People v. Emmert
6 A.L.R. 4th 1016, 597 P.2d 1025, 198 Colo. 137 (1979)
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Rule of Law:
In Colorado, the public has no right to the recreational use of waters overlying private lands in non-navigable natural streams without the consent of the riparian landowner, as the ownership of the stream bed includes the exclusive right to control the air space above it.
Facts:
- On July 3, 1976, defendants Emmert, Taylor, and Wilson entered the Colorado River from public land for a downstream float-trip using rafts designed to draw shallow water.
- The Colorado River flowed through land owned by the Ritschard Cattle Company, and the defendants' rafts touched the riverbed with their legs as they navigated this section.
- Defendants did not leave their rafts or otherwise encroach upon the shoreline, banks, or islands of the Ritschard Cattle Company.
- Defendants had not obtained permission from the Ritschard Cattle Company to float on the river through their ranch, and defendants Taylor and Wilson had previously been warned against doing so.
- Con Ritschard and his foreman extended a single strand of barbed wire across the river to impede the defendants, who then floated their rafts under the wire despite being told they were trespassing.
- The parties stipulated that the river was non-navigable and had not been historically used for commercial or trade purposes, and the Ritschard Cattle Company owned the land on both sides of the river, including the stream bed.
Procedural Posture:
- Defendants Emmert, Taylor, and Wilson were arrested by a deputy sheriff and subsequently charged with third-degree criminal trespass.
- Trial was held to the court.
- The trial court found the defendants guilty of third-degree criminal trespass.
- The defendants-appellants appealed their conviction.
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Issue:
Does the public have a right under section 5 of Article XVI of the Colorado Constitution to float and fish on a non-navigable natural stream as it flows through privately owned property without first obtaining the consent of the property owner?
Opinions:
Majority - Justice Lee
No, the public does not have a right to float and fish on a non-navigable natural stream flowing through private property without the owner's consent. The court reasoned that in Colorado, the land underlying non-navigable streams is privately owned by adjoining landowners, and this ownership extends to the stream bed. Applying the common law rule of 'cujus est solum, ejus est usque ad coelum' (whoever owns the soil owns everything above it), the court held that ownership of the stream bed includes the exclusive right to control the space above the stream. Thus, intruding upon this space for recreational purposes without permission constitutes trespass. The court clarified that section 5 of Article XVI of the Colorado Constitution primarily establishes the right of appropriation for beneficial uses, not public access for recreation, reaffirming its prior holding in Hartman v. Tresise. The court further noted legislative recognition of landowner rights to control access to streams on their property.
Dissenting - Justice Groves
Yes, the Colorado Constitution's declaration that 'The water of every natural stream... is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state' should be interpreted broadly to include public recreational use. Justice Groves argued that the 'subject to appropriation' clause merely prioritizes appropriation but does not limit other public uses. He contended that Hartman v. Tresise was distinguishable because it concerned trespass to land (banks and beds) and its statements regarding appropriation rights were dicta. He also questioned the application of the ancient common law 'cujus est solum' rule in a state with an appropriation water system, especially given contemporary demands for recreational access.
Dissenting - Justice Carrigan
Justice Carrigan joined Justice Groves' dissent, adding that the majority should have decided the case on narrower grounds (e.g., the defendants touching the stream bed) to avoid a broad constitutional ruling. He criticized the majority's reliance on the ancient 'cujus est solum' doctrine, arguing it is obsolete and creates absurd consequences for modern society. Justice Carrigan emphasized that the Colorado Constitution dedicated natural streams 'to the use of the people,' and that judicial self-restraint requires leaving such policy changes to the General Assembly. He warned that the majority's decision, by creating a vested property right in stream water, would make it extremely difficult and expensive for the legislature to ever provide public recreational access, as it would require compensating landowners for a 'taking.'
Analysis:
This decision significantly curtails public recreational access to non-navigable waterways flowing through private property in Colorado, affirming riparian landowners' exclusive control over such waters. It reinforces a strict interpretation of common law property rights over potential public trust doctrines for recreational water use. The ruling places the burden on the state legislature to create public access rights, but arguably complicates such efforts by potentially establishing a compensable private property interest that would necessitate 'just compensation' under eminent domain for any future public use.
