J.J.N.P. COMPANY, a Utah corporation, Plaintiff and Appellant, v. STATE of Utah, By and Through its DIVISION OF WILDLIFE RESOURCES, Defendant and Respondent.
No. 17183.
Supreme Court of Utah.
Sept. 22, 1982.
655 P.2d 1133
PER CURIAM:
In Hardy v. Morris, Utah, 636 P.2d 473 (1981), we dismissed the appeal of a defendant who had escaped from custody, reasoning that a ruling adverse to the appellant could not be enforced because he had placed himself outside the control of the judicial system. That holding does not define whether or when such an appeal can be reinstated.
In this case, appellant filed a timely notice of appeal after conviction and sentence for aggravated kidnapping, aggravated robbery, and unlawful taking of a motor vehicle. Five months after he commenced serving his sentence in the Utah State Penitentiary, on August 7, 1981, appellant escaped. On motion of the State, on September 21, 1981, this Court dismissed appellant‘s appeal on the authority of Hardy v. Morris, supra. Thereafter, appellant was recaptured in Idaho and reincarcerated in the Penitentiary on March 23, 1982. Appellant now moves to reinstate his appeal.
By escaping and remaining at large until he was involuntarily returned to custody, appellant abandoned his appeal and now stands in the same position as if no appeal had been taken. Mitchell v. State, Fla.App., 294 So.2d 395 (1974); Weser v. State, 224 Kan. 272, 579 P.2d 1214 (1978); United States v. Smith, 544 F.2d 832 (5th Cir.1977). In this circumstance, an appeal dismissed prior to his return to custody will not be reinstated.
This action violates no right under the
Motion denied.
Robert B. Hansen, Richard Dewsnup, Dallin W. Jensen, Michael M. Quealy, Salt Lake City, for defendant and respondent.
STEWART, Justice:
J.J.N.P. Co. brought this action challenging, on equal protection grounds, the constitutionality of
J.J.N.P., a limited partnership created under the laws of Utah, owns approximately 1200 acres in Lake Canyon, Duchesne County. Lake Canyon Lake is a natural lake surrounded on all sides by property owned by J.J.N.P. The lake is approximately 800 yards long and 200 yards wide, with a mean depth of 17 feet and a maximum depth of 33 feet. The lake is fed by natural springs in its bed and a small stream approximately 24 to 36 inches wide and 3 inches deep at full course, with headwaters approximately six miles above the lake on State land. A stream of similar size flows intermittently out of the lake during high water levels for approximately 300 yards before it disappears into the ground.
Prior to 1978, the State had an agreement with J.J.N.P.‘s predecessors in interest allowing public access to the lake across their land.2 The State managed the lake, eliminated trash fish, stocked trout, and set and enforced fishing seasons and limits. When this agreement expired, J.J.N.P. filed an application with the Division of Wildlife Resources for a permit for a private fish installation. The Division denied the application pursuant to
Seven miles below Lake Canyon Lake is another natural lake known as “Lower Lake” which sustains a private fish installation. At trial, Donald Andriano, Chief of Fisheries for the Division of Wildlife Resources, testified that the initial permit authorizing this fishery was issued before the Legislature enacted
A gravel road extends from the mouth of Lake Canyon past Lake Canyon Lake to U.S. Forest Service lands. For more than ten years, Duchesne County graded and maintained the road for public use. J.J.N.P. attempted to restrict access to its
I. RIGHTS IN PUBLIC WATERS
The State in its counterclaim asserts that Lake Canyon Lake is navigable and therefore subject to a public servitude for recreational use. Although “navigability” is a standard used to determine title to waterbeds, Monroe v. State, 111 Utah 1, 175 P.2d 759 (1946), it does not establish the extent of the State‘s interest in the waters of the State. See Comment, Basis for the Legal Establishment of a Public Right of Recreation in Utah‘s “Non-Navigable” Waters, 5 J.Contemp.L. 95 (1978).
The State regulates the use of the water, in effect, as trustee for the benefit of the people. Tanner v. Bacon, 103 Utah 494, 516, 136 P.2d 957, 966-967 (1943) (Larson, J., concurring). Accord Day v. Armstrong, Wyo., 362 P.2d 137 (1961); see also Ne-Bo-Shone Association v. Hogarth, 7 F.Supp. 885 (W.D.Mich.1934), aff‘d, 81 F.2d 70 (6th Cir.1936). Public ownership is founded on the principle that water, a scarce and essential resource in this area of the country, is indispensable to the welfare of all the people; and the State must therefore assume the responsibility of allocating the use of water for the benefit and welfare of the people of the State as a whole. The doctrine of public ownership is the basis upon which the State regulates the use of water for the benefit and well being of the people. Marks v. Whitney, 6 Cal.3d 251, 491 P.2d 374, 98 Cal.Rptr. 790 (1971).
A corollary of the proposition that the public owns the water is the rule that there is a public easement over the water regardless of who owns the water beds beneath the water. Therefore, public waters do not trespass in areas where they naturally appear, and the public does not trespass when upon such waters. Day v. Armstrong, Wyo., 362 P.2d 137 (1961). Furthermore, state policy recognizes an interest of the public in the use of state waters for recreational purposes by requiring that recreational uses be considered by the State Engineer before he approves an application for appropriation,
In effect J.J.N.P. claims rights in Lake Canyon Lake based solely on its ownership of the surrounding land. It has no right of appropriation granted by the State Engineer. To permit the acquisition of water rights in the manner claimed would violate the public ownership doctrine and the state statutes regulating appropriation. State water law excludes every means of appropriation except by application to the State Engineer.
II. EQUAL PROTECTION
J.J.N.P. attacks
As part of its equal protection argument, J.J.N.P. contends that the State must show a compelling state interest to justify a discrimination between natural and unnatural watercourses. The argument is without merit. A compelling state interest need be demonstrated only when the discrimination affects fundamental rights or when suspect classifications are involved. Utah Public Employees’ Association v. State, Utah, 610 P.2d 1272 (1980). The building or maintaining of a private fish installation on public water is not a fundamental right, and the restriction of such installations to manmade watercourses is not a suspect classification.
When neither a fundamental right nor a suspect classification is involved, equal protection requires that statutory classifications bear a reasonable relation to the purpose sought to be accomplished and that there be a reasonable basis for the distinction between the classes. Classifications are not unreasonable or arbitrary as long as similarly situated people are dealt with in a similar manner and people situated differently are not treated as if their circumstances were the same. Abrahamsen v. Industrial Commission, 3 Utah 2d 289, 283 P.2d 213 (1955); State v. Mason, 94 Utah 501, 78 P.2d 920 (1938). Legislative classifications need not be applied with mathematical exactness. Baker v. Matheson, Utah, 607 P.2d 233 (1979). A classification may be reasonable even though some inequality results. Crowder v. Salt Lake County, Utah, 552 P.2d 646 (1976). Thus,
A presumption of constitutionality is extended to statutes not affecting fundamental rights or based on suspect classifications, and that presumption is sufficient to sustain the constitutionality of the classification created by a statute unless the classification creates an invidious discrimination or bears no rational relationship to a legitimate state purpose. Baker v. Matheson, Utah, 607 P.2d 233 (1979); Purdie v. University of Utah, Utah, 584 P.2d 831 (1978); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).
In prohibiting private fish installations on natural watercourses,
Furthermore, J.J.N.P. is in a different position than parties who operate private fish installations on unnatural watercourses. For water to reach unnatural watercourses it must be appropriated and diverted. Appropriated water is to be used for the purposes stated in the application. J.J.N.P. has limited water rights in the water,5 but it does not own the water in the lake even though the lake is surrounded by J.J.N.P. land.
J.J.N.P.‘s further contention that the fish installation on Lower Lake violates its right to equal protection is also unpersuasive.
J.J.N.P. also argues that
could prohibit all overland access to Lake Canyon Lake. However, access to bodies or streams of water is not necessary to the securing of certain legitimate state interests, such as the protection of wildlife. Furthermore, remote bodies of water are now accessible by air.
The contention that the State wrongfully denied J.J.N.P.‘s application for a permit is not supportable.
III. THE DIRT ROAD
The trial court concluded that the dirt road through Lake Canyon was a public road. J.J.N.P. does not challenge the correctness of that conclusion, but rather contends that the trial court should not have decided the issue since it was not raised on the pleadings. Although the issue was not properly pleaded, the record plainly indicates that both parties litigated the issue of the road. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. . . . [F]ailure so to amend does not affect the result of the trial of these issues.” Rule 15(b), U.R.Civ.P. Treating actually litigated issues as if they had been properly pleaded serves the ends of justice, whether the pleadings are actually amended or not. First Security Bank of Utah v. Colonial Ford, Utah, 597 P.2d 859 (1979). Since the issue was tried by mutual consent, there was no error in deciding the issue.
Affirmed. No costs.
OAKS, and HOWE, JJ., and J. HARLAN BURNS, District Judge, concur.
DURHAM, J., does not participate herein; BURNS, District Judge, sat.
HALL, Chief Justice (dissenting):
The majority opinion fails to delineate a legitimate state purpose for distinguishing natural lakes and streams from manmade watercourses and, indeed, it appears that there is none.
The controversy in this case arose when plaintiff decided not to continue the lease to the State by which its predecessors in interest granted access to the public across their land during the winter months for ice fishing. Since the public no longer had any access to the lake, the Division refused to stock the water with fish. Plaintiff then undertook to stock the lake, and applied to the Division for permission to do so. But because the lake is natural, only the Division has the right to stock the waters with fish. Pursuant to the provisions of
I am unable to determine that the statute promotes any public purpose. As acknowledged by Mr. Andriano in his testimony before the court, the sole reason for the statutory enactment was to afford the public a right to fish the natural lakes of this state. Notwithstanding the worthiness of that purpose, application of the statute in the instant case does not provide the public with a fishing site that would otherwise be unavailable. The public has a right to fish these waters, but the right is not absolute. The public must first gain lawful access to the waters without trespassing upon the land in private ownership.
Plaintiff has asserted its common law right to keep its private property private, which it has every right to do. The right to private property is one of our oldest and most cherished rights, and is protected against unauthorized invasion by the State by the
There is no issue here concerning the possibility of polluting the public waters or of the introduction of trash fish into the waters. The Division has power to regulate all private fish installations under the statute and plaintiff does not contend that it would escape regulation because of its ownership of the land surrounding the lake.
The majority opinion initially acknowledges that the waters in question are the property of the public but thereafter erroneously asserts that the State is the owner of the waters and as owner the State has the right to prevent private citizens from using the public waters for private uses. The State is not the owner of public waters; the ownership is in the public itself. As members of the public, the owners of plaintiff corporation cannot be deprived of making use of the public waters, as long as such use does not interfere with prior rights to use such water.
I am of the view that the statute fails as it does not promote any legitimate state purpose, and I would therefore reverse the district court‘s judgment.
Notes
It is unlawful for any person to develop or operate a private fish installation without first securing a certificate of registration from the division of wildlife resources and payment of fees as specified by the wildlife board. This private fish installation must be operated under the rules and regulations specified by the wildlife board, and no such installation shall be developed on natural lakes or natural flowing streams, or reservoirs constructed on natural stream channels.
It might be asserted that such fish would continue to be the private property of plaintiff so that the public could not take the fish from the lake even if lawful access to the waters was gained. But see
In Adams v. Portage Irrigation, Reservoir & Power Co., 95 Utah 1, 72 P.2d 648 (1937), this Court stated:
Waters in this state are of two classes, public waters and private waters. The latter class is not only subject to exclusive control and ownership, but may be used, sold, or wasted. It consists of such waters only as have been reduced to actual, physical possession of an individual by being taken into his vessels or storage receptacles. It is private property and may be the subject of larceny. Public waters, on the other hand, are not the subject of larceny. The title thereto is in the public; all are equal owners; that is, have coequal rights therein, and one cannot obtain the exclusive control thereof. These waters are the gift of Providence; they belong to all as nature placed them or made them available. They are the waters flowing in natural channels or ponded in natural lakes and reservoirs. The title thereto is not subject to private acquisition and barter, even by the federal government or the state itself . . . no title to the corpus of the water itself has been or can be granted, while it is naturally flowing, any more than it can to the air or the winds or the sunshine. “Such water,” says Blackstone, “is a movable, wandering thing,” . . . like wild birds on the wing.
Id. at 11, 72 P.2d at 652-53. See also Deseret Livestock v. Sharp, 123 Utah 353, 259 P.2d 607 (1953).