Nov 05, 2020 Gifts of Providence: How an 1881 Help-Wanted ad won a 21st century Utah Supreme Court case

By Tina Kirkham

For most of Utah’s history, it was understood that rivers and streams are public resources—even when they may run through private land. The state Supreme Court codified this understanding into law in 2008, when it unanimously upheld the right to fish a one-mile stretch of the Weber River that crossed private land in Summit County (Conatser v. Johnson, Utah, July 18, 2008 [20060558]).

Newspaper items such as this one from the Deseret News on December 28, 1881, undergirded the USAC’s argument that the Weber River was used as a “highway of commerce” prior to statehood. More than 3.6 million pages from Utah newspapers, 1850-2019, are freely searchable in Utah Digital Newspapers.

The landowner in the case argued that—while paddlers and others may have a right to float through privately-owned property—they should be prohibited from stepping out of their crafts. That is, the river bed was an extension of the landowner’s property, and stepping onto it should be considered trespassing.

The Court, however, found for the plaintiffs, confirming a public easement and the right to “float, hunt, fish, and participate in all lawful activities that utilize the water…and to touch privately-owned beds of state waters…so long as they do so reasonably and cause no unnecessary injury to the landowner.”

In 2010, the state legislature passed HB141, which limited these public-usage rights to “navigable rivers used as highways of commerce.” HB141’s purpose was to benefit private landowners by excluding smaller streams and rivers from the earlier ruling. They argued that only rivers that had had a commercial use at the time of statehood should be subject to the easement confirmed in Conatser v. Johnson.

“The news articles gave us a critical window into the how, when, where and how many of the log drives. I don’t think we would have won the case without the news articles, and I know we would not have found the news articles without UDN.” —USAC Attorney Cullen Battle

Landowners sought to prevent river users from stepping on the stream bed where it crossed private property. The state Supreme Court ruled against them. Photo courtesy The Salt Lake Tribune

In response to the passage of HB141, the Utah Stream Access Coalition (USAC)—an all-volunteer non-profit organization—brought suit to expand and protect public recreational rights. In Utah Stream Access Coalition v. James Fuller Park, et al., the USAC had to prove that the Weber River had been navigable and used as a “highway of commerce” prior to statehood.

Thanks to Marriott Library’s digitized newspaper repository, Utah Digital Newspapers (UDN), the USAC was able to conclusively show that the Weber River had been used to transport railroad ties and mine-prop timbers as early as the Spring of 1877.

Undated photo showing prop timbers in the Ontario silver mine, Park City, Utah. Image courtesy of the Utah State Historical Society.

USAC’s researchers eventually identified more than 30 newspaper items that discuss the use of the Weber River to transport timbers from the Uintah Mountains near Holiday Park to Wanship and Echo—wood that was used to extend railroads and secure mine tunnels. According to USAC Board Member Bert Ley, one ad in particular proved highly persuasive, contributing to what District Court Judge Keith Kelly referred to as a “mountain of evidence” supporting the plaintiffs’ case.

The 1881 ad seeks a small army of 100 laborers, showing that it was not a small, family-run endeavor. It clearly states the work to be done:  “To cut ties…on Weber River and its branches.” Further, the ad shows that the laborers would be paid (“For contracts…”) and that the timber would be used by the Union Pacific Railway—proving that the activity was a commercial venture.

In November 2017, following an appeal from the District Court, the Utah Supreme Court also ruled in USAC’s favor, confirming the public’s right to fish, float, wade, and otherwise recreate on the upper Weber River anywhere it flowed—through private as well as public land. The ruling emphasized that the public must approach the river through legitimate access points, such as rights of way and Walk-In Access parcels.

Starting in 1877, logs were floated downstream from the Weber River’s headwaters near Oakley north to Wanship and Echo. The logs were used as railroad ties, mine-prop timbers, and cordwood.

“The rivers and streams of our state are gifts of providence, and the lifeblood of this arid land…Our rivers are part of our heritage, and have been useful to all Utahans since statehood.” —Former USAC President Kris Olson

NOTES

1. Regulations for recreational access along the Upper Weber River, Utah Division of Wildlife Resources, accessed on 10-26-2020 at https://wildlife.utah.gov/index.php/special-weber-river-rules.html
2. UTAH 1895 COUNTY MAPS From Rand McNally’s U.S. Atlas, 1895, edited by Pam Reitsch for the Livingston County, Michigan, USGenWeb project, accessed on 11-10-2020 at http://www.usgwarchives.net/maps/utah/images/summitut.jpg
3. “Public access on Weber River hinges on pioneer log drives,” by Brian Maffly, The Salt Lake Tribune, March 7, 2015, accessed on 10-26-2020 at https://archive.sltrib.com/article.php?id=2249924&itype=CMSID
4. “Utah Supreme Court Issues Stay, Allows Landowners to Restrict Stream Access,” by Josh Parks. Field and Stream, March 1, 2016, accessed on 10-26-2020 at https://www.fieldandstream.com/blogs/field-notes/utah-supreme-court-issues-stay-allows-landowners-to-restrict-stream-access/
5. “Public Interest Group Files Second Suit to Restore Access to Utah’s Rivers and Streams,” USAC Web Site, May 6, 2011, accessed on 11-04-2020 at https://utahstreamaccess.org/navigability-case/
6. Ontario Mines-Interior P.13, Utah Department of Heritage and Arts Classified Photographs, accessed on 11-05-2020 at https://collections.lib.utah.edu/ark:/87278/s6r504fj