There is no public easement for beds crossing private land

A Utah judge delved deep into pioneering Mormon history to resolve a long-simmering dispute over access to rivers, this time in favor of river property owners.

In a severe blow to fishing and boating groups fighting for access to rivers in Utah, the Judge of the 4th returned. This is because in the Utah statehood there were no formal civil servants for non-navigable creeks, although the public access to the Provo and other Utah rivers was “widely accepted and extensive” at the time.

For more than a decade, the Utah Stream Access Coalition has challenged a Utah bill that allows landowners to deny public access to streams that run through private land. The coalition sued an exclusive resort on the banks of the Upper Provo River, arguing that the Utahners would have commonly accessed river beds prior to statehood in 1896.

That argument was instrumental in Pullan’s first verdict six years ago, but while in custody before the Utah Supreme Court, the judge drew a different conclusion.

“The coalition has failed to produce law or other evidence of actions by Congress to provide public servitude in the beds of non-navigable rivers and creeks in the Utah Territory,” the Heber City-based judge wrote in a judgment released Monday. “Because of the power of Congress over land in the Utah Territory, the public use of non-navigable riverbeds and creeks in the Territory between 1851 and 1869 could not create legal easement in the late 19th century.”

The historical significance of 1851 and 1869, respectively, is the signing of the Treaty of Guadalupe Hidalgo to cede the territory of Utah to the United States and the establishment of the first state office in Utah, which made it possible for settlers to acquire land for the first time.

In an email to its members on Tuesday, the coalition board said it was “deeply disappointed with this decision” and will meet next week to determine its strategy for further development.

What got this legal ball rolling was a 2008 Supreme Court ruling that ironically, in light of Monday’s ruling, recognized Utah’s rivers as public servitude as those waters belong to the state.

Because that ruling suggested that people could enter private property while they were in a creek bed, property lawyers pushed for a law that would allow owners to prohibit the public from touching privately owned creek beds.

In response to the controversy, the Utah Legislature passed HB141 in 2010 and the state has been on trial since then.

Fly fishermen and boaters formed the Utah Stream Access Coalition (USAC) and assembled teams of talented lawyers to bring two major lawsuits. With a view of the Weber River, it was successfully claimed that river beds used for floating tree trunks at the time of Utah’s rule were state-owned sovereign land, following the logic that such streams were vital to trade.

The other targeted a section of the Provo, a coveted trout stream that flows through a high-end fishing resort called Victory Ranch in the Woodland Valley, where the river exits the Uinta Mountains. Proponents of stream access claimed that historical public use of the Provo creek bed was an easement.

Citing the doctrine of public trust, Pullan agreed and repealed the river access law in 2015. Public trust is a centuries-old legal concept that certain natural amenities – such as coastlines, lakes, rivers, and their river beds – remain in the public domain because of their importance to trade.

His verdict indicated that HB141 blocked access to 2,700 of the 6,400 miles of Utah’s fishable streams, or 42% of the total.

But the Supreme Court turned the case back to Pullan, instructing him to resolve a narrow “threshold issue” that overshadows the entire case. Were there actually public easements for electricity beds in the books at the time of statehood?

The answer is no, according to Pullan’s ruling on Monday.

The access coalition had argued that the usual use of creek beds by the Utahners should be converted into a right of access in 1896 decades later.

“Throughout history, until the advent of trespassing laws in mid-20 beds of. . .[Utah’s rivers, streams, and lakes]”Coalition attorney Craig Coburn wrote in a letter,” whether navigable with public beds or non-navigable with private beds – for any legitimate purpose (e.g. fishing, christening, washing, bathing, swimming, swimming, wading , Necktie). / log and similar drives, installation of irrigation and mill works). “

One property rights group argued that the coalition’s position – that the public should have free access to streambeds – was a “major deprivation” of property rights.

“Such a prescriptive right in the general public ignores the essential characteristic of private property – the right to exclusion. In order for the USAC to prevail, it must show that the right to exclusion from private property did not exist before statehood. This is not the case, ”wrote attorney Michael Zimmerman, himself a former Utah Chief Justice, in a letter from a friend of the court on behalf of the Utah Alliance to Protect Property Rights. “A close examination of the cases from the Statehood era in Utah shows that property owners regularly prohibited travel on their properties.”

Customs easement may have been a common law doctrine of England, but that idea never caught on on US soil, Zimmerman noted.

“The coalition is right when it comes to state trespassing laws in the late 19th and early 20th centuries. These laws do not prohibit a member of the public from touching the privately owned bed of a non-navigable river or stream, ”Pullan concluded in his ruling. “The lack of civil or criminal responsibility for this public use does not mean, however, that the use also constituted a public servitude.”

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