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In Conatser v Johnson, the Supreme Court of Utah ruled that the public's easement in state waters includes the right to utilize the water for any recreational activity and to touch privately-owned river beds in connection with those activities. On appeal, the state supreme court noted that an easement holder has the right to make incidental uses beyond the express easement if the uses are necessary for enjoyment of the easement and do not unreasonably injure the servient estate. The court thus concluded that the Conatsers had the right to touch and walk upon the privately owned river bed in any way reasonably incidental to utilizing the water.

The Supreme Court of Utah ruled that the public's easement in state waters includes the right to utilize the water for any recreational activity and to touch privately-owned river beds in connection with those activities.

In 2000, Jodi and Kevin Conatser entered the Weber River at a public access point in Morgan County and began floating down the river on a raft. While floating, the Conatsers made physical contact with the privately-owned river bed in several ways, including walking along the river bottom to fish. When the Conatsers crossed property owned by Wayne and Duane Johnson, the Johnsons ordered them off the river. The Conatsers refused and continued floating, and the county sheriff later cited them for criminal trespass when they exited the river. While the criminal case, which was dismissed on appeal, was pending, the Conatsers filed a civil suit seeking a declaration that the public easement in state waters included the right to touch or walk upon the bottoms of public waters in unobtrusive ways. The trial court found that the easement was limited to the right to float upon the water and to touch the river bed only in ways "incidental to the right of floatation." Specifically, the court held that wading or walking along the river bed constituted a trespass of private property. The Conatsers appealed.

On appeal, the state supreme court first held that the public's easement was not limited to activities that could be performed upon the water, but instead extended to any activity utilizing the water, including fishing and wading. The court then noted that an easement holder has the right to make incidental uses beyond the express easement if the uses are necessary for enjoyment of the easement and do not unreasonably injure the servient estate. The court found that walking along the river bottom is necessary to utilize the water for several authorized activities, such as swimming and fishing. In addition, because the public's right to touch the river bed is included in the existing burden of the easement, it does not unnecessarily injure the private landowners, according to the court. The court thus concluded that the Conatsers had the right to touch and walk upon the privately owned river bed in any way reasonably incidental to utilizing the water. The trial court decision was reversed.

Conatser v. Johnson

Supreme Court of Utah

July 18, 2008

2008 WL 2776716 (Utah 2008)