Below you will find the full text of the Canatser Case Judicial Law recently passed by the Utah Supreme Court.
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2008 UT 48
This opinion is subject to revision before final
publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH
The Conatser Case - Regarding Waterway Access

—-oo0oo—-
Jodi Conatser, Kevin Conatser, No. 20060558
Lacey Conatser, and Nicole Mann,
Plaintiffs and Appellants,
v.
Wayne Johnson, Duane Johnson,
Randy Sessions, Michael McMillan,
Lynn Brown, Gerald Stout, John
and Jane Does 6-25, Clark Sessions, F I L E D
and Shane E. Matthews,
Defendants and Appellees. July 18, 2008
—
Second District, Morgan Dep’t
The Honorable Michael D. Lyon
No. 000500092
Attorneys: Gerald E. Nielson, Elizabeth A. Schulte, Robert H.
Hughes, Salt Lake City, for plaintiffs
Ronald G. Russell, Royce B. Covington, Salt Lake
City, for defendants
—
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 In this case, we must determine the scope of the
public’s easement in state waters. More specifically, we must
determine whether the easement, which allows the public to engage
in recreational activities in state waters, also allows the
public the right to touch the privately owned beds below those
waters.1
No. 20060558 2
¶2 Plaintiffs, the Conatsers, sought a declaration from
the district court that the public’s easement allows the public
to “touch or walk on the bottoms [of state waters] in nonobtrusive
ways.” The district court denied the Conatsers’ motion
for partial summary judgment on this issue, holding that the
scope of the public’s easement limits the Conatsers’ rights to
(1) being “upon the water” and (2) touching the privately owned
bed of the Weber River only as “incidental to the right of
floatation upon” the water. We reverse the district court’s
holding and, for the reasons detailed below, hold that the scope
of the public’s easement in state waters allows the public to
(1) engage in all recreational activities that utilize the water
and (2) touch privately owned beds of state waters in ways
incidental to all recreational rights provided for in the
easement.
BACKGROUND
¶3 The parties do not dispute the underlying facts in this
case. On or about June 4, 2000, the Conatsers put a rubber raft
in the Weber River at a public access point and began floating
down the river. While floating, the Conatsers crossed parcels of
private property belonging to the Johnsons and touched the river
bed in four ways: (1) the raft occasionally touched the shallow
parts of the river bottom, (2) the raft’s paddles occasionally
touched the river bottom, (3) the fishing tackle used by Kevin
Conatser touched the river bottom, and (4) Kevin Conatser
intentionally got out of the raft and touched the river bottom by
walking along it to fish and move fencing that the Johnsons had
strung across the river. 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. The Conatsers refused and continued
floating down the river. When they exited at a public access
point, the Morgan County Deputy Sheriff cited them for criminal
trespass.
¶4 The Morgan County Justice Court found the Conatsers
guilty of criminal trespass, and they appealed. The State
dismissed the charge, finding that there was “uncertainty
regarding the Conatsers’ status as trespassers.” While the
criminal case was pending, and due to the long-running dispute
between the Johnsons and the Conatsers, the Conatsers filed a
civil action in the Second District Court seeking a judicial
determination of their rights to use the Weber River. The
parties filed cross-motions for summary judgment on the issue of
the Conatsers’ right to touch the Weber River’s bed where the
river crosses the Johnsons’ property. In their motion for
partial summary judgment, the Conatsers argued that, as a matter
2 Utah Code Ann. § 73-1-1 (Supp. 2007); see also Adams v.
Portage Irrigation, Reservoir & Power Co., 72 P.2d 648, 652 (Utah
1937) (holding that waters in Utah are of two classes, private
and public, and title to public waters “is in the public; all are
equal owners; that is, have coequal rights therein”).
3 No. 20060558
of law, they were entitled to “recreate in natural public waters
. . . [which] includes the right to touch or walk upon the
bottoms of said waters in non-obtrusive ways.”
¶5 The district court denied this part of the motion,
concluding that the scope of the easement limited the Conatsers
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. Thus, 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.” (Emphasis added.) But “[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.” (Emphasis added.)
¶6 The Conatsers challenge the portion of the court’s
judgment that limits their right to touch the river’s bed only in
ways “incidental to the right of floating” and seek a declaration
that as “members of the general public,” they “have the right to
walk on the bed of the Weber River and wade in its waters.” We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j)
(2008).
ANALYSIS
¶7 Our analysis begins with a review of public ownership
rights in state waters and private ownership rights in the beds
that lie beneath those waters. We then review the district
court’s decision regarding the scope of the public’s easement in
state waters.
I. STATE WATERS ARE OWNED BY THE PUBLIC, WHICH HAS AN EASEMENT
TO USE THOSE WATERS, WHILE THE BEDS OF STATE WATERS MAY BE
PRIVATELY OWNED
¶8 By statute, “[a]ll waters in this state, whether above
or under the ground, are hereby declared to be the property of
the public, subject to all existing rights to the use thereof.”2
Under this “doctrine of public ownership,” the public owns state
waters and has an “easement over the water regardless of who owns
3 J.J.N.P. Co. v. State, 655 P.2d 1133, 1136 (Utah 1982).
4 Id.
5 Id. at 1137.
6 Id. at 1136.
7 Monroe v. State, 175 P.2d 759, 761 (Utah 1946) (quoting
Harrison v. Fite, 148 F. 781, 784 (8th Cir. 1906)).
8 J.J.N.P., 655 P.2d at 1137.
9 Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998).
10 Thompson v. Utah State Tax Comm’n, 2004 UT 107, ¶ 9, 112
P.3d 1205.
No. 20060558 4
the water bed beneath.”3 In granting the public this easement,
“state policy recognizes an interest of the public in the use of
state waters for recreational purposes.”4 This court has
enumerated the specific recreational rights that are within the
easement’s scope. They include the “right to float leisure
craft, hunt, fish, and participate in any lawful activity when
utilizing that water.”5
¶9 While the public owns state waters, the beds that lie
beneath those waters may be privately owned. And navigability is
the “standard used to determine title to” the beds of state
waters.6 If a body of water is navigable–that is, if it is
useful for commerce and has “practical usefulness to the public
as a public highway”–then the state owns the water’s bed.7 If
it is non-navigable, then its bed may be privately owned. The
public’s easement to use the water, however, exists
“[i]rrespective of the ownership of the bed and navigability of
the water.”8 In this case, then, navigability is relevant only
to establish: (1) that the Johnsons own the river bed at issue,
and (2) that the public has an easement to use the Weber River
where it crosses the Johnsons’ property. The question remaining
is this: what is the scope of that easement?
II. THE DISTRICT COURT INCORRECTLY INTERPRETED THE SCOPE OF THE
PUBLIC’S EASEMENT IN STATE WATERS
¶10 Determining the scope of an easement is a question of
law.9 And where issues on appeal are purely legal in nature, “we
review the district court’s decision for correctness, without
deference.”10 In this case, the district court made two
decisions that we will review. The district court interpreted
11 362 P.2d 137 (Wyo. 1961).
12 Id. at 140.
13 Id. at 145.
14 Id. at 147.
5 No. 20060558
the scope of the public’s easement as limiting the Conatsers’
rights to (1) being “upon the water” and (2) touching the
privately owned bed of the Weber River only in ways “incidental
to the right of floatation upon” the water. While the Conatsers
challenge only the latter decision, we must address both
decisions because the scope of incidental rights is dependent on
the scope of actual rights provided for in the easement. We will
address each of the district court’s decisions in turn.
A. The Scope of the Public’s Easement Allows the Public to
Engage in All Recreational Activities That Utilize the Water
¶11 The first relevant decision of the district court is
that the scope of the public’s easement to utilize state waters
for recreational purposes limits the Conatsers’ rights to being
“upon the water.” In arriving at this holding, the district
court relied on a Wyoming case, Day v. Armstrong.11
¶12 In Day, a member of the public sought a declaration
that he was entitled to fish “either from a boat floating upon
the river waters, or while wading the waters, or walking within
the well-defined channel of” the North Platte River where it
crossed privately owned land.12 The Wyoming Supreme Court denied
the plaintiff’s request to fish by any means other than floating,
reasoning that because waters are not “in trespass upon or over
the lands where they naturally appear, they are available for
such uses by the public of which they are capable. When waters
are able to float craft, they may be so used.”13 The Day court
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 . . . [including the
right to] hunt or fish or do any and all other things which are
not otherwise made unlawful.”14 Thus, the right to hunt, fish,
and engage in other lawful activities was modified by the right
to float. That is, they could be done only while floating and
only because floating occurred “upon” the water.
¶13 In this case, the district court adopted the precise
language of Day in limiting the Conatsers’ rights to being upon
the water, but it also ruled that the Conatsers’ use of the river
15 655 P.2d 1133 (Utah 1982). In J.J.N.P., a limited
partnership sought to build a private fish installation in state
waters claiming its rights in the water “based solely on its
ownership of the surrounding land.” We rejected J.J.N.P.’s
argument, reiterating that state waters are “the property of the
public.” Id. at 1136-37.
16 Id. at 1136.
17 Id. at 1137 (emphasis added).
No. 20060558 6
is limited to the bounds of the holding of J.J.N.P. Co. v.
State.15
¶14 In J.J.N.P., we interpreted the scope of the public’s
easement in Utah waters. While we referenced Day in recognizing
that the public has an easement “over the water regardless of who
owns the water beds beneath,”16 we did not adopt the language
that limits the easement’s scope to activities that can be
performed upon the water. Instead, we established our own rule
that the public has “the right to float leisure craft, hunt,
fish, and participate in any lawful activity when utilizing that
water.”17 The interpretive difference turns on a single,
significant word. Where Day limits the easement’s scope to
activities that can be performed “upon” the water, this court
expands the scope to recreational activities that “utilize” the
water. Thus, the rights of hunting, fishing, and participating
in any lawful activity are coequal with the right of floating and
are not modified or limited by floating, as they are in Day.
¶15 The district court erred in adopting the limiting
language of Day. We now clarify that the scope of the public’s
easement in state waters provides the public the right to engage
in all recreational activities that utilize the water and does
not limit the public to activities that can be performed upon the
water.
B. Touching the Beds of State Waters Is Incidental to All
Recreational Rights Provided for in the Easement
¶16 Having established the actual rights provided for in
the easement, we next address the scope of incidental rights.
Specifically, we review the district court’s decision that the
Conatsers may touch the river’s bed only in ways incidental to
the right of floatation and that any “use of the streambed [that]
is more than incidental to the right of floating . . . would
constitute a trespass.” In reaching this conclusion, the
district court again relied on and adopted the language of Day.
18 362 P.2d at 145-46.
19 Id.
20 Id.
21 655 P.2d at 1138 n.6.
22 25 Am. Jur. 2d Easements and Licenses in Real Property
§ 1 (2007).
23 Id.
7 No. 20060558
¶17 Because the Day court narrowly interpreted the scope of
the easement to activities that could be performed upon the
water, it also determined that the incidental right to touch the
water’s bed was similarly limited. Thus, the Day court held that
while floating, the public may “scrape[] or touch[]” the river’s
“bed or channel.”18 And “as a necessary incident to the full
enjoyment of the public’s easement,” the public may “disembark
and pull, push or carry over shoals, riffles and rapids” their
floating conveyance.19 But, “where the use of the bed or channel
is more than incidental to the right of floating . . . such
wading or walking is a trespass upon lands belonging to a
riparian owner and is unlawful.”20
¶18 The district court adopted this language to limit the
Conatsers’ right to touch the river’s bed only as incidental to
the right of floatation. And while Day’s limitation is
reasonable given that court’s narrow interpretation of the
easement’s scope, it is not reasonable given the scope of the
easement we established in J.J.N.P.
¶19 Because the issue of incidental rights was not before
us in J.J.N.P., we did not reach it: “As to whether the public
has an easement in the beds of streams and lakes, we express no
opinion.”21 The issue is now properly before us, and we hold
that the public has the right to touch privately owned beds of
state waters in ways incidental to all recreational rights
provided for in the easement.
¶20 “An easement is a privilege which one person has a
right to enjoy over the land of another.”22 Therefore, an
easement “gives rise to two distinct property interests: a
‘dominant estate,’ that has [the] right to use land of another,
and a ‘servient estate,’ that permits the exercise of that
use.”23 Because there are two parties’ interests involved,
“[t]he right of the easement owner and the right of the land24
Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148,
158 (Utah 1946) (internal quotation marks omitted).
25 25 Am. Jur. 2d Easements and Licenses in Real Property
§ 81 (2004).
26 Big Cottonwood Tanner Ditch Co., 174 P.2d at 160.
No. 20060558 8
owner are not absolute, irrelative, and uncontrolled, but are so
limited, each by the other, that there may be a due and
reasonable enjoyment of both.”24
¶21 The easement holder also enjoys “the privilege to do
such acts as are necessary to make effective his or her enjoyment
of the easement.”25 That is, an 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.”26
¶22 The question before us is whether the incidental right
of touching the water’s bed is reasonably necessary for the
effective enjoyment of the public’s easement and does not cause
unnecessary injury to the landowner.
¶23 First, touching the water’s bed is reasonably necessary
and convenient for the effective enjoyment of the public’s
easement. The public has the right to float, hunt, fish, and
participate in all lawful activities that utilize state waters.
The practical reality is that the public cannot effectively enjoy
its right to “utilize” the water to engage in recreational
activities without touching the water’s bed.
¶24 In its holding, the district court recognized that
touching the river’s bed may be “a necessary incident” to
utilizing the water to float. It may be just as necessary,
however, when utilizing the water to hunt or fish. The Conatsers
urge this court to take judicial notice of the fact “that people
engaged in fishing often do so by wading into the water itself,
walking up or downstream in pursuit of a favorable spot.” We
agree that touching the water’s bed is a common action in fishing
and that it is reasonably necessary for the effective enjoyment
of it. The same is true for hunting.
¶25 In addition to the enumerated rights of floating,
hunting, and fishing, the public may engage in any lawful
activity that utilizes the water. In many cases, touching the
water’s bed is reasonably necessary for the effective enjoyment
27 Id.
9 No. 20060558
of those activities. Swimming and wading, for example, are
lawful activities that utilize the water but cannot be
effectively enjoyed or even practically accomplished without
touching the water’s bed.
¶26 Having determined that touching the water’s bed is
reasonably necessary for the effective enjoyment of all the
rights provided for in the easement, the next question is whether
such touching causes unnecessary injury to landowners. We hold
that it does not.
¶27 As noted, an easement holder must make use of his
easement “in a reasonable manner” and in a way that does not
“cause unnecessary injury to the servient owners.”27 In this
case, the Johnsons and every private landowner to whom the
easement applies are subject to the reasonable burdens imposed by
the easement. These burdens include the public’s right to both
travel over private property when floating and to touch the
water’s bed while floating. Touching a water’s bed in
association with other easement rights is merely part of the
existing burden–it is not an additional burden and thus is not
more injurious to landowners. If the public’s use does cause
unnecessary injury to the landowner, that use is beyond the
easement’s scope.
¶28 There are, in fact, several limitations on the public
that protect a landowner’s interests. First, the public may
engage only in lawful recreational activities. Second, those
activities must utilize the water. Where utilizing the water is
not the purpose, the activity is beyond the scope of the
easement. Third, as noted, the public must act reasonably in
touching the water’s bed. Finally, the public may not cause
unnecessary injury to the landowner. If the public acts beyond
these strictures, it has exceeded the scope of the easement.
CONCLUSION
¶29 The district court incorrectly interpreted the scope of
the public’s easement in state waters so as to limit the
Conatsers’ rights to being upon the water and to touching the
privately owned bed of the Weber River only in ways incidental to
the right of floatation.
¶30 We hold that the scope of the easement provides the
public the right to float, hunt, fish, and participate in all
lawful activities that utilize the water. We further hold that
No. 20060558 10
the public has the right to touch privately owned beds of state
waters in ways incidental to all recreational rights provided for
in the easement, so long as they do so reasonably and cause no
unnecessary injury to the landowner.
—
¶31 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.