Gunnison news-champion and tribune., 1905-06-09
AARTMASa 80 ~ e1O
& c. 0ss1D 6e10nG1D
- 4 Nesasas = r.


pabl,c ssre~sn Against she aA,JsreD
et ats owsers II the sdlosnss6 6nA.
TIE provsssou eA the sst II I00e -
sn8 the pahhc rl9hs - - =
saresas stocked by the sssas y -
clared invalid
In the case, which csne ~ -
Gspn,soa county. The oie6salumo
justified under section 5 e agoi11D
IL 81 the constitution. WHICH sum1H
The water 81 every natarsl sasuuA
NO, heretofore appropr,ssed vsshin
the state of Colorado, he heseby -
clared to be the property a -
pubic, and the same Is dedicuAo1 -
the use of the people IT the -
subject to appropriation as tessanr
after provided, and under - -
Of the assembly, Session Laws 1914
page. 333, winch provides: "TAa1
the public shall have the risht -
hsh an any stream in THE s&a1s,
stocked al public expense. subjscs -
actions IN trespass, for any dsGAGD
done property along the bank Of any
such stream.
ATTORNEY Sprigg Shack leford -
presents Mr. Hartman and lexter r..
Sapp the defendeut
In the opinion, written by JSssies
Campbell. 1t was stated.
The section Of the constitstisla
relied upon declares the unappropgi-
ated waters Of our natural stvea0o
to be the property Of the public, snA
dedIcates the same 10 the use of tko
people Of the state, subject to appse-
prlation, as in that instrument Is<s
vided. and the following section
provides that the right to divert the
same to beneficial uses shall nevee
be denied II is this right Of ap.
preparation which the general gov.
erBmeut has recognized and conS
hrmed, aud subject to which ito
grants of public lands in the arid
states since 1866 have been made.
Bat neither in this, nor in any other.
clause Of our constitution, nor in ana
act Of congress, is the right Of asherl
in the natural streams of this state
or an easement over he public d4
main for its enjoyment, declared e.
be, or recognized as vested, in the
state; nor has any authority to grant
the same to its citizens been confer
red upon the state, or claimed by it,
except in the statue cited This
does assume to grant such right,
and it is u pom this alone, if at all,
that defendant can Justify. That
this act is void for at least two
reasons we proceed to show.
But the power of the state is not
as 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, ana no act of congress
authorized, nor did plaintiffs patent
contain, any reservation of any
public right or fishery, or of any
easement over its lands to enable the
public to enjoy such right"
Defendant comedies that at the
common law, and the authorities so
hold, the owner OF lands which bor-
der on a navigable river, above the
ebb and flow Of the tide, and the
owner OF lands along "a nonnavigable
fresh water stream, as an incident
OF such 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 his lands.
AS between those claiming a |
right Of the same character-that Is.
a public right of fishery and a pri-
vate right of fishery-this doctrine Of
the common law, being of general
nature, is Just as applicable in Colo
RADIO as elsewhere.
''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 ap-
preparation, 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 decision
Gen. Stat. 1888, sec. 1877. Plaintiff
owns land bordering on both banks
OF natural streams. As between
him and the defendant, he owns the
right of fishery in their waters with
IN his outer boundaries. As be
tween them, plaintiff also owns the
beds Of the streams just as much as
he owns the adjacent banks or soil
anywhere within his surface lines.
Il /. 4