Utah Stream Access Coal. v. VR Acquisitions, LLC
Decision Date | 20 February 2019 |
Docket Number | No. 20151048,20151048 |
Citation | 439 P.3d 593 |
Parties | UTAH STREAM ACCESS COALITION, Appellee and Cross-Appellant, v. VR ACQUISITIONS, LLC, and State of Utah, Appellants and Cross-Appellees. |
Court | Utah Supreme Court |
On Direct Appeal
¶1 In Conatser v. Johnson we recognized a public easement right "to touch privately owned beds of state waters in ways incidental to all recreational rights" to those waters. 2008 UT 48, ¶ 19, 194 P.3d 897. Citing common-law easement principles, we held that the "incidental right of touching the water’s bed is reasonably necessary" to the public’s right not just to float on the water but also to wade in waters for hunting, fishing, swimming, and other forms of recreation. Id. ¶¶ 22–25. And we concluded that an easement right of incidental touching "does not cause unnecessary injury to the landowner." Id. ¶ 22.
¶2The legislature responded by enacting the Public Waters Access Act (PWAA), Utah Code sections 73-29-101 to 73-29-208. That statute affirms the right of the public to "float on public water," id. § 73-29-202(1), and to "incidentally touch private property as required for safe passage and continued movement" and "portage around a dangerous obstruction in the water," id. § 73-29-202(2). But it also restricts the scope of the Conatser easement—by limiting the easement to incidental touching and portage, without any recognition of a right to wade in the stream for hunting, fishing, swimming and other recreational uses. See id.
¶3This lawsuit ensued. The case was filed by the Utah Stream Access Coalition (USAC), an organization committed to maintaining public access to rivers and streams throughout Utah. In a complaint filed in the Fourth District Court USAC asserted a constitutional right of its members to wade in waters of the Provo River flowing through land owned by VR Acquisitions. And it alleged that the PWAA had unconstitutionally restricted the easement recognized by this court in Conatser . The district court agreed. It struck down the PWAA under "public trust" principles set forth in article XX, section 1 of the Utah Constitution —a provision that (1) deems "[a]ll lands of the State" that have been "acquired" by it as "public lands" and (2) requires that those lands "be held in trust for the people, to be disposed of as may be provided by law, for the respective purposes for which they have been or may be ... acquired." UTAH CONST. art. XX, § 1.
¶4 We reverse and remand on the basis of a threshold error in the district court’s decision. The threshold error goes to the nature of the easement as recognized in the Conatser case. The district court treated that easement as a right rooted in constitutional soil. It accordingly deemed that right to be one "acquired" and "accepted" by the State under the terms of article XX, section 1. We reverse on the basis of an error in the district court’s disposition of this issue. We clarify that our analysis in Conatser was based only on common-law easement principles. And because this court’s common-law decisions are subject to adaptation or reversal by the legislature, we hold that it was error for the district court to have treated the Conatser easement as a matter beyond the legislature’s power to revise or revisit.
¶5 The district court struck down the PWAA on constitutional grounds. In so doing it resolved some important questions of constitutional law. It treated the Conatser easement as a "land[ ] of the State" covered by article XX, concluded that such land had been "disposed of" by the State, and held that the PWAA’s regulation of such land ran afoul of the "public trust" doctrine established in this provision. We stop short of resolving the core elements of USAC’s constitutional challenge to the PWAA because we reverse instead on the basis of the above-noted threshold error. In reversing on this basis we do not foreclose the possible viability of the district court’s ultimate disposition of this case. We explain that it may be possible for USAC to demonstrate on remand that there is a basis in historical fact—in the understanding of public easements in the late 19th century—for the easement we recognized in Conatser . And we leave it open to USAC to seek to make such a showing on remand.
¶6 These are significant constitutional questions. And each of them has been addressed by the parties on this appeal. But they could also be mooted on remand if USAC fails to establish that the Conatser easement has a historical basis as a public easement as of the time of the framing of the Utah Constitution. With this in mind, we consider some of the parties’ arguments on these issues but decline to resolve them conclusively on this appeal.
¶7 Our decision in Conatser v. Johnson arose out of a property rights dispute culminating in a criminal trespass action. 2008 UT 48, 194 P.3d 897. The Johnsons owned private property over which the Weber River flowed. Id. ¶ 3. The Conatsers "put a rubber raft in the Weber River at a public access point" above the Johnson property and touched the riverbed as their raft floated over that property. Id. "As they had done on at least two previous occasions, the Johnsons ordered the Conatsers off the river and told them to pick up their raft and carry it out via a parallel railroad easement." Id. "The Conatsers refused and continued floating down the river." Id. "When they exited at a public access point, the Morgan County Deputy Sheriff cited them for criminal trespass." Id.
¶8 In a civil suit before the Second District Court the Conatsers argued that they were entitled to " ‘recreate in natural public waters,’ " including by " ‘touch[ing] or walk[ing] upon the bottoms of said waters in non-obtrusive ways.’ " Id. ¶ 4. The district court recognized a more limited public easement. It held that the Conatsers were limited to "activities that could be performed ‘upon the water,’—chiefly floating—and that the right to touch the river’s bed was incidental only to the right of floatation." Id. ¶ 5. In so doing the district court relied on a decision from the Wyoming Supreme Court in Day v. Armstrong , 362 P.2d 137 (Wyo. 1961).
¶9 The Day decision "limited the scope of the public’s easement to the ‘right of floatation’ upon the water and allowed only those activities that could be done ‘while so lawfully floating.’ " Conatser , 2008 UT 48, ¶ 12, 194 P.3d 897. Citing Day , "the district court held that the Conatsers ‘may walk along the banks of the river ... in order to continue floating ... so long as [their] actions are as minimally intrusive as possible of the private owners’ land.’ " Id. ¶ 5 (alterations in original). Yet it also held that " ‘[w]ading or walking along the river, where such conduct is not incidental to the right of floatation upon natural waters, would constitute a trespass of private property rights.’ " Id. (alteration in original).
¶10 We reversed. We first clarified that although "the public owns state waters, the beds that lie beneath those waters may be" either publicly or privately owned: Id. ¶ 9 (citations omitted). Next we noted that "[t]he public’s easement to use the water" nonetheless "exists ‘[i]rrespective of the ownership of the bed and navigability of the water.’ " Id. ( ). And we held that "the scope of an easement is a question of law," id. ¶ 10, which we resolved by reference to standards set forth in common-law decisions in Utah and others states.
¶11 We acknowledged but rejected the narrow public easement in private streambeds as recognized by the Wyoming Supreme Court in Day v. Armstrong . Id. ¶¶ 12–15. We explained that the question of the scope of the public easement in private streambeds was a matter of first impression in Utah and was not before us in J.J.N.P. Co. v. State , 655 P.2d 1133 (Utah 1982). See Conatser , 2008 UT 48, ¶ 19, 194 P.3d 897 (citing J.J.N.P. , 655 P.2d at 1138 n.6 ). And we proceeded to establish a broader public easement than the Wyoming Supreme Court recognized in Day , encompassing a right to touch streambeds for "all recreational activities that utilize the water," including hunting. Id. ¶¶ 2, 14–15.
¶12 In so doing we invoked a common-law easement framework established in Big Cottonwood Tanner Ditch Co. v. Moyle , 109 Utah 213, 174 P.2d 148, 160 (Utah 1946), and 25 AM. JUR. 2D Easements and Licenses in Real Property §§ 1, 81 (2007). Id. ¶¶ 20–21. Thus, we held that " ‘[a]n easement is a privilege which one person has a right to enjoy over the land of another.’ " Id. ¶ 20 (citation omitted). And we indicated that "[t]he easement holder ... enjoys ‘the privilege to do such acts as are necessary to make effective his or her enjoyment of the easement,’ " meaning that the "easement holder has the right to make incidental uses beyond the express easement and does not exceed the easement’s scope if those uses are ‘made in a reasonable manner and they do not cause unnecessary injury to the servient owners.’ " Id. ¶ 21 (citations omitted).
¶13 Our determination of the proper scope of the public easement in Conatser was based on our attempt to balance the competing interests of the owners of the dominant and servient estates. We struck that balance by holding (1) that "touching the water’s bed is reasonably necessary and convenient for the effective enjoyment of the public’s easement"—its right to "float, hunt, fish, and participate in all lawful activities that utilize state waters," id. ¶ 23 ; and (2) that such touching does not "cause[ ] unnecessary injury" to owners of private streambeds, id. ¶ 26.
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