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Last modified
8/16/2009 2:57:37 PM
Creation date
10/4/2006 6:49:20 AM
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Board Meetings
Board Meeting Date
7/24/2000
Description
Gunnison Basin Issues - Right-to-Float
Board Meetings - Doc Type
Memo
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<br />Appendix A <br /> <br />Criminal Trespass <br /> <br />~ <br /> <br />.~ <br /> <br />. A floater who touches the banks or bed of a nonnavigable stream flowing through and across <br />private property commits third degree criminal trespass (class 1 petty offense or class 3 <br />misdemeanor), <br /> <br />. Although there is no Colorado appellate decision directly on point, apparently even a <br />touching of the be9 or banks of stream in order to avoid an obstacle or a hazard is criminal <br />trespass, . <br /> <br />. A Colorado appellate decision directly on point (Emmert -- decided in 1979 based on an <br />event in 1976) holds that floating without touching bed or banks is also criminal trespass. No <br />judicial decision has overruled Emmert. However, it is generally accepted, and an AGO so <br />opined (1983), that a subsequent statute (1977) defining "premises" changed the law to <br />exempt floaters who do not touch the bed or banks from the coverage of the criminal trespass <br />statute. <br /> <br />Civil Trespass <br /> <br />. Civil trespass is a tort, and the presence or absence of a cause of action with respect to an . <br />individual act of floating depends on numerous facts and legal relationships that are unique to <br />the particular situation. <br /> <br />. Neither the Emmert case, the 1977 statutory change, nor the 1983 AGO had anything to do <br />with the issue of civil trespass as between floaters and landowners; all were limited to the <br />issue of criminal tr~spass, <br /> <br />. Some in Colorado believe that the 1983 AGO created a misleading impression that there is a <br />"right" to float across private property, Others believe that the 1983 AGO in fact established <br />such a "right." However, no language in the AGO supports any conclusion whatsoever with <br />respect to any such "right", either pro or con, since the AGO addresses only criminal trespass, <br /> <br />. There is no Colorado appellate decision on the issue of whether a floater is a civil trespasser, <br />or on the corollary issue of whether a landowner has the right, inherent in ownership of the <br />property, to exclude floaters. (Note that a criminal trespass may also be a civil trespass, <br />depending on the circumstances,) <br /> <br />. <br />
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