state has granted the public an easement for certain purposes only. It lists hunting and fishing.
I like the ruling. I've hated how guys have come in to some great local rivers bought the land and shut off access. I understand private property rights but in Utah there isnt a lot of water period. And over the last few years a lot of the very best has been shut down to public access.

 

[DallanC]

The loophole I mentioned is their defining waters both above and BELOW ground as being publicly accessable.

 

[nickman]

Screwed up as California is, I doubt that crap will fly here.

What that would mean, that every private lake or county resivior would be open to the public and fees for it's use would be illegal? Open and closed days would be illegal?

 

[sageadvice]

Pretty impressive ruling. There were LOTS of excellent comments on Utahonthefly.com, mostly for it. Hard to believe that someone who improved his own land, spent money and maintained his property, by a stream enhancement project or maybe even put in some well stocked ponds, can't keep people out, off of them if there's a trickle of running water to mark the way.

My first thought was of the deer hunting possibilities. Park at a bridge, hike up through a private property, NO HUNTING posted creek until it branches up a canyon and onto BLM or National Forest lands. A little thought, maps, and some research might well provide some guys with a couple little hunted new honey holes.

Joey

 

[1911]

Aren't a lot of those enhancement projects done in conjunction with DWR money for fifty cents on the dollar?

 

[ForkWest]

WOW Sage, I hadn't thought of that, my mind is racing with ideas! Sage advice fo-sho!

 

[sageadvice]

Yep, this very well could be a way to get to awsome landlocked public properties. Some of this public land might be behind property that the owner does not allow any hunting what so ever. He may own miles of the meadow with stream, game refuge type thing, that butts up on the public land behind and above, that had no legal access to the public.

I vision some ticked off landowners and lots of work involved but sounds to me like the new ruling will allow for this type of use.
Once you find a property like this, i might even contact the owner and tell him, respectfully, that you plan to access the property behind his by this method. If he agrees, fine. If he disagrees or threatens you, bring in the authorities to make clear to him or enforce, your right to access by the law.

Joey

 

[Coyote_chaser]

Thats a good idea. I think it should be illegal to landlock public land. That has always been a pet peeve of mine.