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I’m sure this has been covered before, but what is the legality of property owners in Colorado running lines across the river to prevent float access?
 

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This is about as clear as mud legally in CO. We are a "navigable waterway can be floated" state which is the "if you can float it, you can boat it" argument. As soon as you step on river bank or river bottom you are trespassing. You would think that a dangerous obstacle made by a land owner would negate this, but I do not believe it does.

The underlying laws need clarification and to be defined in court to get a clear decision or to understand your options on that particular stretch would be my guess.


 

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I believe a loophole to the "clear as mud laws" is that a property owner can place a fence across the river to keep livestock either in or out. Perhaps @jimmoss might see this and weigh in.
 

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Not legal....or at least according to this reasoned Opinion that forms the basis for the stance and am not aware of any action to codify, revise, or re-interpret it. But this hasn't been challenged in court yet either, to my knowledge. Though this letter seems pretty commonly cited in disputes between Colorado landowners and rafters/tubers/etc from a cursory Googling, but am not a lawyer nor up-to-date on any statutory changes, etc.

Colorado Attorney General Opinion of 1983

Hamlet J. Barry III
Acting Executive Director
Department of Natural Resources
1313 Sherman St., Room 718
Denver, CO 80203

RE: Purpose and effect of C.R.S. 1973, 18-4-504.5 (1978 repl. Vol. 8)

AG Alpha No. NR AD AGALA
AG File No. ONR8303042/KW

August 31, 1983

Dear Mr. Barry:

I am writing in response to your June 13, 1983 request for a formal legal opinion concerning the purpose and effect of C.R.S. 1973, 18-4-504.5 (1978 repl. vol. 8). Your request discloses that some riparian landowners and law enforcement officials are of the opinion that this statute authorizes private property owners to prohibit rafting or other floating on rivers and streams crossing private land, and subjects river users to criminal trespass prosecutions if they float through private property without first securing the owner's permission. You have requested clarification of the intent and effect of this law with respect to such use of the state's waterways.

QUESTION PRESENTED AND CONCLUSION

Your inquiry raises to related questions:

First, does C.R.S. 1973, 18-4-504.5 (1978 repl. vol. 8), expose persons who float or boat on Colorado rivers and streams to criminal trespass prosecution if they float across private lands, provided that they do not touch the river bank or river bed?

Second, does that provision authorize adjoining landowners to prohibit or otherwise control such floating or boating?

I conclude on both questions that it does not.

The intent, purpose, and effect of section 18-4-504.5 is to protect adjoining property owners from trespasses to the banks and beds of streams and exempt those who float upon the state's waterways from criminal trespass liability. Since the statute speaks only to criminal trespass, it does not address the question of civil remedies and therefore cannot be view as providing authority for private owners of stream banks and beds to prevent such use of the water.

ANALYSIS

In 1977, the general assembly added to the criminal code a definition of "premises" applicable to the second and third degree criminal trespass statutes, C.R.S. 1973, 18-4-503, -504 (1978 repl. vol. 8). 1977 Colo. Sess. Laws 977 sec. 1, codified at C.R.S. 1973, 18-4-504.5 (1978 repl. vol. 8). Section 18-4-504.5 provides:

As used in sections 18-4-503 and 18-4-504, "premises" means real property, buildings, and other improvements thereon, and the stream banks and beds of any non-navigable fresh water streams flowing through such real property.

Your inquiry raises the issue whether the inclusion within "premises" of "the stream banks and beds of any nonnavigable fresh water streams" also includes the waters flowing within those streams and/or the air through and under which they pass. In other words, is the air or flowing water itself subject to criminal trespass when it is intruded upon in the process of floating a "craft" (of whatever description), and the passenger(s) thereon do not encroach in any way upon the privately owned real estate through and over which they pass?

A very similar issue was addressed by the Colorado Supreme Court in People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979), which involved an appeal of third degree criminal trespass convictions pre-dating passage of section 18-4-504.5. Defendants had floated and fished from rafts over private property on the Colorado River, and had touched the river bed as they crossed that property. At the time of Emmert defendants' arrest and conviction, the state had no statutory definition of "premises." Applying the common law rule of "cujus est solum, ejus est usque ad coelum" (he who owns the surface controls everything above it), the court concluded that ownership of the stream beds included ownership of the space above those beds. Therefore, one who "breaks the close" by intruding upon that space commits a trespass. 198 Colo. at 141, 597 P.2d 1027. See also C.R.S. 1973, 41-1-107.

Since the Emmert defendants had admittedly intruded upon the privately owned real estate by touching the river bed, the convictions could have been affirmed on that ground, and the court's discussion of the "ad coelum" doctrine was at least arguably dictum. See, e.g. 198 Colo. at 146, 147, 597 P.2d at 1031, 1032 (dissenting opinions of Groves, J., and Carrigan, J.). Assuming, however, that the majority intended its discussion to have the effect of a holding, the question then becomes whether and to what extent section 18-4-504.5 changes the law of trespass with respect to floating on the state's waterways.

In its opinion, the Emmert majority specifically noted that "it is within the competence of the General Assembly to modify rules of common law within constitutional parameters." 198 Colo. at 141, 597 P.2d 1027. This is consistent with both statutory and decisional authorities.

The common law prevails in this state only by virtue of its adoption into the law of the state by legislative enactment. It may be repealed, without violating our Constitution, by our general assembly at any time it chooses to do so .... The legislature may at any time by a legislative act, repeal any part of the common law either expressly or by passage of an act inconsistent therewith on any particular subject.

Colorado State Board of Pharmacy v. Hallett, 88 Colo. 331, 335, 296 P. 540, 542 (1931). Accord C.R.S. 1973, 2-4-211 (1980); Vogts v. Guerrette, 142 Colo. 527, 533-34, 351 P.2d 851, 855 (1960); Shoemaker v. Mountain States Tel. & Tel. Co., 38 Colo. App. 321, 323, 559 P.2d 721, 723 (1976); see People ex rel. Thomas v. Goddard, 8 Colo. 432, 7 P. 301 (1885).

The legislative definition of "premises" in section 18-4-504.5 is limited to real property, improvements, and stream banks and beds and does not expressly include either waters or airspace. As a general rule, "words and phrases found in statutes are to be construed according to their familiar and generally accepted meaning." Harding v. Industrial Commission, 183 Colo. 52, 59, 515 P.2d 95, 98 (1973); accord C.R.S. 1973, 2-4-1-1. In common usage and understanding, "banks and beds" refers to the real property confining and defining a watercourse, but not to the water itself. See 1 W. Hutchins, Water Rights Laws in the Nineteen Western States, 39-42 (1971) (discussing meaning of "beds" and "banks").

Moreover, a familiar rule of statutory construction provide that where the legislature has included certain items in a statute and excluded others, it will be assumed, absent strong evidence to the contrary, that the exclusion was intentional, and the law will not be interpreted to extent to the omitted items. See, e.g., Patrolman's Benevolent Association v. New York, 41 N.Y.2d 205, 391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976). Had the general assembly intended to include the waters of nonnavigable streams within its definition of "premises," it would have been a simple matter to make that intent manifest. The fact that it did not do so indicates an absence of such an intent. E.g., In re Petition of U.M. v. District Court, 631 P.2d 156, 167 (Colo. 1981).

The language of section 18-4-504.5 itself, therefore, leads to the conclusion that the definition of "premises" was restricted to real property and does not include either the waters of streams or the airspace above private property. The statute then would repeal "ad coelum" in the criminal trespass context, and would reverse the Emmert result in the situation your question hypothesizes, i.e., where persons float over private property but do not touch the river bed or banks.

This straightforward analysis of the question is, however, complicated in the instant case by a somewhat cryptic reference to section 18-4-504.5 by the Emmert majority, which noted that section 18-4-504.5 had "clarified the meaning of the word 'premises'...." Id. at 144, 597 P.2d at 1029. The court apparently found support in the statute for its conclusion "that the waters of this state are not unrestrictedly open to the public." 198 Colo. at 143, 597 P.2d 1029. Justice Carrigan, in a dissenting opinion, found in the same provision "/c/lear evidence that the legislation did not intend water flowing in a stream to be subject to trespass.... Although 'stream banks and beds' are included on the list /of real property interest/, water in the streams is excluded from it." Id. at 149, 597 P.2d at 1033.

The majority did not analyze or interpret section 18-4-504.5. Since it was enacted after the Emmert defendants' arrest and conviction, it could not apply to that decision and the court's reference to it was clearly dictum. Nonetheless, that reference is sufficiently unclear that it is appropriate to go beyond the language of the statute itself to discern the legislative intent.

A fundamental rule of statutory construction is "that legislative intent must be ascertained, and given effect if possible." In re Petition of U.M., supra, 631 P.2d at 167. "/R/elevant consideration in arriving at the correct construction include the object sought to be attained and the consequences of a particular construction." Id.; C.R.S. 1973, 2-4-203 (1) (a), (e) (1978 repl. vol. 18). In determining legislative intent, the legislative history of a statute is an important tool. Among the sources of legislative history that have been utilized by Colorado courts are successive drafts of a bill, Haines, v. Colorado State Personnel Board, 39 Colo. App. 459, 461-62, 566 P.2d 1089, 1090 (1977), and tapes of committee hearings, People v. Luciano, supra, 662 P.2d at 482 n. 4; Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072, 1075 n. 1 (Colo. 1982).

An examination of the legislative history of section 18-4-504.5 reveals quite clearly that the intent of the legislature was to protect riparian landowners from trespasses to the privately owned banks and beds of streams, while insuring that those who float or boat upon those streams without intruding on real property would not be liable for a criminal trespass. As originally introduced, the bill (1977 S.B. 360) defined "premises" to include the "channels and beds of any nonnavigable fresh water streams." (Emphasis added.) The word "channels" was deleted and "stream banks" inserted expressly to exclude any possible coverage of the waters of such streams, and to limit the provision to the real property of the banks and beds. This change was made precisely in order to avoid any interpretation that recreational use of the state's waterways for floating and boating would constitute a criminal trespass.

In proposing the amendment substituting "stream banks" for "channels," Senator Kinnie, the bill's primary sponsor, explained:

Originally the Bill read "channels," Mr. Chairman, and that raises some question to some people that that might mean the water of these streams, and so I am offering the language "stream banks" so that there's no inference to the water.

....

This ... will not stop tubing, canoeing or boating on the water, but will give the property owners the help of law enforcement officials against a few people bent on causing trouble ....

... It simply makes it a criminal trespass to loiter on the stream banks, as the Bill is now, or on the stream beds. If they want to canoe or tube or stay on the water, not bother the properties, why there would be no problem.

Transcript, Senate Committee of the Whole Hearing on Second Reading of S.B. 360, March 31, at 2, 3, 4,. See also Transcript, Senate Committee Hearing on S.B. 360, March 22, 1977, at 8 ("the intent of the law is just to make sure ... they stay on the water"), 18 ("/w/e are not addressing the stream itself"), 20 ("if they stay in the boat, they are all right"), 25 ("if the guy was riding on the water and wasn't on the bed of the stream, then he wouldn't be in violation of the law").

This amendment was also discussed by the House Judiciary Committee. The change was explained as follows:

The interpretation of "channels," as I understand it, by some of the members of the Senate, meant the water' and we are not talking about the water, we are talking about the stream beds, the real property in this case. So that's why it was amended and "stream beds" was put on there rather than "channels," so we don't confuse the issue with water.

....

... This is not to interfere with ... [the] right to go down the creek or the river.

Transcript, House Judiciary Committee Hearing on Senate Bill 360, April 15, 1977, at 2-3.

In short, the intent of the legislature in enacting section 18-4-504.5 was unequivocal: to protect private property owners from trespass to the banks and beds of streams while insuring that the public's use of the waters of those streams for floating would not come within the criminal code's prohibitions.

As was noted above, the supreme court acknowledged in Emmert the authority of the general assembly to alter or repeal the "ad coelum" doctrine and to define "premises" in a way that excludes the waters of the state's streams. It is my conclusion that this is precisely what the general assembly did in section 18-4-504.5 . By enacting a statute defining the term "premises" in a manner inconsistent with "ad coelum," the legislature has effectively repealed, for the purposes of the criminal trespass statutes, the common law rule applied by the Emmert court. By limiting the term to real estate, the legislature has insured that neither the state's waterways nor the air through and under which they pass are subject to criminal trespass.

Section 18-4-504.5, therefore, would reverse the Emmert result in the circumstances your question hypothesizes. The act of floating over privately owned stream beds upon the rivers and streams of the state, without intruding upon banks or beds, does not constitute trespass within the provisions of the criminal code. The essential element of entering or remaining in or upon premises is missing. C.R.S. 1973 18-4-503, -504 (1978 repl. vol. 8).

The answer to your second question is inherent in the above discussion. Section 18-4-504.5 decriminalized floating and boating over privately owned stream beds. That statute, therefore, does not authorize either law enforcement officials or the owners of stream beds or of adjoining property to prohibit such activities.

SUMMARY

In conclusion, it is my opinion that one who floats upon the waters of a river or stream over or through private property, without touching the stream banks or beds, does not commit a criminal trespass, because the essential element of entering or remaining in or upon "premises," which includes banks or beds but excludes waters, is missing. Because section 18-4-504.5 speaks to criminal trespass and does not address civil remedies, it cannot be viewed as authorizing the owners of stream banks and beds to prohibit or otherwise control the use for floating of waters passing over their lands.

Very truly yours,

DUANE WOODARD
Attorney General
 

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All states have laws addressing the private use of devices intend to prevent entry or theft through means of physical entrapment or physical harm, aka boobytraps. Such acts are criminal in nature and thus require cooperation of LE and the DA. Stringing a line is easy. Making a report is easy. Getting law enforcement officers to view it as a trap and submit charges to the district attorney, not easy. And it gets harder.

In court, prosecutors have to prove intent of entrapment or physical harm, which in the case of a "livestock fence", is nearly impossible. Perhaps I'm cynical but DA's are not interested in chasing rabbits and somebody will have to die before we see changes to law. It would be helpful if said person were young and adorable.
 

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Some interpret a stream as the area between mean high water lines. If the grades are flat and the catchment is large, this can mean an awful lot of acreage is covered. Some states like to extend their Police Powers over flood plains, wetlands, stream bottoms, woodlands "and as far as we can throw an axe," or maybe further. Oregon is a prime example; a state where a 4-generation family farm or a Century Farm's ownership is all but meaningless. The State will never surrender one iota of its Police Powers peacefully or willingly. The only hope the populace has of maintaining Peace and Order is to keep their heads down and quietly submit. I would far rather allow boaters across my land, or sk a neighbor if I could freely cross his land, than to live in a world fully controlled by The State, by Dominance of The Collective. The State, by its very definition, has no recognition of Right and Wrong. We are better off to yield a bit, honor each other, be generous and "love the neighbor, Hell! Leave the poor bastard alone."
Having lost my own land to The State, I go from this to a search for a small lake I used to fish about 50 years ago. I hope the present owners will be as generous as generations past, but I rather doubt it.
 

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I have no problem with a rancher/ homeowner who runs livestock to fence across the river during low water to keep said livestock on his property. BUT, you gotta pull that fence during rafting season/high water because from personal experience, a wire fence across a river is a total death trap. No one died but they easily could have if they got tangled up in the fence in heavy current. Last time down the lower Piedra I had to cut two river wide fences, had two swimmers as a result of the first fence and lost a severely damaged damaged raft. ( It was recovered.) Note to Mr Landowner, why can’t you simply rig the fence like a third world gate where a loops of wire holds one end of the gate, simply release the upper loop, pull the fence across the river in say late March/ early April so rafters can do their thing and put the fence back when runoff is over. Lots easier for you (you don’t have to rebuild your fence) and the added bonus that no one died because of your fence. I hate to say it but my opinion is that until there are fatalities and lawsuits this is not gonna change in Colorado. Solution is simple and takes virtually no time to create and maintain. WTF ???
 

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I have no problem with a rancher/ homeowner who runs livestock to fence across the river during low water to keep said livestock on his property. BUT, you gotta pull that fence during rafting season/high water because from personal experience, a wire fence across a river is a total death trap. No one died but they easily could have if they got tangled up in the fence in heavy current. Last time down the lower Piedra I had to cut two river wide fences, had two swimmers as a result of the first fence and lost a severely damaged damaged raft. ( It was recovered.) Note to Mr Landowner, why can’t you simply rig the fence like a third world gate where a loops of wire holds one end of the gate, simply release the upper loop, pull the fence across the river in say late March/ early April so rafters can do their thing and put the fence back when runoff is over. Lots easier for you (you don’t have to rebuild your fence) and the added bonus that no one died because of your fence. I hate to say it but my opinion is that until there are fatalities and lawsuits this is not gonna change in Colorado. Solution is simple and takes virtually no time to create and maintain. WTF ???
Sometimes a man's education has to cost someone his life. And the ranch goes away with it. I know that makes no difference to the landowner, because he clings to his dreams instead of seeking out reality. He may be a nice guy or he may be an ashoal. There'll come a day when someone comes to his door with an envelope, and says "You have been served" or words to that effect. All his defenses will come crashing down and the next 5-10 years will be bloody Hell for two families because one fool didn't want to hear about it until it bit him in the butt. One accident, and one good lawyer, and it's all gone because he didn't listen. Poetic? At times. Or it can be the plaintiff who is the ashole. Sometimes the plaintiff gets a lawyer without conscience who will take every nickel he has. I've seen that happen when a bad man brought suit against a good man. It was Hell for both families, but at least nobody died over it. Maybe should have though. Our courts are courts of law, not of justice. And people's fantasies do not serve them well in the dock.
 

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I’m sure this has been covered before, but what is the legality of property owners in Colorado running lines across the river to prevent float access?
The landowner should be aware that having a fatality or serious injury, especially one that is so predictable, is far, far, far better to be had on somebody else's land. You do NOT want the suit, attractive nuisance, judgements etc. There is NO good outcome. Get used to that FACT. Tell the boaters they are trespassing, but then make their passage as safe as you possibly can and be nice about it. If you think its your water, build a big dam to hold it, and wait. The State will disabuse you of your naivette in no uncertain terms. NObody wins a pissing contest. You may have "rights," but the State has Power. And where you have flowing water, it's a lot cheaper to help people get on through, and that, safely.
 

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This is about as clear as mud legally in CO. We are a "navigable waterway can be floated" state which is the "if you can float it, you can boat it" argument. As soon as you step on river bank or river bottom you are trespassing. You would think that a dangerous obstacle made by a land owner would negate this, but I do not believe it does.

The underlying laws need clarification and to be defined in court to get a clear decision or to understand your options on that particular stretch would be my guess.


But ... can you afford to be the one to do it?
 

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If the landowner knows or should have known that people would try to cross his property and that his structure or the design of his structure would or could present a hazard to those people, especially if they had historically accessed the stream, he better back a train full of money up to his lawyer's offices. If he's a lawyer himself, he's just being foolish. Danmed foolish.
 

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I guess us private property owners should just let everyone with a desire cross/ use our property?
You don’t own the river or that water, maybe some flow rights, but not every cfs unless you are pre Colorado river compact (assuming CO land).

I respect private property and understand that usage causes issues from poor river runners, but if it floats you can boat it in this state until prosecuted otherwise.
 

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Colorado Recreational Use Statue (CRUS) could be relative here. Again, up to court interpretation. US Circuit Court of Appeals 2019 ruling, while affirming CRUS, says land owners have immunity from liability "unless they act willfully in failing to guard or warn of known dangerous conditions that are likely to cause harm."

So...does a landowner putting wire across the river plus a warning sign count as suitable warning of hazard? Or does constructing a impediment across the river, a "navigable waterway" cause a dangerous condition which cannot be mitigated by any warning.

Here's a perspective written by Jason Blevins, thoughtful and frequent contributor to Colorado outdoor recreation news:
https://coloradosun.com/2021/09/13/colorado-recreational-use-statute-landowner-liablity-trinchera-fourteener/
 

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I guess us private property owners should just let everyone with a desire cross/ use our property?
If it has a navigable waterway or historical right of way, hell yes! Don't like it, don't buy it.
The Uncompahgre cuts through my property; all respectful dickheads are welcome to boat through.
It's called not being an asshole!
 

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The fences made of hanging pvc tubes are genius. I floated through one on the upper Dolores a few years back and thought it seemed like the perfect solution. I wish you would see more.

Just a wild thought, but maybe someone (AW?) could contact landowners and offer this as a solution. I'm guessing there would be enough volunteers to bring the materials and help install if that helps achieve an agreement....

Water Plant Water resources Sky Boats and boating--Equipment and supplies
 

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Colorado Recreational Use Statue (CRUS) could be relative here. Again, up to court interpretation. US Circuit Court of Appeals 2019 ruling, while affirming CRUS, says land owners have immunity from liability "unless they act willfully in failing to guard or warn of known dangerous conditions that are likely to cause harm."

So...does a landowner putting wire across the river plus a warning sign count as suitable warning of hazard? Or does constructing a impediment across the river, a "navigable waterway" cause a dangerous condition which cannot be mitigated by any warning.

Here's a perspective written by Jason Blevins, thoughtful and frequent contributor to Colorado outdoor recreation news:
https://coloradosun.com/2021/09/13/colorado-recreational-use-statute-landowner-liablity-trinchera-fourteener/
Interesting. So, if a landowner puts up a barrier across a navigable waterway and posts warning signage (or not) what would one be expected to do? If you get out to portage said barrier you are Definitely trespassing. What a lose-lose situation. Better put the warning signs at any possible put-ins
 
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