The legalities of floating on Colorado Waters
The right to fish as a proprietary interest
The right to fish might be claimed as a public right. But it might equally be claimed as a personal right and inherent in that personal right is the ability to claim exclusive access to a particular property to exercise that right.
It should be noted that for the purposes of this discussion the "right to fish" refers to a recreational rather than a commercial right. There are a number of reasons for considering this distinction. First commercial fishing might in fact be the basis for asserting and succeeding in a claim of commercial activity. This in itself would justify navigability. In addition, if the definition of navigability for a particular state does not include the right to recreation, that may limit recreational fishing even though commercial fishing is permitted. On the other hand recreational rights will include the right to fish subject to state regulations.
So far this all assumes that the right to fish recreationally is not a separate right. This might not be a correct assumption. What if the right to fish is capable of being excised from the right to recreate? In that case, the right of recreational navigation might exist separately from the right to fish.
This is the point which arose in Kraft v. Burr, 476 S.E.2d 715, 719 (1996) where the court drew a distinction between the right to fish and the right to navigate. It did not simply say that fishing is an incidental right of navigation.
In Virginia, the U.S. Army Corps of Engineers started acquiring land in 1967 following the 1946 Legislative approval for the construction of the Garthright dam. Construction began in 1968. Garthright Dam created Lake Moomaw and provided cold, oxygen-rich releases in the Jackson River waters below the dam, creating ideal trout habitat. As a consequence interest grew in fishing the area. The river was stocked and as the sale of licenses grew the stocking program generated what has become one of Virginia's premier fishing areas.
The landowners contested this stretch of the Jackson river in a series of cases which started out with the Court denying navigability [ Boerner v. McCallister 197 Va. 169, 89 S.E.2d 23, 27 (Vir. 1955)] then agreeing to navigability [Loving v. Alexander, 745 F. 2d 861, 1984 U.S. App. LEXIS 17955 (1984)] and then more recently acknowledging navigability but denying the right to fish [ Kraft v. Burr, 476 S.E.2d 715, 719 (1996)].
The first 2 cases did not concentrate on the right to fish as distinct from the question of navigability. In the Boerner decision there was dicta which indicated that floating over private land was limited to navigation and not the incidental right to fish.
In the case of publicly owned waterway and riverbeds, the right to fish in Virginia subject to state regulation is well established. [See Cox, W. E. and K. A. Agrow. Public Recreation on Virginia’s Inland Streams. Cox, W. E. Public Recreational Rights on Virginia’s Inland Streams. Special Report ]
The Kraft v. Burr [supra] decision considered the original land grants of June 1, 1750, in which King George II granted William Jackson 270 acres of land along the Jackson River. This grant expressly conveyed property on both sides of the river, the streambed, and the “privileges of fishing, hunting, hawking and fowling.” By a 4-3 majority the Court ruled that these grants were sufficient in these instances to grant exclusive rights to fish in the subject waters. Thereafter with a very generous reading of the conveyances it was concluded that the present landowners had obtained the same rights and therefore could prevent the public from fishing on the waters. The decision is limited to the 4 claimants in the case. Therefore any other landowners claiming exclusive fishing rights would have to prove that their respective original titles granted the same rights and that the rights were preserved in subsequent conveyances.
However the case does make the point that possibly the right to fish is not necessarily part and parcel of the right of recreation. If the right to hunt and fish is severable from other incidental rights, persons who can establish and original grant and the subsequent preservation of the right might be able to prevail even though there is a general right to recreate.
However, the difficulty seems to be that if the water itself is owned by the public, how can the right to use that public asset be severed by the state and alienated to a specific individual or group of individuals. This is the issue which has arisen in the West, for instance in Utah, Wyoming and Montana where the ownership of the water was sufficient to grant to the public a right to use it. And the use included fishing by varying degrees.
It appears that the distinction between Virginia and Western states, is that in Virginia there was minimal regulation of water usage until recently because it was so abundant and water was on accessed on a first come first served basis. There was no constitutional framework as in the Western States.
This gives rise to a separate question and that is whether there is in fact a common law right to fish which, in the absence of legislation to the contrary or a specifically alienated right as the the Kraft v. Burr case it is possible to claim that right.
Common law right to fish.
The general rule is well established by the authorities that the right to fish in a stream, whether belonging to the public in common or exclusively to the owners of the land bordering the stream is determined by the ownership of the bed. [Supreme Court of Illinois in Schulte v. Warren, 218 Ill. 108, (1905), 75 N.E. 783 ]. Consequently the bed of a stream or lake held for the public grants to the public the right "for the purpose of fishing or boating and the like."[ibid].
Similarly, in Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 4 L.R. A. (N.S.) 872, the Supreme Court of Colorado held that at common law the exclusive right to fish in a stream above the ebb and flow of the tide belongs to the adjoining landowner as an incident of his ownership of the bed of the stream. However the correctness of the decision in Hartman v. Tresise is questionable and will be discussed below.
Ownership of fish.
The ownership of fish and the right to catch them are bound up in similar questions. Even though the public might be considered the owner of fish in a stream, the right to catch and take the fish will still be subject to the police power of regulation. In the absence of any regulation wild animals, birds and fish which are ferra naturae are not capable of being owned until they are subject to the control of an individual by capture. At that point they become the property of the hunter.
However it is open to the public to exercise the right to regulate the manner in which, when, how and if the game can be taken by members of the public. So determining that a species is protected, nominating a season, limiting the size of the take or otherwise regulating the taking of game and the licensing the hunter is all part of the legitimate police power of the state in controlling and regulating the taking and management of wild game.
Consequently, if fish are considered public property, it is open to the state to regulate and control the manner of their being taken. Therefore, if there is a right to take the game, it will be subject to any regulation which the state decides to impose, if any.
In California, where land is public land, the right to fish is public regardless of whether the water is navigable or not [People v. Truckee Lumber Co., 116 Cal. 397 (1897), 48 P. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183].[ see also People v. Stafford Packing Co., supra, 193 Cal. at page 724, recognized the “necessity and importance of conserving the wild game and fish of this state for the benefit of the people of the state,”See also, e.g., Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 937-938 & fn. 4; People v. Perez (1996) 51 Cal.App.4th 1168, 1177-1178; People v. Glenn Colusa Irrigation Dist., 127 Cal. App. 30, 34-35, 38 (1932) (enjoining as an unreasonable use the unscreened diversion of water from Sacramento River that killed numerous fish) People v. Murrison, 101 Cal.App.4th 349, 360 (2002) (“The state owns the fish in its streams in trust for the public.”);.
In a similar vein in Montana in Herrin v. Sutherland, 74 Mont. 587, 241 P. 328, 331, 42 A.L.R. 937, with citation of cases from several states, the Court indicated that the right of fishing in all waters, the title to which is in the public, belongs to all the public in common. It then, after pointing out that the state of Montana is the owner of all land below the water of a navigable stream, concluded: 'Perforce, then, the waters above the bed or channel of a navigable stream at low water mark are public waters, and in this the public have a right to fish.'
Consequences of the right to fish.
The tension between the public having an unlimited right to fish and the benefit to the fish population from having areas where they are not pursued will always be a subject of debate.
If there is an unlimited right to fish it will have several consequences which might be detrimental.
First, the obvious issue of over fishing. Authorities can take it upon themselves to replenish stocks of fish with hatchery raised trout where the right to take is present. This is obviously beneficial for those who like to take fish and also beneficial for the state hatcheries whose raison d'etre is to raise fish and release them.
However there are arguments against allowing that to be too extensive where there is a desire to maintain indigenous species in the wild and a population which can sustain itself. This then gets into a number of issues which are beyond the scope of this writing. Suffice to say, that there is a great benefit to allow species to live in an uninterrupted state where possible to at least maintain the wild population.
This then gets to the question whether it is desirable to permit property owners to retain the right to fish for themselves or at least limit access to property by limiting the numbers of fishermen and charging a fee. It could easily be argued that this would provide a sanctuary environment in some places where it would be beneficial for the surrounding fishing and for the fish.
Consequently when the issue comes for decision there is not an overwhelming public policy in favor of everyone having the right to fish everywhere. There is a necessary balance which must be sought recognizing the private rights and interests of individuals as well as the interests of the public.
There is an interesting discussion in Free Market Environmentalism by Terry L. Anderson and Donald R. Leal 2001 Palgrave, addressing the virtues of fisheries being controlled by private individuals in the UK and a comparison with the same instances in the US and then a consideration of the state of public fisheries. It certainly raises thoughtful questions concerning the preservation of good quality fisheries.
In Colorado in the Supreme Court in the Hartman v Tresise 36 Colo 146; 84 P. 685; (1906) the question concerned the ability of the defendant to rely upon an enactment of 1903 to stand on private property and fish. The enactment was in the following terms"
"That the public shall have the right to fish in any stream in this state, stocked at public expense, subject to actions in trespass for any damage done property along the bank of any such stream".[Session Laws 1903, p 233 ]
The majority held that the legislative enactment was unconstitutional as, inter alia, it constituted a taking for which no compensation had been paid.
One difficulty was the concession by the defendant, inter alia, that the "owner of lands along a non-navigable fresh water stream, as an incident of such ownership, owns the bed of the stream and the exclusive right of fishery therein to the middle thereof,; and if he owns the lander bordering upon both sides, he has the exclusive right of fishing in the entire stream, to the extent that if flows through his lands" [ibid]
The problem with this concession is that it is wrong. The owner of land might own the bed of the stream, but if the public owns the water that flows over it, the public cannot be excluded from the public water provided they do not trespass on the underlying land.
Bailey J in a strong dissent addressed this specific point and indicated that where land belongs to one party and water to another the right to fish follows the ownership of the water. Thereafter he referred to Section 5 of the Colorado constitution and concluded that it obviously rendered the water of all natural streams in Colorado public prior to appropriation.
Bailey J found that the right of the public to fish in a public fishery persisted and that therefore given that prior to appropriation the water in natural streams belonged to the public, the public had a right to fish.
He also indicated that the right to fish followed the ownership of the water, not the navigability of the stream. [ibid]
So these competing views set up a difficult argument. For instance, if the owner of land claims all rights to that land and the right to fish is a severable and enforceable right, how can he sustain that right to fish when the water is owned by the public. Is the actual right to fish severable from the water? And if the water is public water and an incident of that ownership is the right to fish, how can the owner of the land separately negotiate away a right which is a public right? This creates a dilemma for those seeking to rely on Kraft v Burr [supra] where the water is owned by the public and it is not easily answered.
Please note that these notes are only the opinion of the author on the law in Colorado and are not therefore determinative of the issue. In the event that for whatever reason it is necessary to explore these issues further, the reader should obtain appropriate legal advice.