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

----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

1 We use the term “touch” to encompass all aspects of

touching, including walking and standing on the privately owned

beds of state waters.

¶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 non-

obtrusive 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

No. 20060558 2

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

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

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

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 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

11 362 P.2d 137 (Wyo. 1961).

12 Id. at 140.

13 Id. at 145.

14 Id. at 147.

5 No. 20060558

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.

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

¶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 land

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

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

24 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

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

27 Id.

9 No. 20060558

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.

No. 20060558 10