Hartman v. Tresise

Mr. Justice Campbell

delivered the opinion of the court:

The conclusion reached by the trial court is not tenable. The section of the constitution relied upon declares the unappropriated waters of our natural streams to be the property of the public, and dedicates the same to the use of the people of the state, subject to appropriation, as in that instrument provided; and the following section provides that the right to divert the same to beneficial uses shall never be denied. It is this right of appropriation which the general government has recognized and confirmed, and subject to which its grants of public lands in the arid states since 1866 have been made. But neither in this nor in any other clause of our constitution, nor in any act of congress, is the right.of fishery in the natural streams of this state, or an easement over the public domain for its enjoyment, declared to be, or recognized as vested in the state; nor has any authority to grant the same to its . citizens been conferred upon the state .or claimed by it, except in the statute cited. This does assume to grant such right, and it is upon this alone, if-at all, that defendant can justify. That this act is void for at least two reasons, we proceed show.

If the state, when formed, might have exercised authority in disposing of the public domain therein situate, it was relinquished, for, in our enabling’ act, 1 Mills’ Ann. Stats., pages 90, 91, 109, it was specifically provided, as one of the conditions precedent to the right of the people of our territory to form a state, that they should, and complying therewith they did, by irrevocable ordinance,'disclaim all right and title to public lands within the territory, and expressly recognized the exclusive right of congress to dispose of the same. That congress has such exclusive right has been expressly decided. — Wilcox v. Jackson, 13 Peters, *517.

When our constitution was adopted, the United States owned the lands which, after ratification, it conveyed to the plaintiff. Whatever rights and title therein it o-wned passed to the plaintiff, unless excepted or reserved in the instrument of conveyance, or by some act of congress. Plaintiff took and held the same, subject, of course1, to the right of appropriation just noted, and he holds it subject, also, to 'the state taxation laws, the laws of eminent domain and other statutory regulations, to which the owners of all property are amenable. But the power of the state is not so comprehensive as to enable it, without compensation to the owner of lands, to' take any part of them from him and give them to another citizen, and no act of congress authorized, nor did plaintiff’s patent contain, any reservation of any public right of fishery, or of any éasement over his lands to enable the public to enjoy such right.

Defendant concedes that, at the common law— and the authorities so hold — the owner of lands which, border on a navigable river, above the ebb and flow of the tide, and the owner of lands along a non-navigable fresh water stream, as an incident of snch ownership, owns the bed of the stream and the exclusive right of fishery therein to the middle thereof; and if he owns the land bordering upon both sides, he has the exclusive right of fishing in the entire stream, to the extent that it flows through Ids lands. — Holyoke Co. v. Lyman, 15 Wall. 500; 13 Am. & Eng. Enc. Law (2d ed.) 565 et seq.; New England Trout Club v. Mather, 68 Vt. 338; Albright v. Cortright, 64 N. J. Law 330; Rockefeller v. Lamora, 83 N. Y. Supp. 289; Griffith v. Holman, 23 Wash. 347; 3 Washburn on Real Property (4th ed.) 187, 191, and authorities cited.

As between those claiming a right of the same character — that is, a public right of fishery and a private right of fishery — this doctrine of the common law, being of a general nature, is just as applicable in Colorado' as elsewhere. Necessity does not furnish a basis for the right of public fishery upon which, it is said in Yunker v. Nichols, 1 Colo. 551, rests the dominant right of one land owner in this state to build a conduit over the lands of another, in order to get water from the stream to irrigate agTicultural lands. Of course, as between those claiming either a public or private right of fishery in our natural streams, and those asserting the superior constitutional right of appropriation, the latter, in case of conflict, must prevail. But the rights here in controversy are both of the same character and subject to the common law rule of decision. Gen. Stats. 1883, sec. 197. Plaintiff owns lands bordering on both banks of natural streams. As between him and the defendant, he owns, the right of fishery in their waters within his outer boundaries. As between them, plaintiff also owns the beds of the streams just as much as he owns the adjacent hanks or the soil anywhere within his surface lines. It necessarily follows that defendant has no- right of fishery within plaintiff’s enclosure.

But if he does, he certainly has no- easment over any portion of plaintiff’s property, either in the beds of the streams or the adjacent soil, for the purpose of reaching the streams. In the enjoyment of his private property plaintiff is protected, both by federal law and the state constitution, against encroachment by defendant. Neither the state nor an individual nqr a corporation to whom the right of eminent domain is delegated, can take private property for public use without just compensation; much less can the state, without any compensation at all, take the private property of one, and give it to another citizen to be enjoyed by the latter for a mere private use. The legislature cannot make lawful a trespass by one man upon the lands of another,.by providing that, if any damage is thereby done, a recovery therefor may be had. That is just what our general assembly by its statute has attempted. But the act contravenes the provisions of section 15 of article 2 of our state constitution, and is clearly in conflict with the laws of congress relating to the disposition of the public domain.

The judgment of the district court is reversed and the cause remanded "with instructions to the district court to. enter a judgment favorable to plaintiff.

Reversed.