The legalities of floating on Colorado Waters
One issue often faced by boaters and rafters, is where a property owner deliberately constructs some form of obstruction or undertakes some other action which prevents the continuation of the journey without having to portage around the obstruction.
In Colorado it is actually prima facie illegal for a landowner to string a strand of barbed wire across a river or to take any other action to prevent passage. Under 18-9-107 of the Colorado Revised Statutes the following offense is provided:
In simple terms, any obstruction intentionally erected which renders a waterway impassable constitutes an offence. It is the action which is intention, not the consequence. Therefore it would not be a defence to argue that the action was not intended to bring about a particular result. The action itself is sufficient.
The question therefore is how does one resolve the issue of a landowner deliberately constructing a hazard or barrier. Obviously if a farmer puts up a structure, such as a fence temporarily for containing cattle, and a rafter encounters it, if the farmer's action was inadvertent and not malevolent, he would, provided the rafter was reasonable accommodate portage. There would be no dispute.
But the question arises where a farmer deliberately with the intention of blocking a waterway, raises a structure. It might be a fence. It might be the headgate structure for an irrigation ditch which creates a big drop and dangerous hydraulics at certain water levels. It could be a diversion ditch. It can be anything which "renders" the object "impassable", "unreasonably inconvenient" or "hazardous" [see (2) above]. This would, in all likelihood, include changing the direction of the river which brings about the same result.
It also follows that if the structure has been erected with the intention of preventing rafting, it is most likely that the landowner will threaten legal proceedings for trespass if the rafter attempts to portage. This might be verbal. It might be a posted sign.
It is most likely a very small number of cases. Otherwise this issue would have already come up and a legal ruling promulgated.
So here is the scenario. A rafter, unaware of a structure ahead embarks on a float with the reasonable belief that the journey is safe and possible. The rafter then encounters a structure which blocks the passageway, and therefore is prima facie illegal. The evidence of the intention to block the waterway and to prevent passage by portaging, is manifested when the landowner challenges the rafter's right to portage despite the obvious impediment to the ongoing journey.
How can a rafter legally portage assuming that it is impossible to keep rafting? In addition to the right to portage generally which has already been discussed, there are a number of ways this might be achieved.
1. Implied consent?
In the case of a hazard which is dangerous and possibly life threatening, it would be argued that there is an implied consent. In other words, it is reasonable to assume that if the landowner was present he would grant consent to enable the portage to occur in order to avoid the hazard. Consent can be withdrawn expressly. Therefore if the landowner came down to the rafter as he was beginning to portage, the landowner, theoretically, could refuse to allow him to portage thereby withdrawing consent. In our example, this is going to be the case as for practically purposes if a rafter does complete the portaging before the landowner arrives on the scene, the debate, more than likely will be moot.
2. Consent imposed by law?
In the case of a landowner objecting to the portage, would the law intervene and impose upon the landowner an obligation to allow the portage? Alternatively, would the law grant a right to the rafter to be able to portage despite the landowners objections?
It might be argued that of necessity, the law will impose a remedy which persists so long as the necessity exists. This could be by way of a prescriptive easement of necessity. A prescriptive easement is hostile to the intent of the landowner. It is available only for the purpose of its creation. It would be an interesting creation of the law as usually prescriptive easements are not the same as easements of necessity. However it is a legal theory which might be developed.
A lesser interest is a license. A license is a personal interest in relation to land for a specific purpose. So in the present example, it might be argued that the landowner by his conduct has granted an implied license to a rafter to portage around a hazard. The landowner is unable to revoke the license until he makes specific provision to enable the rafter to be able to navigate down the river without having to portage to avoid the hazard. The creation of the license would arise from the conduct of the landowner, not from the need of the rafter to avoid a hazard. Otherwise, any rafter would try and argue that at any point that he needed to avoid a natural hazard, that he had a license to do so. In such a case, the rafter would have put himself in the position of having to have to portage and therefore bears the risk of having to trespass. It is the action of the landowner who creates the risk and therefore is taken to have impliedly granted the right to a rafter to avoid the hazard, portage around it, and not trespass on the landowner's property.
3. The inability of the landowner to raise trespass.
Essentially this discussion proceeds from the notion that those who seek equity must do equity. In other words, if a landowner erects an obstruction knowing or who reasonably should be expected to know that it will be impassable or provide a hazard, why should not the landowner be taken to have impliedly granted a right to a boater to be able to portage?
Furthermore, if a landowner, knowingly creates an obstruction which in reasonably foreseeable circumstances will require or at least may result in portage, on what ground could that landowner reasonably be able to complain of the resultant trespass which he has caused?
A landowner in these circumstances might sue for trespass or might seek an injuction restraining further floating. In a trespass action, the damages would be minimal. He might find an action in equitable estoppel preventing him making the claim for trespass. In any action seeking injunctive relief the court would deny him a remedy on the basis he has not come with clean hands. In other words those who seek equity, or the benefit of the court, must do equity.
This latter approach can exist separately from the right accruing to the rafter to be able to portage. It effectively prevents the landowner from raising any objection in the first place hence taking of the table an ability to argue that his property interests have been violated. It certainly imposes on the landowner the burden or demonstrating that his actions did not render the river "impassable, "hazardous" or "inconvenient" once the rafter establishes a prima facie case. It is also suggested that there is no objective standard by which something may be judged an obstruction because that will depend on the size of the craft, the load being carried and the ability of the rafter.
The other benefit of this approach is that it will be specific to each case and the surrounding facts and not bring into question larger issues such as property rights.
4. Advance knowledge.
This brings up a second discussion. If a rafter embarks upon a journey, knowing that a landowner has built a structure which is hazardous or impassable, will that knowledge deny the rafter the ability to be able to claim that he has a right to portage?
It is suggested that if a landowner has committed an illegal act in constructing a hazard in order to prevent rafting and a rafter has knowledge of it, that does not prevent the rafter from floating down the river. The question is whether the knowledge would enable a rafter to avail himself of the argument of implied consent when he knows the landowner is trying to prevent portage. Obviously in this instance, the consent has been revoked.
However, it is suggested that if the landowner has acted wrongfully and the law imposes a license to permit portage, that license will persist regardless of whether the rafter has knowledge prior to commencing the journey or not. Essentially, it would be inequitable for the landowner to knowingly maintain an illegal obstruction and then claim trespass even if the rafter has put himself in the position of having to portage. In other words, the only remedy for the landowner in such circumstances is to take all reasonable steps to remove the obstruction and thereby terminate the license. Alternatively, the landowner should make alternative provision to enable the ongoing passage without portage possible. While the obstruction persists, the license remains.
5. Other remedies.
It would appear that once a deliberate obstruction is known, there are 2 remedies. The first is to report the offense and then rely on the relevant authorities to take action to have it removed. The corp of engineers for instance might get involved and require the structure to be removed or modified to permit a passageway for floating purposes.
The second would be for a person having standing, such as a rafter, to bring a personal action for nuisance against the landowner and seek to have the structure removed.