Monday, April 20, 2009

Conatser v. Johnson

In July 2008, the Utah Supreme Court issued the its opinion in the case of Conatser v. Johnson. In Conatser, the Utah Supreme Court was asked to determine whether members of the public who are using a stream for recreational purposes, such as fishing or floating, have the right to touch the privately owned beds beneath the water. The Court noted that because the waters of the state belong to the public, the public has an easement to utilize the waters for recreational purposes. The Court then determined that touching the bed is “reasonably necessary” in order for the public to effectively enjoy the easement and that such touching does not cause unnecessary injury to the owner of the bed. The Court placed limitations on the public’s right, including (1) the public may engage only in lawful recreational activities, (2) the recreational activities must utilize the water, (3) the public must act reasonably in touching the bed, and (4) the public may not cause unnecessary injury to the owner of the bed. The effect of the ruling is that members of the public may enter a stream at a public access point and follow the stream through private land to float, hunt, fish, swim, or do any other recreational activity that utilizes the water without committing trespass.

The Court’s opinion left several questions unanswered. First, it is unknown whether the members of the public must actually be in the water in order to not be trespassing or whether the members of the public can use the bed up to the ordinary high-water mark (or some other point). Second, it is yet to be determined how the Court’s ruling can be reconciled with rules regarding fencing. For example, how does a rancher fence across a small stream in order to keep his cattle on his land without “fencing out” members of the public wishing to use the stream for recreational purposes? These questions, along with others, will have to be determined in future cases or by legislation.

To read the full opinion, click here.

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