Southern Idaho Fish and Game Ass'n v. Picabo Livestock, Inc.

• Decision Date: 22 July 1974
• Docket Number: No. 11269,11269
• Citation: 96 Idaho 360,528 P.2d 1295
• Parties: SOUTHERN IDAHO FISH AND GAME ASSOCIATION, a corporation et al., Plaintiffs-Respondents, v. PICABO LIVESTOCK, INC., a corporation, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1295

528 P.2d 1295

96 Idaho 360

SOUTHERN IDAHO FISH AND GAME ASSOCIATION, a corporation et al., Plaintiffs-Respondents, v. PICABO LIVESTOCK, INC., a corporation, Defendant-Appellant.

No. 11269.

Supreme Court of Idaho.

July 22, 1974.

On Rehearing Dec. 18, 1974.

Benoit, Benoit & Alexander, Edward L. Benoit, Twin Falls, D. Blair Clark, boise, for defendant-appellant

Edward H. Heap, Ketchum, for plaintiffs-respondents.

W. Anothony Park, Atty. Gen., Boise, amicus curiae.

Jones & Jones, T. J. Jones, III, Boise, for Idaho Fish & Game Commision, amicus curiae.

Anderson, Kaufman, Anderson & Ringert, Boise, for Idaho Cattlemen's Association, amicus curiae.

BAKES, Justice.

Plaintiff-respondent Southern Idaho Fish and Game Association, hereinafter respondent, brought a declaratory judgment action to have the court determine the rights of the members of respondent and the members of the public similarly situated, in and to the use of the waters of Silver Creek, and the bed, channels and banks thereof for fishing and recreational uses.

Silver Creek, with its headwaters in Blain County, is generally known as the stream that is formed where two of its main tributaries-Stocker Creek and Grove Creek-join together. A short distance downstream from this area another principal tributary, Loving Creek, adds its waters to Silver Creek. Silver Creek is renowned as one of the best fly fishing streams in the United States.

Appellant Picabo Livestock, Inc., hereinafter appellant, an Idaho corporation, owns land in Blaine County through which Silver Creek flows. On September 15, 1968, appellant, through its president, Mr. Leonard N. Purdy, ordered six members of respondent association to leave the creek stating that they were trespassing on private property. Three of the members were fishing from float rings and three were fishing from a boat. All of the fishermen entered the creek upstream from appellant's land and at all times stayed in the water except for a portage around Kilpatrick Dam. Appellant ordered all fishermen off the stream who did not have a 'trespasser's permit' or permission from appellant to fish Silver Creek as it flowed through appellant's land.

On September 19, 1968, members of respondent floated nine logs with diameters in excess of 6 1/2 inches down Silver Creek. Four of the logs were pulled out at the Highway 23 bridge below appellant's property, and three floated past the bridge without being retrieved.

After a non-jury trial, the trial court held that Silver Creek is navigable where it flows through the ranch lands owned by appellant. The court further held that Silver Creek was a public highway up to the high water mark and that respondents and other members of the public have the right to use the waters of Silver Creek and the bed, channels and banks thereof, up to the high water mark, as a public highway for travel and passage, up or downstream, for business or pleasure, and to exercise the incidents of navigation-boating, swimming, fishing, hunting and all recreational purposes-so long as they can enter into the waters thereof by not crossing dry land owned by the defendant. The trial court also found that as a necessary incident to The basic issues before the trial court and this Court on appeal are whether Silver Creek is navigable and, if so, what are the rights of the public to use a navigable stream. Idaho Code §§ 36-901 and 36-907 provide as follows:

the use of Silver Creek as a public highway for travel and recreational uses, members of the public could remove themselves and their boats, floats, conoes, or other floating crafts, from the stream and walk or portage such crafts around irrigation dams which completely obstruct the navigation of the stream and which do not have conncected therewith sluiceways, locks or sufficient fixtures so arranged as to permit timber or boats and other floating crafts to pass around, through or over said dams without unreasonable delay or hindrance, and then re-enter the stream immediately below said dams at the nearest point where it is safe to do so. From the judgment of the trial court appellant brings this appeal.

'36-901. Public waters highways for fishing.-Navigable rivers, sloughs or streams within the meander lines or not meandered between the lines of ordinary high water thereof, of the state of Idaho, and all rivers, sloughs and streams flowing through any public lands of the state shall hereafter he public highways for the purpose of angling or fishing thereon and any right or title to such streams or lands between the high water flow lines or within the meander lines of navigable streams shall be subject to the right of any person owning a fish license of this state, who desires to fish therein or along the banks, to go upon the same for such purpose.'

'36-907. Navigable streams for fishing.-For the purpose of this act, the following streams or parts of streams are declared navigable streams: . . . and every other stream or part of a stream on which logs or timber can be floated to market or the place of use during the high water season of the year. For the purpose of this act, logs and timber are defined as any cut timber having a diameter in excess of six (6) inches; high water is defined as the time of year when the stream normally carries its greatest volume.'

The trial court found that under the provisions of I.C. § 36-907, Silver Creek is a navigable stream as it is a stream on which logs or timber having a diameter in excess of six (6) inches can be floated to market or other place of use, and that under the provisions of I.C. § 36-901, Silver Creek is a public highway for the purpose of angling or fishing thereon and therein along the bed, channels and banks thereof up to the...