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The legalities of floating on Colorado Waters
Ownership of Colorado Water In contrast to Eastern states where common law riparian rights tend to determine interests, as a result of the Desert Land Act of 1877, non-navigable waters in Western States were subjected to the prior appropriation rule and the states were granted control over those waters [Cal. Or. Power Co. v Beaver Portland Cement Co., 295 U.S. 142 @ 163-4; Cappaert v United States, 426 US 128,139 n.5 (1976); Ickes v Fox, 300 US 82, 95-96 (1937); Nebraska v Wyoming 325 US 589, 612 (1945)]. Thus it severed the nexus between land and the water flowing over it. This meant that non-navigble waters were severed from public lands, the states could deal with the waters separately from the underlying lands and common law riparian rights no longer existed [Cal. Or. Power Co. v Beaver Portland Cement Co., ibid @ 157 - 8] in the states to which the Act applied. These states included Colorado. Consequently, as a general proposition, water flowing in a natural stream, unappropriated by any person, is generally not owned by any private individual. [Water Rights Laws in the Nineteen Western States Wells A Hutchins, 1970 Vol 1 @ 137]. Unappropriated and flowing in the natural stream, the water is however capable of being used and enjoyed without being owned [a usufruct][e.g Lux v Higgin, 69 Cal. 255, 390, 4 Pac.919 (1894), 10 Pac.674 (1886)]. The use and enjoyment can be undertaken without appropriation. Hutchins explained in a footnote [[ibid] and also at 139], that those few cases which seemed to take the view that water flowing in a natural stream was owned by the landowner, were better interpreted merely as ruling that the landowner had the right to use or appropriate the water rather than vesting title to the body of the water in the landowner. It seems that the best explanation is quite simple.
This, arguably results in no-one owning the water because it cannot be possessed while it runs. The question then is what is the nature of the public interest in the water and to what extent has legislation addressed this issue? In Colorado this principal has been recognized statutorily in Article XVI, section 5 of the Colorado Constitution provides,
Consequently, it is clear at least from this provision, that the water unappropriated and in a natural stream in Colorado is not owned by any private person. The non applicability of the riparian doctrine had been well established by 1882 [Coffin v Left Hand Ditch Co., 6 Colo. 443, 446-7 (1882)]. In Colorado River Water Conservation District v Rocky Mt Power Co., 158 Colo. 331, 406 Pac. (2d) 798, 801 (1965), the court cited with approval an Idaho court opinion to the effect that " there is no such thing as a riparian right to the use of water as against an appropriator ...". The question is whether that forecloses the issue against the public. In addition does the obvious language of the legislation apply viz, is the unappropriated water owned by the public? There are alternative arguments. Maybe it is not owned at that point by anyone. Perhaps it is necessary to draw a distinction between the legal and beneficial ownership. Perhaps a distinction is to be drawn between the corpus of the water and the individual components. Perhaps it doesn't matter. If one takes the view that there is no private ownership of the unappropriated water flowing in a natural stream and that the interests of those using it are usufructuary, then a boater making use of the water is exercising that interest is exercising sufficient rights to give him standing against anyone with no better interest. In this instance the use of the water by a boatman would render it a perfect usufruct because after passage down the river, the water is entirely unconsumed and undiminished. The Colorado provision seems to support this view. First the provision provides that the unappropriated water is the property of the public. But then it goes a step further to declare that such property is "dedicated to the use" of the people of the State subject to the right of an individual to appropriate a portion of it.
How is this to be interpreted? If the provision intended that the water is to be beneficially owned by the public, why is it necessary to go a step further and dedicate it to the use of the people of the state? There are several approaches which might be reasonably adopted. 1. One approach, is that a distinction should be drawn between the legal and beneficial ownership of the corpus of the water. On this view, the state holds the legal interest in the water or the corpus of the water but not the equitable interest which is held generally for public benefit subject to appropriation. Under this theory, it would be consistent for the public to be able to "own" the property in the water without claiming a beneficial interest. This is one of the general exceptions for certainty of object in a trust. Thereafter the beneficial interest in the water remains held generally for public benefit until it is either appropriated, used for a time by some or more of the people of the state without appropriation or it passes out of the state and is no longer capable of being owned or subject to Colorado jurisdiction. The beneficial interest in the water would then either be appropriated by a private person or taken as a usufruct by one or more of the people of the state. 2. Another approach would be to draw distinction between the corpus of the water and the individual components of the flowing stream. Those particular components are then subjected to private ownership at the point of appropriation to the extent that that a particular portion is appropriated. But the general body of the river remains in the public ownership. While it is in the public ownership, a usufructuary boating on the water is temporarily using or enjoying that portion of the water proximate to his boating and fishing activity for the period of the use. After that it reverts to become an indivisible part of the corpus again until later used, appropriated or it passes out of the state at the border. Under either theory, section 5 makes some sense in adopting a distinction between "property of the public" and then "use of the people". And either approach supports the theory that the unappropriated water in a natural stream is not capable of private ownership until it is appropriated. Prior to appropriation it may be used by a boatman as a usufructuary. It will be a perfect usufruct because after use the water remains unaffected.How have other states addressed this? In Utah for instance, the Supreme Court has ruled that in the course of utilizing water, the public was entitled to undertake actions which were incidental to using it such as fishing, boating, wading while fishing, portaging around obstacles and generally anything which was incidental to using the water[Conatser v. Johnson Supreme Court of Utah July 18, 2008 2008 WL 2776716 (Utah 2008)]. There were 4 qualifications observed by the Supreme Court which protected the interests of the landowner.
More restrictively, in an earlier decision the Wyoming Supreme Court had determined that the uses to which the water could be put were as an incident of floating [Day v Armstrong 362 P.2d 137 (Wyo. 1961)]. This meant for example, that one could fish from a floating craft but could not alight and wade along the bank. The dominant use was floating and therefore the incidental rights were associated with floating rather than the utilization of the water. In Day v Armstrong (ibid) , the Court noted the constitutional provision which provided that all natural streams, springs, lakes, or other collections of still water are the property of the State [Art VIII para 1]. The Court concluded that:
It followed that boaters could use the water and if that involved having to portage around obstacles and drag a craft over shallow sections, that was permitted. The water course was an easement through which the water ran and via which boaters and rafters could make use of the water (ibid). The Montana Supreme court [Montana Coalition for Stream Access v Curran 210 Mont, 38; 682 P. 2d. 163 (1984)] also adopted the "use" test citing Day v Armstrong [ibid] with approval. The Colorado Supreme Court has determined that the Constitutional provision protects only a person’s right to appropriate water for a beneficial use, ( e.g., for municipal, industrial, or agricultural purposes), and not his or her right to float, fish, or otherwise recreate in non- navigable streams. People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979) at 1028; Hartman v. Tresise, 84 P. 685, 686 (Colo. 1905). The decision in Emmert's case was the subject of 2 dissents. Groves J pointed out the absurdity of the restrictive meaning of the term "use" and cited the dissenting opinion of Bailey J in Hartman v Tresise, 36 Colo.146 84 P. 685 (1906). Essentially if the only reason for the vesting of the right to the water in the public is for appropriation and nothing else, it cannot be property prior to appropriation because it is only the act of appropriation which renders it public property. But immediately on the appropriation it is no longer capable of being the "property of the public" because it has been appropriated by a private individual. It would therefore appear that the majority interpretation of "use" is questionable. There is nothing in the employment of the word "use" which should limit it to the extent suggested. If it is "'property of the public" there is no requirement to import the suggested restriction upon its use. Furthermore, as noted, the draftsman saw fit to expand the provision to include a specific dedication of the water to the use of the "people of the state". More curiously, although the property is "public" the actual use is dedicated to the "people" of the state. The word "public" is a general reference and to be contrasted with "private". But a dedication to the "people" is capable of more specific application whether singular or plural to the individuals who might use the water. To conflate "public" and "people" respectfully ignores the sharp distinction which the draftsman obviously intended. Obviously rafter's "use" the water for taking rafting trips down the river in a commercial venture. Similarly fishing guides do the same thing when taking out a client. The people of the state "use" the river for recreational purposes. If the majority view is taken as correct, coupled with the suggestion that there are no navigable waters in Colorado, it follows that no-one has the right to enjoy floating in Colorado. How can unappropriated waters in a natural stream be the "property of the public" dedicated to the "use of the people of the state" but only able to be "used" at the point of appropriation by a private individual? A close reading of the Attorney General's opinion of 1983 indicates that the definition of the term "premises" was undertaken with the express object of excluding from criminal trespass, someone who was floating over property without touching the sides. However, if the Emmert decision is that the only "use" to which the public has a right to natural streams is for appropriation, the public has no right to "use" the stream for floating. Yet the various comments of members of the legislature noted in the A-G opinion, contemplate that the public does have the right to float without touching the steam banks or streambed. In that case, what is the public's authority to float upon the water if it does not flow from the constitutionally endowed "property" in the water? The obvious answer is that the water is the "property of the public" generally dedicated to the "use of the people of the state" and therefore the people do have the right to "use" the water for floating and rafting and whatever other incidental uses which flow from ownership independent and prior to appropriation by a private individual. It is an obvious and simple answer and avoids the torture of language inherent in the majority's opinion. It would appear therefore that the better way to resolve the issue is to take the following views: First, the provision excludes private ownership by vesting the property in the public. This is an adoption of the elementary principle that unappropriated water flowing in a natural stream is not privately owned regardless of the ownership of the underlying land. So at this point either the public has a proprietary right in the body of water or no-one has such an interest. This view is supported by the preconditions laid down in the provision for the acquisition of water by a private individual viz, the act of appropriation. Therefore, prior to appropriation the private claimant has no rights. At the most he has the potential to appropriate but this is not a right vesting in specific water nor the body of water. It is a right which crystallizes in relation to specific particles of water at the time of appropriation. This is the case despite the fact that the riparian or appropriative water right of the individual constitutes property and generally real property. Prior to such right being exercised by appropriation the interest in particular water is only potential or at best inchoate. So at the most conservative level it could be argued that this leg of the provision excludes private ownership but doesn’t necessarily resolve whether the public owns property in the water or a lesser interest. This is resolved by the dedication. Second. The dedication of such water to the use of the public is recognition and codification of the usufructuary interest of the public in the water. The public has the right to use such water and while it is being used, the right of the usufructuary is co-existent with the right of the general public and superior to any private claimant who has not sought to appropriate such water. Thus a member of the public by floating on the water is exercising this usufructuary interest for the period of the float. This is the point that the potential of the public to use the water crystallizes by actual use. Consequently, on this view, it is immaterial in any contest between the public generally and a landowner whether the public generally has a proprietary interest in the water or whether it has a lesser usufructuary interest. It is at the point at which a member of the public actually exercises this right that the contest becomes relevant. And at that point the right of the usufructuary prevails over the landowner in relation to unappropriated water in the natural stream.
So until the matter is the subject of further litigation it is unclear. But it is the writer's view, that if the matter was revisited, the Court would ultimately give a broader meaning to the term "use" particularly given the extensive economic interests which have evolved in Colorado and which rely upon waterways for their survival and as suggested, the interest of the public would be usufructuary. Another aspect which has been little discussed is the relevance of common usages. Since 1983 despite the ruling in Emmert's case rafters and floating fishermen have floated across private lands in Colorado without actions in civil trespass having been brought or injunctions obtained. As a consequence, it is a relevant question now, 25 years later that as common usages have permitted the floating over land by the public, whether the ruling in Emmert's case in relation to civil trespass on non-navigable streams has any weight at all. The passage of time and non-intervention by property owners may have foreclosed the issue. Given the public ownership of the water, the current common practices, the non-intervention by landowners and the ability of Colorado to determine its own public trust doctrine in relation to its own waters, there is ample room for the State Court Supreme to revisit this and determine that the AG's opinion with the added incidental right of touching the riparian banks and bottom together with right to portage in cases of necessity has now become the law of the state. Time will tell. It should also be noted that the constitutional provisions is limited to "natural streams". How does this then apply to lakes and ponds? It would appear that a lake or pond which occurs in the course of a natural stream would constitute part of that stream. It would be an odd situation if water in a natural stream which flows into a lake immediately loses its character as public water upon entry into the lake. Given that the provision defines the public interest prior to appropriation, it would be necessary for appropriation to occur at the point it flows into the pond in order to lose its character as public water. Therefore it would be a matter of considering the facts of the particular case. If for instance the water flows into the lake and then out again at the other end and continues in a stream bed, it would be interesting to take the view that the water has been appropriated at the point it flows into the lake, used for recreational purposes by the owner of the lake and then discharged back into the stream to become public property again. In some circumstances it is possible that this in fact would be the case. Another matter of interest is whether a "natural stream" can evolve from an artificial waterway. In other words, if a farmer built a substantial channel which in time grew vegetation and became very natural, would that satisfy the definition? In California, it has been held to be the case [Chowchilla Farms v Martin 25 P. 2d 435, 442 (Cal. 1933); see also Natural Soda Products Co v City of Los Angeles, 23 Cal. 2d. 193, 197 (1943)]. next - Right of Portage Please note that these notes are only the opinion of the author on the law in Colorado and are not therefore determinative of the issue. In the event that for whatever reason it is necessary to explore these issues further, the reader should obtain appropriate legal advice.
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