Utah Stream v. VR Acquisitions, 531 P.3d 195

Background

Utah Stream Access Coalition (USAC) sued VR Acquisitions and the State after USAC members were cited for trespass for wading the Provo River where it crosses private property; USAC challenged the Public Waters Access Act (PWAA) as violating the Utah Constitution and federal common law.
In Conatser v. Johnson the Utah Supreme Court (using modern common-law principles) recognized a public easement to use and, when necessary, touch privately owned beds of state waters. The Legislature then enacted the PWAA to limit such access.
On initial trial the district court (accepting Conatser easement as a state interest) held the PWAA unconstitutional under article XX; this Court in USAC I reversed and remanded, instructing the district court to decide the threshold historical question whether a Conatser-type easement had a 19th‑century legal basis at the time Utah framed its constitution.
On remand the district court reopened discovery, accepted USAC’s historical facts (widespread 19th‑century public use of streambeds) but granted summary judgment to VR and the State, concluding USAC failed to identify any applicable 19th‑century legal source that would have created such an easement.
The Supreme Court affirmed: the threshold question is a mixed question of law and fact; USAC presented historical evidence but no controlling 19th‑century legal authority (e.g., dedication, prescription, condemnation, or a recognized easement-by-custom) that would have created the Conatser easement at statehood; federal patent and water‑law materials cited by USAC did not establish the easement either.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a 19th‑century legal basis existed for the Conatser easement (public right to touch private streambeds)	Conatser reflects rights rooted in territorial/state practice and later caselaw shows a trajectory from Adams → J.J.N.P. → Conatser; customs and practices evidence a historical easement	No 19th‑century legal source existed; at that time public rights were created only by condemnation, dedication, or prescription (Harkness); easement‑by‑custom was disfavored and federal patents passed title free of encumbrances	Held for defendants — USAC failed to identify a 19th‑century legal basis for the Conatser easement
Whether disputed factual issues precluded summary judgment	USAC: experts and historical sources create genuine disputes of material fact over history and practice	VR & State: district court accepted USAC’s historical facts as true; the question is legal — USAC points to no legal standard from the 19th century, so no material factual dispute can avoid summary judgment	Held for defendants — threshold is mixed question; district court properly concluded no genuine dispute of material fact barred summary judgment
Whether 19th‑century communal customs, trespass statutes, or official practices established an easement	Customs/practices, lack of trespass prosecutions, fish stocking, and official statements show an affirmative public right-of-way	Customs and non‑enforcement are evidence of use but not legal sources for an easement; absence of trespass statutes does not create a right to cross private land; case law presumes permissive use	Held for defendants — customs, practice, and sparse trespass laws are insufficient as legal sources to create an easement
Whether 19th‑century federal law or land patents made private lands subject to a public streambed easement	Federal statutes (Mining Act, Desert Land Act) and doctrines concerning water rights meant patents were subject to vested water rights and public water use	Federal law addressed water appropriation or reserved water rights but did not create a burden on land in the form of a public right to touch streambeds; patents conveyed title free of such encumbrances	Held for defendants — cited federal laws and patent doctrines do not establish a 19th‑century Conatser easement

Key Cases Cited

Conatser v. Johnson, 194 P.3d 897 (recognition—under modern common‑law principles—of public right to touch privately owned streambeds)
Utah Stream Access Coal. v. VR Acquisitions, LLC (USAC I), 439 P.3d 593 (remand instruction: determine whether Conatser easement had a 19th‑century historical legal basis)
J.J.N.P. Co. v. State, 655 P.2d 1133 (acknowledgement of public easement to use waters irrespective of bed ownership)
Harkness v. Woodmansee, 26 P. 291 (articulates late‑19th‑century framework that public rights‑of‑way arise by condemnation, dedication, or prescription)
Adams v. Portage Irrigation, Reservoir & Power Co., 72 P.2d 648 (early statement about public ownership/use of flowing water)
Shiver v. United States, 159 U.S. 491 (federal law on land title transfer and patents conveying title free of encumbrances)
Wilcox v. Jackson ex dem. McConnel, 38 U.S. 498 (federal decisions on patent title implications)
Hawke v. Deffenbach, 22 N.W. 480 (federal/territorial authority regarding land titles and encumbrances)