People v. Emmert
597 P.2d 1025, 198 Colo. 137, 6 A.L.R. 4th 1016 (1979)
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Rule of Law:
The owner of land bordering a non-navigable stream owns the stream bed and the exclusive right to use the waters overlying it for recreational purposes, and members of the public who float or fish on such waters without consent commit criminal trespass.
Facts:
- On July 3, 1976, defendants Emmert, Taylor, and Wilson entered the Colorado River from public land for a float-trip downstream.
- The Colorado River flows westerly and bisects the ranch of the Ritschard Cattle Company, varying in depth as it passes through.
- The defendants used rafts with leg-holes to extend their legs into the water, touching the riverbed from time to time to control their rafts as they floated through the Ritschard ranch.
- The defendants did not leave their rafts or encroach upon the shoreline, banks, or islands owned by the Ritschard Cattle Company.
- Defendants Taylor and Wilson had previously been warned that they did not have permission to float through the Ritschard ranch.
- The Ritschard Cattle Company owned the land on both sides of the river where the incident occurred, and the river had been posted with no-trespassing signs.
- Con Ritschard and his foreman extended a single strand of barbed wire eight to ten inches above the water across the river at their private bridge, specifically to impede the defendants.
- The Colorado River at this location is non-navigable and had not historically been used for commercial or trade purposes, although it had been used by recreational floaters despite the Ritschards' objections.
Procedural Posture:
- Con Ritschard and his foreman told defendants Taylor and Wilson they were trespassing on private property when they reached the Ritschard private bridge.
- A deputy sheriff arrived and placed the defendants under arrest at the bridge.
- The defendants were subsequently charged with third-degree criminal trespass under section 18-4-504, C.R.S. 1973.
- The trial court, sitting without a jury, found the defendants guilty of third-degree criminal trespass.
- The defendants-appellants appealed their conviction to the Supreme Court of Colorado.
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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 property owner's consent?
Opinions:
Majority - MR. JUSTICE LEE
No, the public does not 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 the owner's consent. The court reaffirms the general rule of property law in Colorado that the land underlying non-navigable streams is subject to private ownership, vesting in riparian landowners the exclusive right to control the stream bed and the space above it. This common law principle, cujus est solum, ejus est usque ad coelum (he who owns the surface of the ground has the exclusive right to everything which is above it), means that anyone intruding upon this space without permission, whether for fishing or floating, commits trespass. The court rejects the argument that Article XVI, Section 5, which declares unappropriated waters to be public property subject to appropriation, creates a public right to recreational use, interpreting this provision as primarily intended to preserve Colorado's historical appropriation system for water rights, not to grant public access for recreation. The court declines to follow trends in other states allowing public recreational use, emphasizing the long-standing common law recognition in Colorado and deferring any change in such established legal precedent to the General Assembly. Legislative enactments, such as agreements for public hunting/fishing areas, liability limitations for landowners opening land for recreation, and criminal trespass statutes, are cited as evidence of legislative recognition of landowners' rights to control access to streams on their property. The court specifically notes the 1977 clarification of 'premises' in the trespass statute to include 'stream banks and beds of any non-navigable fresh water streams flowing through such real property.'
Dissenting - MR. JUSTICE GROVES
No, the majority's interpretation of Article XVI, Section 5 of the Colorado Constitution is too narrow and misconstrues its meaning. The provision states that waters of every natural stream are 'the property of the public, and the same is dedicated to the use of the people of the state,' and the clause 'subject to appropriation' acts as a caveat establishing the superiority of appropriation for beneficial use, not a limitation on other public uses. Justice Groves argues that the constitutional language clearly dictates a public right to use these waters and that Hartman v. Tresise, relied upon by the majority, is distinguishable because it concerned trespass to land (banks and beds) and its statements regarding appropriation were dicta, not binding precedent for water surface use. He also questions applying the ancient cujus est solum common law doctrine, formulated in different circumstances, to water rights in a state with an appropriation system. Given contemporary concerns for recreational resources, a broad interpretation of public rights is warranted.
Dissenting - MR. JUSTICE CARRIGAN
No, the majority is wrong to decide a broad constitutional issue when narrower grounds (e.g., the defendants touching the stream bed) might have sufficed for the trespass conviction, thus rendering much of the opinion dicta. Justice Carrigan argues that the ancient feudal principle cujus est solum, ejus est usque ad coelum has no place in modern Colorado, noting that the U.S. Supreme Court abandoned it as obsolete in United States v. Causby. Applying this rule leads to absurd results, such as prosecuting people for using airspace. He asserts that the framers of Article XVI, Section 5, intended to dedicate natural streams 'to the use of the people of the state' for all uses, including recreation, and were not elitists. He emphasizes that legislative action, with its capacity for balancing competing interests through regulation and licensing, would be the appropriate method for addressing public access to waterways. The majority's decision, by creating a vested property right in stream water, complicates future legislative efforts by requiring 'just compensation' for public access.
Analysis:
This case significantly restricted public recreational access to non-navigable streams flowing through private land in Colorado. By upholding the common law doctrine of cujus est solum, the court reinforced private property rights over public recreational use, contrasting with trends in other western states. The ruling effectively shifted the burden to the legislature to create public access, with the added complexity that any such legislation might now require compensation to landowners for the 'taking' of a newly recognized property right, potentially making future public access efforts more difficult and costly.
