No. 83-164
IN THE SUPREME COURT OF THE STATE OF MONTANA
MONTANA COALITION FOR STREAM ACCESS, INC.
Plaintiff and Respondent,
and
MONTANA DEPARTMENT OF FISH, WILDLIFE AND PARXS,
and THE STATE OF 1\IONTANA,
Involuntary Plaintiffs and
Respondents,
and
THE MONTANA DEPARTPINT OF STATE LANDS,
Plaintiff and Respondent,
-vs-
DENNIS MICHAEL CURPAN,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Jardine, Stephenson, Blewett & Weaver; Alexander
Blewett, 111, argued, Great Falls, Pllontana
For Respondents:
Goetz, Madden & Dunn; James II. Goetz argued for D-lont.
Coalition for Stream Access, Bozeman, Montana
Stan Bradshaw argued, Dept. of Fish, Wildlife & Parks,
Helena, Montana
John F. North argued, Dept. of State Lands, Helena
For Amicus Curiae:
Albert Stone, U of M Law School, P4issoula, Montana
Vincent J. Kozakiewicz, National Wildlife Fed. and
Mont. Wildlife Federation, Missoula, Montana
Daniel C. Murphy, Mont. Stock & Wool Growers, Helena
Michael Coil, Mont. Trout Unlimited, Bozeman, Montana
Submitted: January 23, 1984
Decided: May 15, 1984
*A
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
,
Appellant D. Michael Curran ("Curran") appeals a Rule
54(b)-certified partial summary judgment entered in favor of
plaintiff s, Montana Coalition for Stream Access, Inc. ( "Co-
alition"), the State of Montana, the Montana Department of
State Lands and the Montana Department of Fish, Wildlife and
Parks. The District Court held that the public have a right
to use waters and the streambed of the Dearborn River up to
the high water mark as it flows through Currants property and
that the State of Montana owns the streambed between the low
wa.ter marks. The District Court also dismissed Curran's
counterclaim for inverse condemnation. We affirm.
The Dearborn River is approximately sixty-six miles
long and originates along the east slope of the Continental
Divide in west-central Montana. The river flows generally in
a southeasterly direction from its source near Scapegoat
Mountain, approximately thirty miles southwest of Augusta,
Montana, to the Missouri River.
The first twenty miles of the Dearborn is through
mountains and canyon terrain, roughly twelve miles of which
is within the Scapegoat Wilderness. After it leaves the
Wilderness area., the river emerges onto rolling plains and
continues its flow for about twenty-nine miles, where it
again enters a moderately timbered region. It then extends
another seventeen miles and enters the Missouri River near
Craig, Montana.
The Coalition is a nonprofit Montana corporation formed
to promote public access to Montana's rivers. Individual
members of the Coalition use the stretch of the Dearborn
running through Curran's property for recreational pursuits
such as floating and fishing. Some members of the Coalition
who have floated or attempted to float the Dearborn have
experienced interference and harassment from Curran or his
agents.
Curran and Curran Oil Co., of which he is a principal
stockholder, have extensive land holdings in Lewis and Clark
and Cascade Counties. Curran also holds leases to some state
lands through which the Dearborn flows. Approximately six to
seven miles of the Dearborn flows through property owned or
controlled by Curran. About four and one-half sections of
Curran's land on the Dearborn are immediately upstream from
the point at which U.S. Highway 2 8 7 crosses the Dearborn and
about six and one-half sections, including one isolated
section, are downstream from Highway 2 8 7 .
Curran claims title to the banks and streambed of a
portion of the Dearborn River and claims to have the right,
as an owner of private property, to restrict its use.
The District Court essentially held that the Dearborn
River is in fact navigable for recreation purposes under
Montana law; that recreation access to it is determined by
state law according to one criterion--namely, navigability
for recreation purposes; and that the question of recreation-
al access is to be determined according to state, not feder-
al, law.
The following issues are raised by the parties:
1. Whether the District Court erred in its application
of the federal test of navigability for title purposes.
2. Whether the District Court erred in granting summa-
ry judgment on the issue of navigability of the Dearborn.
3. Whether the District Court erred in determining
that recreational use and fishing make a stream navigable.
4. Whether the District Court erred in dismissing
Curran's counterclaim for inverse condemnation.
5. Whether the claims of the Coalition, the Department
of Fish, Wildlife and Parks and the Department of State Lands
should have been dismissed for failure to name indispensable
parties under Rule 19, M.R.Civ.P.
6. Whether the Coalition has standing to bring this
action.
7. Whether the District Court lacked subject matter
jurisdiction.
8. Whether Montana has adopted the log-floating test
of commercial navigability.
9. Whether the Dearborn River is navigable under the
federal commercial use test.
I
The first issue to be addressed is whether the District
Court erred in its application of the federal test of naviga-
bility for title purposes.
Curran maintains that the District Court erred by
misconstrui-ng the law to be applied in determining the navi-
gability of the Dearborn at the time Montana was admitted to
the Union.
The United States Supreme Court has held, and all
parties agree, that federal law control-s the issue of naviga-
bility for title purposes. Brewer-Elliott Oil and Gas Compa-
ny v. United States (1922), 260 U.S. 77, 43 S.Ct. 60, 67
L.Ed. 140.
Federal law on navigability for title purposes provides
that rivers are navigable in law which are navigable in fact.
The Daniel Ball (1870), 77 U.S. (10 Wall.) 557, 19 L.Ed. 999.
"And they are navigable in fact when they are used, or are
susceptible of being used, in their ordinary condition, as
highways for commerce, over which trade and travel are or may
be conducted in the customary modes of trade and travel on
water." The Daniel Ball, supra, at 563. In 1874, the United
States Supreme Court elaborated on its holding in Te Daniel
h
J supra, and stated that ". . . the true test of naviga-
bility of a stream does not depend on the mode by which
commerce is, or may be, conducted, nor the difficulties
attending navigation. If this were so, the public would be
deprived of the use of many of the large rivers of the
country. . . The capability of use by the public for purposes
of transportation and commerce affords the true criterion of
the navigability of a river, rather than the extent and
manner of that use." The Montello (1874), 87 U.S. (20 wall.)
LZ
430, , T L.Ed. 391.
&'
Navigability in fact under federal law can be deter-
mined by the log-floating test. The Montello, supra; Sierra
Pacific Power Co. v. Federal Energy Regulatory Commission
(9th Cir. 1982), 681 F.2d 1134, cert. denied, U.S. I
103 S.Ct. 1769 (1983); State of Oregon v. Riverfront Protec-
tion Association (9th Cir. 1982), 672 F.2d 792. In River-
front Protection Association, supra, the McKenzie River was
declared navigable despite the fact that log drives could
only be conducted during April, May and early June.
The evidence in this case, supplied by the affidavits
of two competent historians, demonstrates that the Dearborn
River was used. in 1887, two years before Montana statehood,
to float approximately 100,000 railroad ties. Furthermore,
in 1888 and. 1889, one or two 3-09drives per year were floated
down the Dearborn. One drive in 1888 contained 700,000 board
feet. Clearly the Dearborn satisfied the log-floating test
for navigability under the federal test of navigability for
title purposes.
Since the Dearborn was navigable under the log-floating
test at the time of statehood in 1889, title to the riverbed
was owned by the federal government prior to statehood and
was tra.nsferred to the State of Montana upon admission to the
Union.
The landmark case dealing with state and federal owner-
ship of beds underlying navigable waters is arti in v. Waddell-
(1842), 41 U.S. (16 Pet.) 367, 10 L.Ed. 997. In delivering
the opinion of the Court, Mr. Chief Justice Taney sta.ted,
"For when the Revolution took place, the people of each state
became themselves sovereign; and in that character hold the
absolute right to all their navigable waters and the soils
under them for their own common use, subject only to the
rights since surrendered by the constitution to the general
government." Waddell, supra.
Under English common law, the crown owned only the beds
of waters which were (1) below the high water mark, (2)
navigable and (3) affected by the ebb and flow of the tide.
Title to nontidal beds was prima facie in the owner of the
share to the thread of the stream, usque - filum aquae. In
ad
1851 the Supreme Court held that admiralty jurisdiction
extended to nontidal waters. The Genesee Chief (1851), 53
Keokuk (1876), 94 U.S. 324, 24 L.Ed. 224, Genesee Chief,
supra, was applied to hold that the states owned the beds to
nontidal navigable waters.
States admitted to the Union subsequent to the original
thirteen succeeded to the same rights on the theory that the
1-ands acquired by the United States from the original thir-
teen colonies or from foreign governments were held in trust
for the new sta.tes in order that they might be admitted on an
equal footing with the original states. Pollard's Lessee v.
As far as treatment of the lands still in a territorial
status, the federal government exercised sovereignity. In
Shively v. Bowlby (1894), 152 U.S. 1, 48-50, 14 S.Ct. 548, 38
L.Ed. 331, the Supreme Court stated:
"By the Constitution, as is now well
settled, the United States, having right-
fully a.cquired the Territories, and being
the only government which can impose laws
upon them, have the entire dominion and
sovereignty, national and municipal,
Federal and state, over all the Territo-
ries, so long as they remain in a territo-
rial condition. [Citations omitted. I
"The Congress of the United States, in
disposing of the public lands, has con-
stantly acted upon the theory that those
lands, whether in the interior, or on the
coast, above high water mark, may be taken
up by actual occupants, in order to en-
courage the settlement of the country;
- - navigable waters - - so=
that the and the
=
under them, whether within - above the
or
-
ebb - - flow- -
and - of the tide, shall - - be and
remain public highways; - being chiefly
and,
valuable - - public purposes - -
for the of com-
merce, navigation and fishery, - - -
and for the
improvements necessary - secure -
to and
promote those purposes, shall not be
qranted away during the period of t F r i t F
rial government; but,unless - - -of
in case
some international duty or public exigen-
9, shall - -
be held the7nited States in
trust - - future States, and shall
for the
- -in the several States, when organized
vest -
and admitted - - Union, with all the
into the
powers and prerogatives appertaining to
the older States in regard to such waters
and soils within their respective juris-
dictions; in short, shall - - disposed
not be
of
- piecemeal. to individuals as private
property, but shall be held as cwhole for
the purpose of being ultimately adminis-
tered and dealt with for the public bene-
fit by the State, after it shall have
become a completely organized community."
(Emphasis added.)
In addition, Patton - Titles sta.tes that as a further
on
attribute of sovereignty, the states have assumed for many
years the power to determine as a matter of local law the
question of what waters are navigable, Hardin v. Jordan
(1891), 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428, and the
boundary therein between state and private ownership.
pol lard.'^ Lessee v. Hagan (18441, 44 U.S. (3 How.) 212, 11
L.Ed. 565. "During the time that the United States holds
country as a territory, it can, as the holder of local sover-
eignty, make [the determination between state and private
ownership] . However, - - never - -so, with the natural
it ha.s done
assumption that it had left the matter for the control of
each state when organized and admitted to the union." 1
Patton - Titles, 5 129 (1957), citing Shively v. Bowlby, 152
on
U.S. at 58. (Emphasis added.)
further importance the issue of navigability for
title is the Public Trust Doctrine. The theory underlying
this doctrine can be traced from Roman Law through Magna
Carta to present day decisions.
The Public Trust Doctrine was first clearly defined in
Illinois Central Railroad v. Illinois (1892), 146 U.S. 387,
13 S.Ct. 110, 36 L.Ed. 1018. In this case the United States
Supreme Court was called upon to determine whether the State
of Illinois had the right to convey, by legislative grant, a
portion of Chicago's harbor on Lake Michigan to the Illinois
Central Railroad.
"That the State holds the title to the
lands under the navigable waters of Lake
Michigan, within its 1-imits, in the same
manner that the State holds title to
soils under tide water, by the common
law, we have already shown, and that
title necessarily carries with it control
over the waters above them whenever the
lands are subjected to use. ...
It is
a title held in trust for the people of
the State that they may enjoy the naviga-
tion of the waters, carry on commerce
over them, and have liberty of fishing
therein freed from the obstruction or
interference of private parties. ..
The
trust devolving upon the State for the
public, and which can only be discharged
by the management and control of property
in which the public has an interest,
cannot be relinquished by a transfer of
the property. The control of the State
for the purposes of the trust can never
be lost, except as to such parcels as are
used in promoting the interests of the
public therein, or can be disposed of
without any substantial impairment of the
public interest in the lands and waters
-
remaining. .. - State - - -
The can no more
abdicate its trust over Dro~ertv- which
.
d &
in
-
the whole people are interested, like
navigable waters and soils under - -so
them,
-
as - leave them entirely under - -
to the use
and control of private parties, except in
the instanceof parcels mentioned - -for the
improvement - t h e navigation - use of
or - and -.-
the waters. or when ~arcelscan -
- - - be dis-
posed of without impairment - - public
of the
interest - -
in what remains, - -it can
than -
abdicate ----- the admin-
its Dolice Dowers in
istration of government - - preserva-
and the
- - - peace.' (Emphasis added.)
tion of the
Illinois Central, 146 U.S. at 452-453.
In summary, the "equal-footing" doctrine as set forth
in Pollard's Lessee, supra, which held that the federal
government retained title to navigable waters so that all
states entering the Union subsequent to the original thirteen
would enter on an "equal footing" and the Public Trust Doc-
trine, which provides that states hold title to navigable
waterways in trust for the public benefit and use are two
important doctrines to be considered in determining a
navigability-for-title question. In this matter, the
log-floating test was properly applied and the State found to
hold title to the riverbed of the Dearborn. In this matter,
where title to the bed of the Dea.rborn rests with the State,
the test of navigability for use and not for title, is a test
to be determined under state law and not federal law.
Curran maintains that he holds title to the riverbed by
virtue of a patent issued to his predecessor-in-title.
However, the issue of the patent was not raised before the
District Court and was only presented on appeal to this
Court. Consequently, we decline to rule upon the matter of
the patent.
I1
The second issue to be considered is whether the Dis-
trict Court erred in granting summary judgment on the issue
of navigability of the Dearborn River.
We find no error in the granting of the summary judg-
ment. The affidavits and depositions of the historians are
admissible in evidence under the Montana Rules of Evidence.
The historians qualified as expert witnesses and their testi-
mony provided evidence of the history of the Dearborn. Their
affidavits and depositions also disclose circumstantial
guarantees of trustworthiness. The facts and data relied
upon by these experts was of a type reasonably relied upon by
experts in their field, and under those circumstances, need
not be admissible in evidence. Rule 703, Mont.R.Evid.
Such was not the case with regard to the affidavits of
Curran's witnesses. These affidavits were worthless under
our rules of evidence, did not create any genuine issue of
material fact concerning the navigability of the Dearborn
River at the time of Montana's statehood and are not admissi-
ble in evidence on this issue.
Furthermore, Curran filed a motion for summary judgment
on plaintiff's claim that the Dearborn River is a public way,
that the public has a right to enter on his lands between the
high water marks for recreational purposes, and that Art. IX,
Sec. 3, of the Montana Constitution provides plaintiff the
right to use the Dearborn. The motion for summary judgment
on these issues states that there is no genuine issue of
material fact on the issues and that Curran is entitled to
judgment as a matter of law. This is contrary to the posi-
tion he takes on appeal.
The third issue is whether the District Court erred in
determining that recreational use and fishing make a stream
navigable. We find no error.
The concept of determining navigability based upon
public recreational use is not new. One of the earlier
cases, decided in 1893, held:
". . . The division of waters into navi-
gable and nonnavigable is but a way of
dividing them into public and private
waters,--a classification which, in some
form, every civili-zed nation has recog-
nized; the line of division being 1argel.y
determined by its conditions and habits.
In early times, about the only
use--except, perhaps, fishing,--to which
the people of England had occasion to put
public waters, and about the only use to
which such waters were adapted, was
navigation, and the only waters suited to
that purpose were those in which the tide
ebbed and flowed. Hence, the common law
very naturally divided waters into navi-
qable and nonnavigable, and made the ebb
and flow of the tide the test of naviga-
bility. In this country, while still
retaining the common-law classification
of navigable and nonavigable, we have, in
view of our changed conditions, rejected
its test of navigability, and adopted in
its place that of navigability in fact;
and, while still adhering to navigability
as the the criterion whether waters are
public or private, yet we have extended
the meaning of that term so as to declare
a]-1 waters public highways which afford a
channel for any useful commerce, includ-
ing small streams, merely floatable for
logs at certain seasons of the year.
Most of the definitions of 'navigability'
in the decided cases, while perhaps
conceding that the size of the boats or
vessels is not important, and, indeed,
that it is not necessary that navigation
should be by boats at all, yet seem to
convey the idea that the water must be
capable of some commerce of pecuniary
value, as distinquished from boating for
mere pleasure. - - - under present
But if,
conditions of society, bodies of water
are used for-public
--- ises other --
tTan mere
commercial navigation, - - ordinary
in its
sense, -
we
gable waters, - - -
if the old nonmenclature is
preferred.~ertainly, - - - -
. - .
-
we do not see - -
boatina or sailincr for
- 6
lea sure should
not- considered navigation, - - -as
- be as well
boating -- pecuniary profit. Many,
for mere
i-f not the most, of the meandered lakes
of this state, are not adapted to, and
probably will never be used. to any great
extent for, commercial navigation; but
they are used--and as population increas-
es, and towns and cities are built up in
their vicinity, will be still more
used--by the people for sailing, rowing,
fishing, fowling, bathing, skating,
taking water for domestic, agricultural,
and even city purposes, cutting ice, and
other public purposes which cannot now be
enumerated or even anticipated. - - To hand
over - these lakes to private owner-
- all
ship, under any - - r narrow - -of
old o test
navigability, would - -a great wrong upon
be
- public - - time, - extent -
the for all the of
which cannot, perhaps, be now even
anticipated. .. It ( ~ m p h ~ s i s a d d ~
Lamprey v. State (Metcalf) (1893), 52
Minn. 181, 53 N.W. 1139, 1143.
Since 1893, the concept expressed in Lamprey has been
followed and the idea of navigability for public recreational
use has spread to numerous other jurisdictions. According to
Albert W. Stone, a professor of Law at the University of
Montana and an acknowledged expert in the field of Water Law,
there is a tendency in adjudicated cases from other jurisdic-
tions to abandon the tool of defining "navigahility" and
simply directing the inquiry to whether the water is
susceptible to public use. Under this concept, the question
of title to the underlying streambed is irrelevant. A. W.
Stone, Montana Water - - - 1980's (1981).
Law for the Thus, the
issue becomes one of use, not title.
Navigability for use is a matter governed by state law.
It is a separate concept from the federal question of deter-
mining navigability for title purposes.
". . . The Propeller Genesee Chief [The
Propeller Genesee Chief v. Fitzhugh,
(1851) 53 U.S. (12 How.) 443, 13 L.Ed.
1.0581, Gibbons v. Ogden [(1824) 22 U.S.
(9 Wheat.) 1, 6 L.Ed. 231, and the Daniel
Ball r(1870) 77 U.S. ( 1 0 Wall.) 557, 19
L.Ed. 9991 established the basic test for
public waters for the purposes of our
federal system. But the problems of
federalism are not the same as the prob-
lems which may arise entirely within a
state; the federal test for land-title
and federal jurisdiction does not have to
be the test for state determinations of
the waters that are public for various
state purposes." 1 Waters and Water
Rights (Clark Ed.) pgs 212-213, (1967).
(Footnotes omitted.)
In 1961, the Wyoming Supreme Court supported public use
of waters suitable therefor without regard to title or navi-
gability. The Court held:
"Irrespective of the ownership of the bed
or channel of waters, and irrespective of
their navigability, the public has the
right to use public waters of this State
for floating usable craft and that use
may not be interfered with or curtailed
by any landowner. It is also the right
of the public while so lawfully floating
in the State's waters to lawfully hunt or
fish or do any and all other things which
are not otherwise made unlawful." Day v.
Armstrong (Wyo. 1961), 362 P.2d 137, 147.
In essence, the Wyoming court held that public recrea-
tional use of waters was limited only by the susceptibility
of the waters for that purpose.
The Constitution of Montana provides:
"All surface, underground, flood, and
atmospheric waters within the boundaries
of the state are the property of the
state for the use of its people and are
subject to appropriation for beneficial
uses as provided by law."
Thus, Curran has no right to control the use of the
surface waters of the Dearborn to the exclusion of the public
except to the extent of his prior appropriation of part of
the water for irrigation purposes, which is not at issue
here. Curran has no right of ownership to the riverbed or
surface waters because their ownership was held by the feder-
al government prior to statehood in trust for the peopl-e.
Upon statehood, title was transferred to the State, burdened
by this public trust.
In essence, the question is whether the waters owned by
the State under the Constitution are susceptible to recrea-
tional use by the public. The capability of use of the
waters for recreational purposes determin.es their availabili-
ty for recreational use by the public. Streambed ownership
by a private party is irrelevant. If the waters are owned by
the State and held in trust for the people by the State, no
private party may bar the use of those waters by the people.
The Constitution and the public trust doctrine do not permit
a private party to interfere with the public's right to
recreational use of the surface of the State's waters.
Curran has also raised questions regarding ex post
facto laws, violation of the contract clause, and irrevocable
rights and privileges. However, since Curran has no title to
the streambed or right to exclude the public from use of the
surface waters of the Dearborn for recreational purposes,
these matters are not germane to this case.
Curran primarily relies on the Montana case of Herrin
v. Sutherland (1925), 74 Mont. 587, 241 P. 328, to support
his argument against the recreational use of the Dearborn by
members of the public. In that case, the Court stated that
Fall Creek, a tributary of the Missouri, was not a navigable
stream and anyone who waded up the creek was a trespasser.
This holding is irrelevant for at least three reasons: (1)
Fall Creek is a nonnavigable stream, at least according to
Curran, and therefore has no application to this case; (2)
the holding is purely dicta, hbs~no precedential value and
may be d-isregarded; and ( 3 ) the holding is contrary to the
public trust doctrine and the 1972 Montana Constitution.
In sum, we hold that, under the public trust doctrine
and the 1972 Montana Constitution, any surface waters that
are capable of recreational use may be so used by the public
without regard to streambed ownership or navigability for
nonrecreational purposes.
IV
The next issue is whether the District Court erred in
dismissing Curran's counterclaim for inverse condemnation.
The counterclaim for inverse condemnation was based
upon Curran's claim to ownership of the riverbed of the
Dearborn. However, the question of title to the bed is
irrelevant to determination of navigability for use, and
Curran has no claim to the waters. Since there is no claim
to the waters, there is no taking and, therefore, no grounds
for an inverse condemnation claim. Consequently, we find
that the District Court did not err in dismissing the claim.
v
The fifth issue is whether the claims of the Coalition,
the Department of Fish, Wildlife and Parks and the Department
of State Lands should have been dismissed for failure to join
indispensable parties under Rule 19, M.R.Civ.P.
This issue was first raised by Curran on appeal. We
note, however, that Montana's rule pertaining to this matter
is in its relevant aspects substantially the same as the
comparable federal rule and the federal courts have long held
that ". . . when litigation seeks the vindication of a public
right, third persons who may be adversely affected by a
decision favorable to plaintiff do not thereby become indis-
pensable parties." Natural Resources Defense Council, Inc.
v. Berklund (D.D.C. 1978), 458 F.Supp. 925, 933 (citing
National Licorice Co. v. NLRB (1940), 309 U.S. 350, 60 S.Ct.
569, 84 L.Ed. 799).
VI
The next issue raised is whether the Coalition had
standing to bring this matter.
We conclude that question is immaterial since the
Montana Department of Fish, Wildlife and Parks and the De-
partment of State Lands are also parties in this action.
VI I
The seventh issue is whether the District Court lacked
subject matter jurisdiction.
Curran's a.rgument is based solely on the presumption
that he holds title to the riverbed and argues that a state
has no power to strip him of title to that land under the
guise of determining navigability of the waters over that
riverbed.
We find this issue lacks merit because it is based on
Curran's claim of title which is nonexistent. As discussed
previously in greater detail, the State holds title to the
riverbed and the waters flowing over it so there is no ques-
tion of the subject matter jurisdiction of the District
Court.
VIII
The eighth issue is whether Montana has adopted the
bog-floating test of commercial navigability.
This issue was raised by Curran but is immaterial. The
question here is one of recreational use or navigability, not
commercial navigability.
IX
The last issue is whether the Dearborn River is naviga-
ble under the federal commerci.al use test.
This issue is also immaterial to determining the ques-
tion of navigability for recreational purposes under Montana
state law.
X
We add the cautionary note that nothing herein con-
tained in this opinion sha.11 be construed as granting the
public the right to enter upon or cross over private property
to reach the State-owned waters hereby held available for
recreational purposes.
The limit to the public's right to use these waters is,
under normal circumstances, the high water mark of the
waters.
While section 70-16-201, MCA, provides for private
ownership of the adjacent lands to the 1-ow water mark, the
"angling statute," section 87-2-305, MCA, recognizes a public
right to access for fishing purposes to the high water mark.
Further, in Gibson v. Kelly (1895), 39 P. 517, 15 Mont. 417,
this Court recognized a public right to access for fishing
and navigational purposes to the point of the high water
mark. Therefore, we hold that the public has a right to use
the state-owned waters to the point of the high water mark
except to the extent of barriers in the waters. In case of
barriers, the public is allowed to portage around such barri-
ers in the least intrusive way possible, avoiding damage to
the private property holder's rights.
XI
In summary, we hold the following:
(I) That the District Court did not err in its appli-
cation of the federal test for title purposes but that the
question of title of the underlying bed is immaterial in
determining public recreational use of State-owned waters.
(2) That the District Court did not err in granting
summary judgment on the issue of navigability of the
Dearborn.
(3) That the District Court was correct in holding
that State-owned water of the Dearborn is navigable for
recreational purposes. We further hold that under the public
trust doctrine and the Montana Constitution, any surface
waters capable of use for recreational purposes are available
for such purposes by the public, irrespective of streambed
ownership.
(4) That there was no error in dismissing the claim
for inverse condemnation; there was no taking and therefore
there is no basis for an inverse condemnation claim.
(5) That the question of the Coalition's standing is
immaterial to this matter.
(6) That the District Court did not err in failing to
dismiss the claims of the Coalition, the Department of Fish,
Wildlife and Parks, and the Department of State Lands for
failure to name indispensable parties because when litigation
seeks vindication of a public right, the persons who may be
adversely affected by a decision favorable to the plaintiff
do not thereby become indispensable parties.
(7) That the District Court did not lack subject
matter jurisdiction in this case.
(8) That whether Montana has adopted the log-floating
test of commercial navigability or whether the Dearborn River
is navigable under the federal commercial use test is irnmate-
rial because at issue here is the public's right to recrea-
tional use and this is determined according to Montana state
law.
(9) That the public's right to use the State-owned
waters is restricted to the area between the high water marks
and may only cross private property in order to portage
around barriers in the water; the right to portage must be
accomplished in the least intrusive manner possible.
(10) That the public do not have the right to enter
into or trespass across private property in order to enjoy
the recreational use of State-owned waters.
A£ firmed.
We concur:
Justices
Mr. Justice L. C. Gulbrandson dissenting.
I respectfully dissent.
The trial court and this Court have accepted the
evidence presented by the plaintiffs at a summary judgment
hearing as conclusive on the issue of navigability and have
summarily discarded the defendant's evidence as worthless
and inadmissible.
In my view, defendant' s evidence was sufficient to
show that a genuine issue of material fact existed, under
the authority of United States v. Rio Grande Dam & Irr. Co.
(1899), 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136, and Puget
Sound Power & Light v. Fed. Energy Reg. Comm'n (1981), 644
F.2d 785, and therefore, the disposition of this case by
summary judgment was improper. The matter should be
remanded for trial by jury.
Assuming, arguendo, that the Dearborn River was
navigable in fact, then the issues in this case can be
resolved by application of existing law. There was no
necessity for the trial court to hold, and for this Court to
affirm, that recreational use and fishing make the Dearborn
River navigable.
By adopting the recreational use test, with potential
statewide application, where the issues before the court d o
not require its adoption, this Court appears to be acting
legislatively, instead of judicially, and may be creating a
procedure whereby valuable property rights are condemned and
taken without payment of compensation.
/
'
/P,,/U
Justice
*
CORRECTION. In preparing this opinion for pub-
Hon. F r a n k I. H a s w e l l lication, we noted in our verification of titles and
C h i e f J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections have
Room 414 J u s t i c e B u i l d i n g been made on our copy of the opinion.
215 N o r t h S a n d e r s
H e l e n a , Montana 59620
Date:
Re:
#
J u l y 9, 1984
Montana C o a l i t i o n f o r S t r e a m Access, I n c . v. C u r r a n ,
1 5 , 1984
------.
c:2 day
Page 2, l i n e 1 - - should read Rule z ( b ) .
I
Page 5, l i n e 16 - - - - L.Ed.
87 391 should r e a d
A
22 L.Ed. 391.
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