Utah Stream v. VR Acquisitions

2023 UT 9

IN THE

SUPREME COURT OF THE STATE OF UTAH

UTAH STREAM ACCESS COALITION,
Appellant,
v.
VR ACQUISITIONS, LLC, and STATE OF UTAH,
Appellees.

No. 20210748
Heard: January 9, 2023
Filed May 18, 2023

On Direct Appeal

Fourth District, Heber
The Honorable Derek P. Pullan
No. 100500558

Attorneys 1:
Shawn T. Welch, Michelle Quist, Craig C. Coburn, Salt Lake City, for
appellant
Nathan D. Thomas, Elizabeth M. Butler, Salt Lake City, for appellee
VR Acquisitions, LLC
Andrew Dymek, Asst. Solic. Gen., David N. Wolf, Asst. Att’y Gen.,
Sean D. Reyes, Att’y Gen., Salt Lake City, for appellee State of Utah

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE PETERSEN, JUSTICE HAGEN, JUSTICE POHLMAN, and JUDGE
ORME joined.

Having recused himself, ASSOCIATE CHIEF JUSTICE PEARCE did not
participate herein; COURT OF APPEALS JUDGE GREGORY K. ORME sat.

_____________________________________________________________
1Attorneys for amicus curiae Utah Alliance to Protect Property
Rights: Michael D. Zimmerman, Erin Bergeson Hull, Salt Lake City.
 UTAH STREAM ACCESS COALITION v. VR ACQUISITIONS
Opinion of the Court

CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 This appeal boils down to a single issue: whether there was a
19th-century basis for an easement providing the public with the
right to touch privately owned streambeds underlying state waters.
¶2 In Conatser v. Johnson, 2 we recognized such an easement but
did so under modern common-law trust principles. 3 Shortly after
our decision in that case, the legislature enacted the Public Waters
Access Act (PWAA), 4 which purported to override our holding. 5
¶3 Utah Stream Access Coalition (USAC)—a nonprofit
corporation seeking to preserve recreational access to Utah rivers
and streams—filed a complaint against VR Acquisitions after USAC
members were cited for trespass for wading in the Provo River on
VR Acquisitions’ property. USAC claimed that the PWAA violated
articles XVII and XX of the Utah Constitution as well as federal
common law. The State intervened in the proceedings.
¶4 The district court entered summary judgment against USAC
on its article XVII and federal common law claims, leaving only the
article XX claim. After a bench trial, the court determined that the
PWAA violated article XX of the Utah Constitution, and VR
Acquisitions and the State appealed. In that appeal (USAC I), we
determined that the district court made a threshold error in reaching
its article XX determination because its analysis relied on modern
common law rather than constitutional principles. 6 So we remanded
the case, requesting that the district court address the “crucial
threshold question” 7 (threshold question) of whether the easement
we identified in Conatser (Conatser easement) “has a historical basis

_____________________________________________________________
2 2008 UT 48, 194 P.3d 897.
3 See id. ¶¶ 20–28 (citing 25 Am. Jur.2d Easements and Licenses in
Real Property § 1 (2007) & § 81 (2004)).
4 See UTAH CODE §§ 73-29-101 to -208.
5 See id. § 73-29-103(6).
6Utah Stream Access Coal. v. VR Acquisitions, LLC (USAC I), 2019
UT 7, ¶ 6, 439 P.3d 593.
7 Id. ¶ 29.

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as a public easement as of the time of the framing of the Utah
Constitution.” 8 We further explained that because USAC rooted
its article XX claim to access the Provo River in the notion that the
Conatser easement is a public land that was “acquired . . . [and]
accepted” by the State (and therefore subject to the public trust
doctrine), “USAC [is] in no position to assert that the State ‘acquired’
or ‘accepted’ any such easement at the time of the ratification of the
Utah Constitution”9 unless USAC can show that there was a
historical legal basis for a Conatser easement in the late 19th century.
Accordingly, we instructed the district court to resolve the remaining
constitutional questions only if it resolved the threshold question in
USAC’s favor.10
¶5 On remand, at USAC’s request, the parties conducted
additional discovery. VR Acquisitions and the State then filed
motions for summary judgment asserting that, based on the
established facts, USAC could not establish a 19th-century basis for a
Conatser easement. The district court granted the motions for
summary judgment, and USAC appealed.
¶6 USAC presents three overarching arguments in this appeal.
First, it exhorts us to reverse the district court decision because
material facts are in dispute. Second, it requests we reverse the
district court’s determination concerning the threshold question.
Third, it offers policy considerations that, in its view, justify reversal
of the district court’s summary judgment determination.
¶7 We hold that the district court’s decision was not reliant on
the facts USAC claims are disputed. And because USAC has not
identified an affirmative, 19th-century legal basis for a Conatser
easement, we hold that the district court correctly ruled that USAC
did not make the threshold showing. USAC’s policy arguments do
not affect these holdings.
Background
¶8 Our analysis relies on relevant caselaw, the PWAA, and the
prior proceedings in this case. We begin by summarizing these
sources.
_____________________________________________________________
8 Id. ¶ 6.
9 Id. ¶ 91 (citing UTAH CONST. art. XX, § 1).
10 See id. ¶¶ 91–92.

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Opinion of the Court

I. Relevant Caselaw
¶9 In two opinions, we have discussed the public’s right to use
waters within the state. In J.J.N.P. Co. v. State, 11 we recognized an
“easement over the water” 12 giving the public the “right to float
leisure craft, hunt, fish, and participate in any lawful activity when
utilizing” a lawfully accessible body of water. 13 We held that this
right exists “[i]rrespective of the ownership of the bed and
navigability of the water.” 14
¶10 In Conatser v. Johnson, 15 we clarified the scope of the public’s
easement over public water, holding that, so long as the public’s use
does not cause injury to the landowner, the easement encompasses
“the right to touch privately owned beds of state waters” 16 because
“touching the water’s bed is reasonably necessary and convenient
for the effective enjoyment of the public’s easement.” 17
II. The PWAA
¶11 After our decision in Conatser, the legislature enacted the
PWAA, 18 declaring “its intent to foster restoration of the
accommodation existing between recreational users and private
property owners” as it had been “before the decision in Conatser v.
Johnson.” 19 Under the PWAA, the public may (1) “float on public
water” that is sufficiently wide and deep for floating;
(2) “incidentally touch private property as required for safe passage
and continued movement” while floating; (3) “portage around a

_____________________________________________________________
11 655 P.2d 1133 (Utah 1982).
12 Id. at 1136.
13 Id. at 1137.
14 Id.
15 2008 UT 48, 194 P.3d 897.
16 Id. ¶ 19.
17 Id. ¶ 23.
18 UTAH CODE §§ 73-29-101 to -208.
19 Id. § 73-29-103(6).

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dangerous obstruction in the water” while floating; and (4) “fish
while floating.” 20
¶12 But the PWAA otherwise limits public recreational access to
water flowing over streambeds that are privately owned. For
example, the law provides that the public may not utilize a private
streambed for hunting, 21 wading, or other activities. 22 Those who
violate the PWAA may be subject to civil liability and penalties for
trespass. 23
III. USAC’s Lawsuit
¶13 The Provo River intersects Victory Ranch, which VR
Acquisitions owns. Until the enactment of the PWAA, the public
used the stretch of river that crosses Victory Ranch for recreational
activities like boating and fishing.
¶14 But since the enactment of the PWAA, VR Acquisitions has
prohibited public access to the stretch of river flowing over Victory
Ranch, including by preventing USAC members from accessing this
section of the Provo River for recreational purposes. USAC members
have also been warned and cited by the Utah Division of Wildlife
Resources and the Wasatch County Sheriff for trespass while
accessing the Provo River.
¶15 Based on its members’ restricted access to the Provo River,
USAC initiated a lawsuit against VR Acquisitions, claiming that the
PWAA violates article XVII, section 1 and article XX, section 1 of the
Utah Constitution, as well as federal common law. The State
intervened in the proceedings.
IV. The District Court’s Initial Decision
¶16 Each of the parties moved for summary judgment. The
district court granted summary judgment against USAC on its article
XVII and federal common law claims. 24 After additional briefing on
_____________________________________________________________
20 See id. § 73-29-202(1)–(2).
21 The law does include an exception for “waterfowl hunting.” See
id. § 73-29-102(9)(a)(iii).
22 See id. § 73-29-102(9)(b).
23 See id. § 73-29-205(1)–(2).
24 As we noted in USAC I, USAC did not challenge the district
court’s summary judgment decisions under article XVII or federal
(continued . . .)

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Opinion of the Court

USAC’s remaining claim under article XX, the district court
conducted a five-day bench trial. It determined that the Conatser
easement is an interest in land of the state under article XX, section 1.
And it went on to conclude that because the PWAA “substantially
impaired the public’s interest in the lands and waters” of the state, it
was unconstitutional under article XX, section 1. VR Acquisitions
and the State appealed that judgment.
V. The First Appeal: USAC I
¶17 In USAC I, we discussed several “important questions” 25
raised by the parties, including whether, under article XX, section 1,
(1) the Conatser easement constitutes “lands of the State”; 26 (2) the
Conatser easement was “acquired” and “accepted” by the State;27
(3) the PWAA “disposed of” public land; 28 and (4) the PWAA
violates the mandate that the lands of the state be “held in trust for
the people.” 29
¶18 But we stopped short of resolving these important
constitutional questions, determining that the district court made a
“threshold error” in relying on J.J.N.P. and Conatser because “[i]n
those cases we were not asked to analyze the historical scope of a
public easement in use of public waters at the time of the framing of
the Utah Constitution.” 30
¶19 We reversed the district court’s judgment and remanded,
instructing the court to address whether the Conatser easement was
“in line with the sort of public access right that our law would have

common law, so those decisions remain unchallenged. See Utah
Stream Access Coal. v. VR Acquisitions, LLC (USAC I), 2019 UT 7, ¶ 19
n.1, 439 P.3d 593.
25Utah Stream Access Coal. v. VR Acquisitions, LLC (USAC I), 2019
UT 7, ¶ 59, 439 P.3d 593.
26 See id. ¶¶ 61–65.
27 See id. ¶¶ 79–89.
28 See id. ¶¶ 66–69.
29 See id. ¶¶ 73–78.
30 Id. ¶ 86.

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dictated at the time of the framing of the Utah Constitution.” 31 We
explained that “it may be possible for USAC to demonstrate on
remand that there is a basis in historical fact—in the understanding
of public easements in the late 19th century—for the easement we
recognized in Conatser.” 32 And we noted that this “crucial threshold
question . . . could moot the other issues presented in the case.” 33
¶20 So we asked the district court to resolve this threshold
question. 34 We also invited the court to reconsider the premises of its
prior decision in the event it determined that USAC had established
a historical basis for its claimed easement. 35
VI. The District Court’s Proceedings on Remand
¶21 Given the language of our opinion in USAC I, the importance
of the issues, and the “inevitability of a second appeal,” on remand,
the district court reopened discovery. It determined that the
threshold question presented a mixed question of historical fact and
law because both “historical facts including customary uses of public
waterways in the late 19th-century” and “historical evidence of
public easement law” were relevant to its resolution.
¶22 The district court advised the parties that the case would be
conducted in two phases. First, the court would address the
threshold question and, if it resolved the question in USAC’s favor,
then it would decide whether the Conatser easement was a land of
the state that was acquired and accepted under article XX, section 1.
Second, if the court decided those issues in USAC’s favor, then it
would decide whether the PWAA violated article XX, section 1—
either by disposing of the Conatser easement for a purpose other than
that for which it was acquired or by violating the public trust
doctrine.
¶23 After additional discovery, VR Acquisitions and the State
moved for summary judgment. VR Acquisitions asserted that even if
USAC’s facts were accepted as true, USAC had not shown that 19th-

_____________________________________________________________
31 Id. ¶ 88.
32 Id. ¶ 5.
33 Id. ¶ 29.
34 See id. ¶ 90.
35 See id. ¶ 92.

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Opinion of the Court

century law recognized the existence of a Conatser easement. In
support of its motion, VR Acquisitions cited an 1891 Supreme Court
of the Territory of Utah case, Harkness v. Woodmansee, 36 for the
proposition that, at that time, a public right-of-way over private
property could be established in only three ways: by condemnation,
dedication, or prescription. According to VR Acquisitions, USAC
took the position that a 19th-century Conatser easement was
established in “custom and practice,” rather than in any of the three
ways identified by the Harkness court. And VR Acquisitions cited
19th-century caselaw indicating that the doctrine of easement by
custom was disfavored in Utah and elsewhere across the country.
¶24 Like VR Acquisitions, the State cited Harkness as standing for
the proposition that a Conatser easement could not have existed
under early Utah caselaw. It also claimed that when Utah was a
United States territory, a Conatser easement could not have arisen
without congressional authorization because Congress had “plenary
power” over the land within the territory. So, according to the State,
any customary use of streambeds at that time would not have been
understood to constitute an easement—a vested legal right—rather,
the use would have been understood to constitute, at most, an
implied license. The State further elaborated that beginning in 1869,
when the United States began transferring title to land to private
purchasers via patent, title was typically passed free of any
encumbrance or adverse claim; thus, a Conatser easement could not
have passed to private landowners during that period. Finally, the
State cited sources indicating that although Congress authorized
rights-of-way on public lands in the Utah Territory and elsewhere,
including on navigable streams, it did not grant a right-of-way on
non-navigable streams.
¶25 USAC responded to the summary judgment motions by first
identifying what it claimed were disputes of material fact that
precluded the district court from granting summary judgment. It
next argued that territorial and state law “recognized, regulated[,]
and enforced” the Conatser easement. In its view, the Conatser
easement has existed in Utah since the pioneers’ arrival—as
evidenced by the fact that in the late 19th century, Utahns recreated
in rivers and streams in the state without restriction, including by
taking part in activities like “fishing, swimming, wading, baptisms,
_____________________________________________________________
36 26 P. 291 (Utah 1891).

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floating, [and] fur trapping.” Based on the evidence it identified
during discovery, USAC concluded that the Conatser easement was
“in a sense arguably dedicated by Utahns themselves, specifically
the [Church of Jesus Christ of Latter-day Saints] and its members
who settled Utah.”
¶26 USAC also disputed the applicability of the Harkness
framework outlined by VR Acquisitions and the State. It sought to
distinguish Harkness based on the fact that it “dealt with a finite
public right-of-way across a specific parcel of . . . private property,”
rather than “a territory- and now state-wide public easement.”
USAC next pointed to early Utah trespass statutes, which, according
to USAC, did not prohibit individuals from crossing private
property for any purpose, including to access a stream, unless the
trespass also caused damage to the property.
¶27 Finally, USAC countered the State’s contentions concerning
the federal government’s ownership of the land within the Utah
Territory and its conferral of land titles to private parties. USAC
explained that “despite the delays and complexities associated with
the lands of the United States . . . nothing changed”; “Utahns . . . and
Utah law recognized the existence of the Conatser easement[,] and
Utahns freely and ubiquitously exercised their easement rights,
crossing private and public uplands to access streams and walking
the public or private banks and beds of those streams when fishing,
etc.”
¶28 In response to USAC’s arguments, VR Acquisitions and the
State maintained that (1) there were no material facts in dispute;
(2) based on the “longstanding separation between Church and
State,” a 19th-century Conatser easement cannot be based on
religious doctrine; and (3) notwithstanding USAC’s evidence
regarding early trespass statutes, 19th-century caselaw established
landowners’ right to exclude, which imposed liability on those who
trespassed on private land.
A. USAC’s Undisputed Facts
¶29 Using the findings and testimony of three expert witnesses,
USAC presented the following facts before the district court. First,
based on the historical record and relevant facts of their customs and
practices, Utahns in the 19th century understood and believed that
they had a right to the free use of the streambeds of Utah’s rivers and
streams, even where the adjoining lands were privately owned.
Second, there is little to no evidence rebutting the fact that Utahns
exercised this perceived right in a way requiring them to touch the

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Opinion of the Court

riverbeds even where they did not have permission from the
landowner. Third, even though Utah settlers could not obtain legal
title to their lands until the federal government established a land
office in 1869, Utah’s territorial legislature, without federal approval,
granted county courts and officials jurisdiction over the management
of water, as well as the distribution, occupation, and sale of land.
Fourth, following the opening of the federal land office in Utah in
1869, persons holding “title” issued under territorial law secured
federal land patents and legal titles to their lands. Fifth, whether
before or after the opening of the land office and issuance of federal
land patents, early Utahns’ continuing access to and use of
streambeds on private lands were free and ubiquitous, and this use
was reflected in and allowed by trespass laws. Sixth, territorial laws
passed in 1852, 1866, 1876, and 1888 all required physical damage to
property (e.g., cutting of fences or trampling of crops) or theft or
conversion of property (e.g., allowing one’s cattle to graze in
another’s field or cutting someone else’s timber) for a civil trespass
to occur. Seventh, territorial trespass laws did not prohibit Utahns
from walking across another’s land or from fishing and walking on
the banks and beds of streams owned by private landowners. Eighth,
beginning in the 1880s, Utah taxpayers funded an annual stocking of
fish in the rivers and streams without regard for whether the waters
passed through public or private property. Ninth, news articles
reported that the upper Provo River (along with other Utah rivers
and streams) was a popular destination for local anglers before 1896,
even on land that had been granted to private individuals by federal
patent by 1895; and only one out of hundreds of articles mentioned
issues regarding trespass or landowner permission. Tenth, Utahns’
streambed use continued after statehood and into the early 20th
century as more land along streams became private and more
citizens flocked to those streams to fish. Eleventh, state trespass laws
did not prohibit the free use of streams flowing through private
land: in 1915, the Utah legislature clarified that trespass laws did not
“prohibit a person from wading up or down any stream while
fishing.” And twelfth, when questioned, state officials staunchly
defended the right of the public to wade in streams flowing through
private lands.
¶30 The district court accepted these facts as true and concluded
that (1) until the mid-20th century, “Utahns freely, ubiquitously and,
with few exceptions, without landowner objection or legal
repercussion, touched and utilized the beds of . . . waters” in Utah’s
rivers, streams, and lakes when accessing waters within the state

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“for any lawful purpose”; and (2) “the nature and scope of this
historical public use of Utah’s rivers, streams, and lakes was co-
extensive with the easement recognized by the Utah Supreme Court
in Conatser.”
¶31 But having accepted as true all facts USAC asserted and
drawing all reasonable inferences in USAC’s favor, the district court
nevertheless determined USAC had not shown that the historical use
of streambeds established a Conatser easement in the late 19th
century. The court concluded, relying upon Harkness, that in the 19th
century, a public right-of-way could “be established only by
condemnation, dedication, or prescription.” Accordingly, the court
rejected USAC’s assertion that a Conatser easement was established
based on the customs and practices of 19th-century Utahns. 37
Further, the court agreed with VR Acquisitions and the State that the
absence of trespass laws in the 19th century did not convey an
easement to the public.
¶32 The district court also examined two stages of Utah history,
relying on a historical analysis written by Ralph W. Johnson and
Russell A. Austin, Jr. (Johnson Article), which VR Acquisitions
included with its motion for summary judgment. For the period
from 1851 to 1869, the court concluded that the public’s use of non-
navigable streambeds could not have established an easement
because at that time, Congress had plenary power over the lands
comprising the Utah Territory. For the period from 1869 to statehood
in 1896, the court concluded that transfer of title to private owners
passed free of any encumbrance or adverse claim and that the land
retained by the United States government during this period was not
encumbered by a Conatser easement. 38
B. Evidentiary Objections and Disputes Before the District Court
¶33 In opposition to the motions for summary judgment, USAC
disputed one of VR Acquisitions’ alleged facts—that “[t]he ability to
_____________________________________________________________
37 The district court declined to reach VR Acquisitions’ and the
State’s constitutional arguments concerning the separation of church
and state because it determined that USAC’s claims could be
resolved on other grounds.
38 The district court also rejected an argument made by USAC at
oral argument that the Conatser easement arose out of the public’s
ownership of state waters.

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Opinion of the Court

walk down a streambed underlying non-navigable waters was
subject to debate around the time of statehood and has been the
subject of litigation since.” USAC argued that the sources VR
Acquisitions cited in support of this assertion were either
inapplicable or unreliable. USAC also disputed the evidence VR
Acquisitions provided in an expert report (Rogers Report) by Dr.
Jedediah Rogers. USAC argued that the Rogers Report contained
impermissible legal conclusions (as opposed to factual support) and
ignored relevant 19th-century statutes.
¶34 In reply, the State objected to USAC’s expert rebuttal reports,
which USAC introduced in response to the VR Acquisitions’ Rogers
Report. The State asserted that because it did not enter the Rogers
Report (or any affidavit from Dr. Rogers) into the summary
judgment record, USAC had no reason to include expert rebuttal
reports in opposition. The State also objected to portions of USAC’s
statement of facts because they lacked citations to the initial expert
reports. And finally, the State objected to portions of USAC’s
experts’ declarations, arguing they were irrelevant, violated the best
evidence rule, and made unsupported legal conclusions.
VII. The District Court’s Grant of Summary Judgment
¶35 The district court ruled that there were no genuine disputes
of material fact and that USAC had not satisfied the threshold
showing that there is a “historical basis as a public easement at the
time of the framing of the Utah Constitution.” The district court
consequently granted VR Acquisitions’ and the State’s motions for
summary judgment. It did not reach the question of whether the
Conatser easement constituted a land of the state that was acquired
and accepted under article XX, section 1 of the Utah Constitution. It
likewise did not reach the other constitutional questions presented in
the case.
¶36 USAC appealed. We exercise jurisdiction under Utah Code
section 78A-3-102(3)(j).
Standard of Review
¶37 Summary judgment is properly granted “if the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” 39 We
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39 UTAH R. CIV. P. 56(a).

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review a district court’s “legal conclusions and ultimate grant or
denial of summary judgment for correctness, and view[] the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.”40
Analysis
¶38 USAC asks us to reverse the district court’s grant of
summary judgment, advancing three main arguments. First, it
asserts the district court erred in finding no material facts in dispute
because (1) the parties disagreed about the evidence presented
during discovery; (2) the district court improperly weighed disputed
material facts; (3) USAC’s evidence repudiated the State’s claim that,
in order for the Conatser easement to be valid, it had to be recognized
by the federal government when it transferred lands via patents; and
(4) 19th-century law is not confined by federal and territorial
caselaw.
¶39 Second, USAC maintains that the district court erred in
answering the threshold question in favor of VR Acquisitions and
the State. For support, USAC points to 20th-century caselaw, the
customs and practices of Utahns in the late 19th century, early
trespass statutes, and federal law.
¶40 Finally, USAC urges us to overturn the district court’s ruling
based on policy considerations. These policy considerations include
the state constitutional right to fish, the caselaw and statutes of other
western states, and the economic impacts it claims will result from
the district court’s decision.
¶41 VR Acquisitions and the State counter that the district court
got it right when it determined that, even accepting all historical
facts presented by USAC as true and drawing all reasonable
inferences in its favor, USAC identified no legal basis on which a
19th-century Conatser easement could have been recognized. They
also urge us to disregard USAC’s policy arguments.
¶42 We affirm the district court’s grant of summary judgment.
We hold that the district court’s decision did not rely on disputed
material facts and that USAC has not established a 19th-century
basis for a Conatser easement. And we conclude that the policy
arguments USAC advances are unavailing.

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40 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (cleaned up).

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Opinion of the Court

I. The District Court Did Not Rely on Any Disputed Material Facts
¶43 In seeking reversal of the district court’s grant of summary
judgment in favor of VR Acquisitions and the State, USAC argues
that the court erred when it found there were no material facts in
dispute. It asserts that not only did it dispute VR Acquisitions’ and
the State’s material facts, but that VR Acquisitions and the State also
disputed USAC’s material facts. USAC further asserts that the
district court considered and improperly weighed these disputed
material facts, so the grant of summary judgment was inappropriate.
VR Acquisitions and the State respond that there was no genuine
dispute of material fact, so the district court’s order should be
affirmed.
¶44 Under rule 56 of the Utah Rules of Civil Procedure, summary
judgment is appropriate if “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” 41 A genuine factual dispute exists only when
resolution of the factual question might result in a verdict in favor of
the non-movant.42 A disputed fact is “material” if it is essential to
resolving the claim under relevant law. 43 So, by inference,
immaterial disputed facts—those that have no bearing on the court’s
decision or are irrelevant to the question before the court—will not
preclude summary judgment.
¶45 USAC argues that it presented material facts and evidence
supporting the conclusion that a Conatser easement “was recognized

_____________________________________________________________
41 UTAH R. CIV. P. 56(a).
42 See Cochegrus v. Herriman City, 2020 UT 14, ¶ 14, 462 P.3d 357
(“We apply an objective standard to determine whether a genuine
factual dispute exists, which asks whether reasonable jurors,
properly instructed, would be able to come to only one conclusion,
or if they might come to different conclusions, thereby making
summary judgment inappropriate.” (cleaned up)).
43 See In re Guardianship of A.T.I.G., 2012 UT 88, ¶ 35, 293 P.3d 276
(“[A] fact is material only if it is significant or essential to the issue or
matter at hand.” (cleaned up)); see also Alliant Techsystems, Inc. v. Salt
Lake Bd. of Equalization, 2012 UT 4, ¶ 31, 270 P.3d 441 (“A disputed
fact is material if it affects the rights or liabilities of the parties.”
(cleaned up)).

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by Utah territorial and state laws” during statehood and for the first
100 years after the pioneers settled in Utah. It also contends that its
factual allegations and expert witness declarations “were sufficient
to create a genuine dispute of material fact relating to whether a
Conatser-type easement would have been accepted under the law of
the late 19th century.” 44 According to USAC, its evidence created
more than a dozen issues that encompassed disputed material facts,
all of which related to the creation and use of the Conatser easement
by early Utahns. USAC further asserts that it disputed some of VR
Acquisitions’ and the State’s material facts and that VR Acquisitions
and the State objected to some of USAC’s material facts.
¶46 In addition, USAC argues that despite the district court’s
purported acceptance of USAC’s historical facts, the court adopted
factual evidence presented by VR Acquisitions that contradicted
those facts—specifically the Johnson Article. USAC also contends
that, inconsistent with USAC’s accepted historical facts, the district
court improperly concluded that the Conatser easement could not
have existed in late-19th-century Utah in light of Harkness v.
Woodmansee. 45 And finally, USAC contends that, also inconsistent
with USAC’s accepted facts, the district court improperly concluded
that the law of the late 19th century was confined to federal and
territorial caselaw.
¶47 VR Acquisitions argues that the district court genuinely
accepted as true all the facts USAC had set forth, viewing them in
the light most favorable to USAC and drawing all reasonable
inferences in its favor, but because the threshold question was a
mixed question of fact and law and USAC did not identify any legal
basis upon which a Conatser easement could have been created,
USAC’s arguments cannot survive summary judgment. In other
words, VR Acquisitions contends that while it is true that USAC
presented historical facts that might suggest early Utahns accessed
private land to use public waters, USAC has not identified any basis
that legally allowed them to do so—thus, no easement was created.
Further, VR Acquisitions asserts that at statehood, there was a clear
legal standard for establishing that an easement existed, as outlined
by Harkness, but USAC’s facts were insufficient to meet that
standard. Finally, VR Acquisitions contends that there are no
_____________________________________________________________
44 (Cleaned up.)
45 26 P. 291 (Utah 1891).

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Opinion of the Court

genuine disputes of material fact because the facts that USAC and
VR Acquisitions disputed are immaterial, and the district court did
not rely on them when granting summary judgment. So VR
Acquisitions asks us to affirm the district court’s summary judgment
ruling.
¶48 The State agrees with VR Acquisitions’ position, concluding
that “There can be no genuine issue of material fact when a claim has
no basis in law because the law determines what facts are material.”
In other words, the State contends that because USAC did not
establish any legal basis for a Conatser easement, the district court
correctly granted summary judgment in favor of VR Acquisitions
and the State. The State also echoes VR Acquisitions’ argument that
because the district court accepted USAC’s facts as true and did not
rely on any disputed material facts when answering the threshold
question, USAC’s claims necessarily fail. Further, the State contends
that the comprehensive table of objections to USAC’s material facts
that the State submitted did not create a dispute of material fact,
because the objections outlined in the table questioned the facts’
relevance, not their underlying veracity.
¶49 We are persuaded by VR Acquisitions’ and the State’s
reasoning and, as discussed below, conclude that (1) the threshold
question is a mixed question of fact and law that requires the
application of a legal standard; (2) the record before us shows there
is no genuine dispute of material fact; and (3) the district court did
not make any conclusions contrary to USAC’s undisputed facts.
A. The Threshold Question Is a Mixed Question of Fact and Law
¶50 Though we articulated the threshold question in various
ways the first time this case came up on appeal, 46 the gist of the
question was whether there was a factual and a legal basis in Utah
during the late 19th century for establishing a Conatser easement. 47 In
other words, when we remanded the case, we asked the district
court to determine whether historical facts supported the legal

_____________________________________________________________
46See Utah Stream Access Coal. v. VR Acquisitions, LLC (USAC I),
2019 UT 7, ¶¶ 4–6, 29, 60, 85, 88, 89, 91, 439 P.3d 593.
47 See generally id.

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creation of a public easement. 48 So the threshold question was a
mixed question of fact and law. All parties acknowledge this in their
respective briefs on appeal, but they disagree over what that means
with respect to USAC’s burden in opposing the motions for
summary judgment.
¶51 “Mixed questions arise when a district court must apply a
particular rule of law to a particular set of facts.” 49 In other words,
“[t]hey involve application of a legal standard to a set of facts unique
to a particular case.” 50 So a mixed question of fact and law
necessarily requires an answer supported by both the facts of the
case and applicable laws. And because the question of whether “an
easement exists is a [question] of law,” 51 it necessarily follows that
USAC cannot meet its burden of showing that early Utahns
recognized a Conatser easement without pointing to a relevant legal
standard that existed in the late 19th century.
B. There Are No Genuine Disputes of Material Fact
¶52 The district court stated that it accepted USAC’s historical
facts as true and viewed them in the light most favorable to USAC.
And finding no genuine dispute of material fact, the court granted
VR Acquisitions’ and the State’s motions for summary judgment,
holding that
[USAC] has come forward with substantial evidence
that in the last half of the 19th century, Utahns widely
and freely touched and used both public and private
beds of Utah’s lakes, rivers, and streams for various
purposes, including recreation. But, [USAC] has
failed to prove that this historical use gave rise to a
public easement dictated by our law in the late 19th
century.
_____________________________________________________________
48 See id. ¶ 89 (posing the threshold question as whether the
historical facts established by USAC gave rise to “a public easement
dictated by our law in the late 19th century”); see also id. ¶¶ 6, 60, 88,
91.
49 Randolph v. State, 2022 UT 34, ¶ 20, 515 P.3d 444.
50 In re United Effort Plan Tr., 2013 UT 5, ¶ 19, 296 P.3d 742
(cleaned up).
51 Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).

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Opinion of the Court

¶53 On appeal, USAC insists that the testimony of its expert
witnesses created numerous disputes of material fact, any of which
should have precluded the district court’s grant of summary
judgment. As outlined above, 52 USAC summarized the findings and
opinions of its witnesses into twelve “disputed issues of material
fact” and argued that these issues were “sufficient to create a
genuine dispute of material fact relating to whether a Conatser-type
easement ‘would have been accepted under the law of the late 19th
century.’” 53 Additionally, USAC claims that it disputed one of VR
Acquisitions’ material facts and that the State disputed some of
USAC’s material facts. Below, we address each of USAC’s claimed
disputes of material fact in turn and affirm the district court’s
conclusion that there were no genuine disputes of material fact.
1. USAC’s “Disputed Material Facts” Are Immaterial and Do Not
Preclude Summary Judgment
¶54 As explained above, because the threshold question is a
mixed question of fact and law, to survive summary judgment,
USAC must present material facts supporting the legal creation of a
Conatser easement at the time Utahns adopted the constitution. Any
“disputed” facts that do not support the existence of a Conatser
easement are immaterial and will not preclude summary judgment.
The twelve “disputed facts” provided by USAC support the
conclusion that Utahns freely accessed privately owned streambeds
in Utah in the late 19th century, but those “disputed facts” do not
point to any legal right to do so. In other words, although USAC was
required to point to both historical facts and relevant laws to support
its position that a Conatser easement would have been recognized in
Utah in the late 19th century, it has pointed only to historical facts
suggesting that Utahns accessed both public and private land
without legal repercussions. So, as explained in detail below, none of
the facts presented by USAC, even accepted as true, are sufficient to
create a genuine dispute of material fact because they do not
establish that early Utah law recognized a Conatser easement.
¶55 First, USAC argued before the district court that early Utahns
believed they had the right to use privately owned streambeds and
accessed those streams without landowners’ permission. The court
_____________________________________________________________
52 See supra ¶ 29.
53 (Quoting USAC I, 2019 UT 7, ¶ 91.)

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held that these facts did not create a dispute of material fact, because
they did not provide any legal basis for the creation of an easement.
We agree. In this context, belief alone has never been a recognized
legal standard, 54 legal standard, 55 and trespassing on privately
owned property—without more—is insufficient to create a public
right-of-way. 56
¶56 Second, USAC argued that, without federal approval, Utah’s
territorial legislature granted county courts and officials jurisdiction
over the management of water, as well as the distribution,
occupation, and sale of land. The district court was correct in finding
that this creates no dispute of material fact. Even accepted as true,
this assertion does not suggest that easements on privately owned
property were created as a result of the territorial legislature’s
actions. Further, in support of its assertion, USAC argued that the
_____________________________________________________________
54 See State v. Stewart, 2019 UT 39, ¶ 37, 449 P.3d 59 (“[I]gnorance
of the law is no excuse.” (cleaned up)); Hall v. Peterson, 2017 UT App
226, ¶ 56 n.17, 409 P.3d 133 (“Smith and others may have believed that
they had a right to drive all the way to their respective lots, but that
has nothing to do with permission granted by Peterson, nor Peterson’s
ability to foresee reliance on that privately held belief.” (Emphasis
added)); cf. Adkins v. Uncle Bart’s, Inc., 2000 UT 14, ¶ 40, 1 P.3d 528
(“[O]rdinarily, courts are bound by stipulations between parties.
However, such is not the case when points of law requiring judicial
determination are involved.” (cleaned up)).
55 See State v. Stewart, 2019 UT 39, ¶ 37, 449 P.3d 59 (“[I]gnorance
of the law is no excuse.” (cleaned up)); Hall v. Peterson, 2017 UT App
226, ¶ 56 n.17, 409 P.3d 133 (“Smith and others may have believed that
they had a right to drive all the way to their respective lots, but that
has nothing to do with permission granted by Peterson, nor Peterson’s
ability to foresee reliance on that privately held belief.” (emphasis
added)); cf. Adkins v. Uncle Bart’s, Inc., 2000 UT 14, ¶ 40, 1 P.3d 528
(“[O]rdinarily, courts are bound by stipulations between parties.
However, such is not the case when points of law requiring judicial
determination are involved.” (cleaned up)).
56 See, e.g., Kiernan Fam. Draper, LLC v. Hidden Valley Health Ctrs.,
LC, 2021 UT 54, ¶ 41, 497 P.3d 330 (“To obtain a prescriptive
easement, a party must establish a property use that is (1) open, (2)
notorious, (3) adverse, and (4) continuous for at least 20 years.”
(cleaned up)).

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Opinion of the Court

“theological, cultural, political, social and legal perspectives”
influenced how people allocated water resources in Utah during the
late 19th century, suggesting that early Utahns’ customs and
practices support the existence of an easement. But historical
theological, cultural, political, social, and even legal perspectives are
not legal standards, and easements are created as a matter of law,
not custom or practice. 57 So there is no genuine dispute of material
fact in that regard.
¶57 Third, USAC argued that after 1869, those holding title to
land under Utah territorial law secured federal patents (and legal
title) to those lands. On this point, the district court determined there
was no dispute of material fact because the federal patents did not
recognize or create any affirmative right to a public easement. Again,
we agree. Nothing in the record before us indicates that the federal
patents transferred land subject to a Conatser easement. USAC
contends that because federal laws were passed protecting the right
to use public waters before the federal patents were granted, federal
law recognized a Conatser easement on the lands touching those
protected waters. But water and the land over which that water
_____________________________________________________________
57 See infra II.B; see also JON W. BRUCE & JAMES W. ELY, JR., THE LAW
OF EASEMENTS AND LICENSES IN LAND § 6:2 (updated March 2023)
(“The doctrine [of easement by custom] has long been generally
regarded as inapplicable in the United States.” (cleaned up)); Graham
v. Walker, 78 Conn. 130, 61 A. 98, 99 (Conn. 1905) (“This court has
never affirmed the recognition by our law of personal rights of way
or other easements resting on local custom.”); Bell v. Town of Wells,
557 A.2d 168, 179 (Me. 1989) (“Very few American states recognize
the English doctrine of public easements by local custom.”);
Ackerman v. Shelp, 8 N.J.L. 125, 130 (N.J. 1825) (stating that the
doctrine of easement by custom would produce “doubtful if not
dangerous consequences”); Harris v. Carson, 34 Va. 632, 638–39 (1836)
(“Any practice or usage, however general, introduced into this
country since its settlement, and in opposition to the common law,
can have no force on the ground of custom.”); cf. Hirtz v. Texas, 773
F. Supp. 6, 8–9 (S.D. Tex. 1991), vacated on other grounds, 974 F.2d 663
(5th Cir. 1992) (“Although the dry beach is frequently privately
owned, it is burdened with an easement in the public for access and
enjoyment. This easement was acquired through common law
doctrines.” (emphasis added)).

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flows are quite different. And USAC has not pointed to any
authority stating that the land under or adjacent to public waters is
subject to the same protections as the waters themselves. There is no
indication that the federal government transferred land encumbered
by any easements, and USAC points to no legal authority that states
otherwise. So this assertion does not create a genuine dispute of
material fact.
¶58 Fourth, USAC argued that (1) early Utahns’ use of
streambeds on private lands was free, ubiquitous, and permitted by
state trespass laws; (2) contemporary trespass laws required
property damage for a civil trespass to occur; (3) contemporary
trespass laws did not prohibit the use of riverbeds; and (4) anglers
were not considered trespassers when fishing in rivers or wading
through streams on private lands during the 19th and 20th centuries.
The district court was correct in holding that none of these assertions
created a dispute of material fact. USAC argues that these facts are
“consistent with the existence of an easement.” But trespass laws,
regardless of their scope, enforcement (or lack thereof), and
longevity do not create an affirmative right to a public easement. 58 In
other words, the trespass laws USAC cites do not recognize a legal
right to a public right-of-way. 59 So these claims do not create a
genuine dispute of material fact.
¶59 Fifth, USAC argued that beginning in the 1880s, Utah
taxpayers funded the stocking of fish in rivers running through
privately owned property and that state officials defended the
public’s right to wade in those rivers. The district court determined
that these facts did not create a genuine dispute of material fact. We
again agree. These assertions are, at best, tangential to the issue of
easement creation. There is nothing in the record before us or in the
arguments advanced by USAC suggesting that fish stocking
contributed to the creation of a Conatser easement. And, regardless of
what purported right state officials defended, USAC does not cite
any legal authority supporting that right in the context of an

_____________________________________________________________
58 See Kiernan Fam. Draper, LLC, 2021 UT 54, ¶ 41 (“To obtain a
prescriptive easement, a party must establish a property use that is
(1) open, (2) notorious, (3) adverse, and (4) continuous for at least 20
years.” (cleaned up)).
59 See infra II.C.

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Opinion of the Court

easement. So these claims also do not amount to a genuine dispute of
material fact.
2. The Facts that USAC Disputes Are Immaterial to the Threshold
Question
¶60 USAC contends that summary judgment was unjustified
because USAC disputed VR Acquisitions’ factual contention that
“the ability to walk down a streambed underlying non-navigable
waters was subject to debate around the time of statehood and has
been the subject of litigation since.” But the district court did not rely
on this factual assertion when granting summary judgment. Instead,
it examined the facts provided by USAC and concluded that USAC
had not pointed to any legal authority showing that a Conatser
easement was recognized in Utah in the late 19th century. So this
dispute of fact is immaterial and does not preclude summary
judgment. 60
¶61 USAC also argues it disputed VR Acquisitions’ evidence
relating to the Rogers Report by claiming that it contained
impermissible legal conclusions as opposed to factual support for VR
Acquisitions’ arguments. But again, the district court did not rely on
the Rogers Report in issuing its order—it relied on the facts provided
by USAC. So USAC’s “dispute” with the Rogers Report does not
preclude summary judgment.
3. The State’s Objections to USAC’s Experts’ Declarations Did Not
Preclude Summary Judgment
¶62 USAC contends that the State disputed USAC’s material facts
when it objected to (1) USAC’s use of its experts’ declarations as
relating to the Rogers Report; (2) USAC’s use of its experts’
declarations insofar as they omitted citations to the initial expert
reports; and (3) portions of USAC’s experts’ declarations because—
according to the State—they were irrelevant, violated the best
evidence rule, and made unsupported legal conclusions. But, as
discussed above, the court accepted USAC’s facts as true and did not
rely on the Rogers Report when granting summary judgment.
Accordingly, the State’s dispute does not preclude summary
judgment.

_____________________________________________________________
60 See In re Guardianship of A.T.I.G., 2012 UT 88, ¶ 35, 293 P.3d 276.

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C. The District Court Did Not Make Conclusions Contrary to USAC’s
Undisputed Facts
¶63 USAC further argues that despite the district court’s
purported acceptance of USAC’s historical facts, it adopted evidence
inconsistent with those facts. First, USAC contends that the district
court adopted VR Acquisitions’ use of the Johnson Article. Second,
USAC asserts it repudiated the State’s assertions that a Conatser
easement (1) could have existed only if it was recognized by the
federal government when it granted land to Utahns via patent and
(2) could not have existed under Harkness. And third, USAC
contends that the district court improperly concluded that the law of
the late 19th century was confined to federal and territorial caselaw.
1. The District Court’s Use of the Johnson Article Was Immaterial to
Its Grant of Summary Judgment
¶64 While it is true that the district court cited the Johnson
Article in its order granting summary judgment, it did not rely on
that article in its order. Once again, the crux of the court’s reasoning
was that there was no genuine dispute of material fact that would
preclude summary judgment, because USAC had not identified any
legal authority supporting its claim that a Conatser easement was
recognized by Utah law in the late 19th century. The record shows
that any citation the court made to the Johnson Article was irrelevant
to its dispositive reasoning and conclusion. So the district court’s use
of the Johnson Article was immaterial for summary judgment
purposes.
2. The District Court’s Conclusion, Based on Harkness v. Woodmansee,
that a Conatser Easement Could Not Have Existed at the Time of the
Utah Constitution’s Ratification Was Not Erroneous
¶65 USAC contends that the district court looked to the 1891
Harkness case for support but ignored USAC’s facts supporting early
Utahns’ use of easements before that case was decided—specifically
between 1869 and 1891. USAC argues that these facts support the
assertion that federal patents could have created private land
encumbered by a Conatser easement and that such an easement did
not have to be specifically recognized in the federal patents granting
Utahns title to their lands. But USAC’s Achilles’ heel remains—the
facts that USAC presented relating to the period between 1869 and
1891 are unaccompanied by any legal authority or standard
supporting USAC’s claims that a Conatser easement was established
in this time period. On the other hand, the Harkness case sets forth an
applicable legal standard that existed around the time of statehood

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Opinion of the Court

and substantiates VR Acquisitions’ and the State’s arguments. So the
district court did not err by using it as justification for its summary
judgment decision.
3. The District Court Did Not Err in Its Analysis of Applicable Law
¶66 USAC argues that “by claiming to accept [USAC’s] facts, but
then deciding as a legal question the ‘relevant legal standards
existing in the late 19th century,’ the district court set up an
unachievable standard that ignored [USAC’s] material facts relating
to the relevant legal standards existing at statehood.” In other words,
USAC argues that Utah’s 19th-century law is not confined by federal
and territorial caselaw but that additional territorial law—“laws
adopted communally”—existed outside this context. But in the same
section, USAC admits that “there was no statutory law, and very
little, if any, common law in existence to define the scope of the
Conatser-type easement that early Utahns used by right.” As we
explain above and below, custom and practice are insufficient legal
standards for establishing an easement. 61 And simply because USAC
cannot meet the standard required by a mixed question of fact and
law does not mean that the district court erred in the framing of its
question; instead, it means that USAC’s arguments fall short of
meeting the burden it bears. The court asked USAC to find legal
authority to support its claims, and USAC did not do so. The district
court did not err in its analysis.
¶67 In sum, answering the threshold question required that
USAC present both historical facts and legal authority to support its
claims, but USAC did not establish that a relevant legal standard
existed in the late 19th century that would have established that the
public’s use of privately owned streambeds was pursuant to an
easement rather than the acquiescence of property owners.
Therefore, USAC’s “disputed” facts did not create a genuine dispute
of material fact, the factual objections made by the parties were
immaterial to the threshold question, and the district court did not
make any conclusions contrary to the facts presented by USAC.

_____________________________________________________________
61 See infra II.B.

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II. USAC Has Not Demonstrated a 19th-Century Legal Basis for a
Conatser Easement
¶68 USAC offers four legal bases on which it claims a Conatser
easement could have been established at the time Utah obtained
statehood. First, it claims that a trilogy of modern cases demonstrates
that a Conatser easement predates Utah statehood. Second, it posits
that the customs and practices of early Utahns demonstrated that
contemporary law would have recognized a Conatser easement.
Third, it maintains that the lack of trespass statutes around the time
Utah obtained statehood is consonant with the existence of a Conatser
easement. And finally, it claims that 19th-century federal law
supports recognition of a Conatser easement. We discuss each
argument in turn.
A. The Threshold Question Is Not Resolved by Reference
to Modern Caselaw
¶69 USAC first attempts to justify a 19th-century Conatser
easement with caselaw that postdates the ratification of the Utah
Constitution. It asserts that the answer to the threshold question “lies
within the intersection” of three cases: Adams v. Portage Irrigation,
Reservoir & Power Co.; 62 J.J.N.P. Co. v. State; 63 and Conatser v.
Johnson. 64 According to USAC, these cases, as well as the interplay
between articles XVII and XX of the Utah Constitution, establish a
19th-century basis for a Conatser easement.
¶70 USAC presents what it characterizes as a “natural trajectory
in identifying the public’s right to use waters, . . . which right
necessarily included the right to recreate on those waters, including
the right to touch the streambeds.” According to USAC, this “natural
trajectory” began with our holding in Adams that “[w]hile [water] is
flowing naturally in the channel of the stream or other source of
supply, it must of necessity continue common by the law of nature,
and therefore is nobody’s property, or property common to
everybody.” 65 USAC asserts that because the Adams court did not
cite any statute in arriving at this holding, the public’s ownership of
_____________________________________________________________
62 72 P.2d 648 (Utah 1937).
63 655 P.2d 1133 (Utah 1982).
64 2008 UT 48, 194 P.3d 897.
65 Adams, 72 P.2d at 653.

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Opinion of the Court

the water and its right to use that water “were existing territorial
rights that were confirmed by Article XVII.”
¶71 Conatser is also a crucial part of the caselaw trajectory
outlined by USAC. USAC asserts that Conatser relied on Adams when
recognizing the right to use privately owned streambeds. 66 And
while USAC concedes that Conatser did not address whether this
right existed at statehood, in its view, J.J.N.P. represents the
connecting link between Adams and Conatser because J.J.N.P. relied
on Adams, and Conatser, in turn, relied on J.J.N.P.
¶72 So USAC attempts to connect the dots among Adams, J.J.N.P.,
and Conatser in three steps, reasoning that (1) “Adams affirmed that
the public had a right to use public water, which existed at
statehood”; (2) “J.J.N.P. held the public had a right to float on public
water even on private land”; and (3) “Conatser relied on both [Adams
and J.J.N.P.] and held that the public had a right to touch the
streambeds of private land.” USAC goes on to tie the relationship
among these three cases to the relationship between articles XVII and
XX of the Utah Constitution, explaining that article XVII establishes
that the public has owned the water since before Utah obtained
statehood, and article XX restricts the State’s ability to take away the
public’s right to the use of streambeds.
¶73 USAC’s reasoning is constrained by our holding in USAC I.
In remanding this case, we offered USAC the chance “to establish a
historical, 19th-century basis” for the Conatser easement. 67 In doing
so, we specified that this “determination cannot be made by mere
reference to our analysis in J.J.N.P. and Conatser” because “[i]n those
cases we were not asked to analyze the historical scope of a public
easement in use of public waters at the time of the framing of the
Utah Constitution.”68 We also clarified the sources of the principles

_____________________________________________________________
66 Conatser references Adams once in a footnote for the proposition
that “waters in Utah are of two classes, private and public, and title
to public waters ‘is in the public; all are equal owners; that is, have
coequal rights therein.’” Conatser, 2008 UT 48, ¶ 8 n.2 (quoting
Adams, 72 P.2d at 652).
67Utah Stream Access Coal. v. VR Acquisitions, LLC (USAC I), 2019
UT 7, ¶ 60, 439 P.3d 593.
68 Id. ¶ 86.

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underlying Conatser, J.J.N.P., and Adams, stating that the conclusions
in Conatser “were rooted in common-law trust principles that we
imported from modern case law and a chapter from American
Jurisprudence” 69 and that “[t]he same goes for the decisions we relied
on in Conatser—J.J.N.P. and Adams.” 70 We noted that “our analysis in
Conatser was not constitutionally based”—“[i]t was rooted in
common-law easement principles” 71—and that, similarly, the
holdings in J.J.N.P. and Adams resulted from the application of
“common-law principles.” 72
¶74 The district court accurately stated that “[t]he issue presented
on remand asks the Court to view USAC’s claim through the lenses
of the law as it existed in 1896, not the lenses of the common law as it
developed some one hundred years later.” Likewise, the district
court correctly concluded that the rights identified in Conatser and
J.J.N.P. were “the ‘product of common-law developments in the 20th
and 21st centuries.’” 73 For this reason, we disagree with USAC’s
position that the natural trajectory it seeks to identify in Adams,
J.J.N.P., and Conatser was evident at the time Utah obtained
statehood, and we reiterate that the answer to the threshold question
cannot rely on modern caselaw.
B. USAC Has Not Shown that Utahns’ Historical Use of Streambeds Gave
Rise to a Public Right-of-Way
¶75 VR Acquisitions and the State set forth a straightforward
framework, based on Harkness v. Woodmansee, 74 explicating the
understanding of public easements in the late 19th century. In that
1891 case, the Supreme Court of the Territory of Utah explained that
“the public may acquire a right of way over private property” in
“either of three ways”: “(1) [b]y condemnation in pursuance of the

_____________________________________________________________
69 Id. ¶ 87.
70 Id. ¶ 87 n.6.
71 Id. ¶ 60.
72 Id. ¶ 87 n.6.
73 (Quoting id. ¶ 91.)
74 26 P. 291 (Utah 1891).

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law of eminent domain; (2) by dedication; [or] (3) by such continued
use as gives a prescriptive right.” 75
¶76 Based on this framework, VR Acquisitions and the State
conclude that the caselaw at the time of the Utah Constitution’s
ratification clearly specified that a public right-of-way could be
created only by dedication, prescription, or condemnation—and so
because USAC does not argue that a Conatser easement arose in any
of those three ways, it offers no legal basis on which a 19th-century
court would have recognized such an easement.
¶77 USAC counters that Harkness does not provide an answer to
the threshold question. In its view, the holding in Harkness should
not be applied outside the circumstances of the case—a private
property dispute between private parties. As USAC sees it, because
Harkness did not involve the exact issue presented by the threshold
question—whether the public has the legal right to touch privately
owned streambeds—the case’s holding cannot be understood to
preclude a Conatser easement.
¶78 USAC elaborates that the Harkness court did not establish an
exhaustive list of ways the public can acquire a right-of-way. In
support of this argument, it provides examples of recent cases in
which public rights-of-way have been recognized by methods other
than dedication, prescription, or condemnation. Specifically, it
contends that “the claim that Harkness set forth an exhaustive list for
the existence of an easement runs contrary to the rights and
easement recognized . . . in J.J.N.P. and Conatser.” So, according to
USAC, because the court in J.J.N.P. and Conatser recognized
easements created by methods other than dedication, prescription, or
condemnation, the easements in those cases must be distinct from
the type described in Harkness.
¶79 We do not reach the competing arguments related to the
Harkness framework, because we conclude that even if the case’s
framework is inapplicable, USAC must provide an alternative 19th-
century legal framework affirmatively establishing a Conatser
easement at the time Utah obtained statehood, which it has not done.
¶80 The closest USAC comes to demonstrating an affirmative
legal basis for a 19th-century Conatser easement is its argument that

_____________________________________________________________
75 Id. at 292.

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the legal framework was established through the customs and
practices of early Utahns. Although USAC presents facts illustrating
the customs and practices of the time, it does not convince us that
these customs and practices were tied to a contemporary legal
framework. In fact, USAC reinforces our conclusion by emphasizing
what it describes as a “subtle, but significant” distinction between
evidence of a Conatser easement and the source of the easement. It
delineates this distinction by explaining that early Utahns’ customs
and practices constitute “historical evidence” of the Conatser
easement; so while customs and practices are not the source of the
easement, they are evidence of its existence. While we do not dispute
the distinction USAC seeks to draw, we conclude that it ultimately
hurts USAC’s argument rather than supports it because the
threshold question requires that USAC establish a legal basis—or a
“source”—of a 19th-century Conatser easement, not mere “evidence”
that such an easement existed.
¶81 In its motion for summary judgment, VR Acquisitions
responded to USAC’s facts and claims regarding custom and
practice by discussing the doctrine of easement by custom. It offered
caselaw suggesting that this doctrine was (1) “disfavored by courts
across the country” in the late 19th century and (2) “not a basis on
which a public easement could be established in Utah in 1895.” In
support of its contention that easement by custom never took root, it
cited early caselaw from other states demonstrating that the doctrine
was “largely a dead doctrine in the United States.” 76 And in support
of its claim that easement by custom was not recognized in Utah at
the time of statehood, it cited Harkness. In outlining the ways in
which a public right-of-way can arise, the Harkness court referenced
the doctrine of easement by custom but noted that the doctrine
creates “absurdities” in its application. 77
¶82 Responding to USAC’s facts and claims regarding custom
and practice, the district court stated that, in essence, USAC argued
that Utahns’ legal right to touch privately owned streambeds
stemmed from customs and practices of the time. The court
concluded, based on VR Acquisitions’ analysis of the easement-by-

_____________________________________________________________
76(Quoting Almeder v. Town of Kennebunkport, 2014 ME 139, ¶ 35,
106 A.3d 1099, as corrected (Apr. 16, 2015).)
77 Harkness, 26 P. at 292.

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custom caselaw it cited, that, at the time Utah obtained statehood, a
public easement could not be established by custom.
¶83 On appeal, USAC suggests that early Utah caselaw
recognized the “communal understanding doctrine.” For support, it
offers territorial caselaw that states, “But one course was open, and
that was for the whole body of the people to agree, expressly or
tacitly, upon a common measure.” 78 Based on this excerpt, USAC
presumes that “early Utahns lived by laws adopted communally—
including a Conatser-type easement on public waters”—and that
communally-adopted laws “are laws as certainly as if expressly
adopted by the lawmaking power.” 79 But USAC does not develop
this argument further. It only briefly refers to the idea that “Utah
settlers brought with them and implemented communal principles
of sharing resources” 80 and does little more than suggest that early
Utahns believed in working together for the greater good. USAC
does not explain how this purported “communal understanding
doctrine” was applied in practice, and, specifically, it does not
explain how a Conatser easement arose under the doctrine. Because
USAC does not develop its argument under this doctrine, which is
the closest it comes to setting forth an affirmative legal basis on
which a Conatser easement could have been recognized in the 19th
century, we do not reach the merits of the parties’ arguments on this
issue. We are therefore left to conclude that USAC has not carried its
burden of establishing a legal basis for a Conatser easement rooted in
the customs and practices of those living in Utah in the 19th century.
In other words, even if the Harkness framework were inapplicable,
USAC has not articulated an alternative legal basis on which a 19th-
century Conatser easement could have been based. And absent such
an articulation, USAC has not shown that a Conatser easement would
have been recognized by early Utahns. 81

_____________________________________________________________
78 First Nat’l Bank of Utah v. Kinner, 1 Utah 100, 107 (1873).
79 (Quoting id.)
80 (Cleaned up.)
81 VR Acquisitions and the State also responded to USAC’s
customs and practices argument by asserting that “[a]s a matter of
law, [USAC] cannot prevail in this case by rooting its claimed
easement in early Mormon religious principles,” because
“‘nonsectarianism’ is one of the ‘foundational themes’ that
(continued . . .)

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C. The Historical Absence of a Statutory Prohibition of Trespass Did Not
Confer a Right-of-Way on the Public
¶84 Next, USAC seeks a 19th-century basis for a Conatser
easement in territorial trespass statutes—or rather, in the absence of
such statutes. According to the facts established by USAC and
accepted as true by the district court, “[t]erritorial statutes did not
prohibit Utahns from walking across private land for any purpose
(e.g.[,] to access a stream), nor could private landowners prohibit
such access”; and early state trespass laws “allow[ed] the free use of
streams flowing through private land.”
¶85 In particular, USAC offered territorial trespass statutes
passed in 1852, 1866, 1876, and 1888 as evidence that early Utah
trespass statutes required physical damage, theft, or conversion of
property for a civil trespass to occur. And a declaration from one of
USAC’s experts states that in 1915, the state legislature clarified a
1909 statute that prohibited the fishing of any stream from horseback
or at night, explaining that nothing in that section prohibited a
person from wading in a stream while fishing. USAC also provided
a statement from the Utah Attorney General’s biennial report for
1901 to 1902 in which the Attorney General could not definitively
say whether a person trespasses while passing up and down a
stream on private property.
¶86 VR Acquisitions counters USAC’s argument by asserting that
the dearth of laws prohibiting trespass does not equate to an
enforceable legal right. 82 The State similarly argues that the district
court’s summary judgment decision cannot be overturned based on
the mere fact that early Utah trespass laws were consistent with the

‘underlie[s] the religion and conscience provisions’” of the Utah
Constitution. (Quoting Soc’y of Separationists, Inc. v. Whitehead, 870
P.2d 916, 939 (Utah 1993).) Like the district court, we do not reach
this constitutional argument because we resolve USAC’s claims on
other grounds. See State v. Wood, 648 P.2d 71, 82 (Utah 1982) (“It is a
fundamental rule that [courts] should avoid addressing a
constitutional issue unless required to do so.”).
82 USAC concedes that “the fact that a trespass law did not
prohibit use of the waterbed does not prove the existence of an
easement,” but it maintains that “the lack of trespass laws relating to
such use is consistent with the existence of an easement.”

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existence of a Conatser easement. In addition, the State, along with
amicus Utah Alliance to Protect Property Rights (UAPPR), directs us
to late-19th-century caselaw refuting USAC’s claim that private
landowners could not prohibit others from crossing over their land.
This caselaw, from both before and after statehood, demonstrates
that the crossing of private land was presumptively permissive,
rather than an affirmative right, and it supports VR Acquisitions’
and the State’s argument that although early trespass laws did not
expressly prohibit Utahns from crossing private land, they also did
not expressly allow for such crossing.
¶87 In Harkness, for example, when an individual claimed a
prescriptive right-of-way across his neighbor’s property, the
Supreme Court of the Territory of Utah explained that “[w]here a
person opens a way for the use of his own premises, and another
person uses it also without causing damage, the presumption is . . .
[that] such use by the latter was permissive, and not under a claim of
right.”83 Similarly, in Lund v. Wilcox, a property owner sought to
enjoin her neighbor “from tearing down her fences and from
trespassing on and passing over a certain portion of her land.” 84 For
years, while improving his land, the neighbor had crossed over a
portion of uncultivated land on the neighboring property in order to
reach the public highway. 85 The 1908 Supreme Court of Utah held
that the neighbor had not “established a legal right to the right of
way” over the property and that the right-of-way was also not
supported on “equitable grounds.” 86 The court stated that it “kn[e]w
of no law” granting the “right to pass over another’s property at will
to reach his own” without compensation, 87 and so it rejected the
neighbor’s claimed right-of-way.
¶88 USAC has not shown that the absence of trespass statutes in
Utah law around the time Utah obtained statehood gave rise to a
Conatser easement. We agree with the district court’s conclusion that
just because the public was not statutorily prohibited from touching
_____________________________________________________________
83 Harkness, 26 P. at 293.
84 97 P. 33, 34 (Utah 1908).
85 Id.
86 Id. at 36.
87 Id. at 35.

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privately owned streambeds, that does not mean it had an
enforceable legal right to do so. And, moreover, we agree with the
State and amicus UAPPR that the absence of early trespass laws did
not negate the common law right to exclude.
D. The Federal Law USAC References Does Not Establish a 19th-Century
Conatser Easement
¶89 USAC next references 19th-century federal law as a basis for
a Conatser easement. VR Acquisitions and the State argued to the
district court that a Conatser easement could not have arisen under
19th-century federal law because (1) while Utah was a territory, “the
United States was the sole sovereign authority within its borders”;
and (2) private parties that acquired land from the United States
government at the time obtained “‘perfect and consummate title’” to
the land. 88 USAC responded by claiming that the 19th-century
Conatser easement was “entirely a creature of Utah law” and that the
easement “is not now and has never been rooted in federal law.”
¶90 In its summary judgment order, the district court concluded
that during the period from 1847 to 1869, the United States
government owned all the land in the Utah territory and that from
1847 to 1869, the United States transferred title to some of the land in
the territory to private parties. It determined that during the former
period, Congress had “plenary power” over the lands comprising
the Utah territory. And, citing three cases—Shiver v. United States,89
Wilcox v. Jackson ex dem. McConnel, 90 and Hawke v. Deffenbach 91—the
court determined that during the latter period, private parties in the
Utah territory acquired perfect and consummate title to purchased
land, free of any encumbrance of adverse claim.
¶91 On appeal, USAC reiterates that “federal law does not
provide an answer to the threshold question.” Yet it also asserts that
19th-century federal law suggests the existence of a Conatser
easement because (1) contemporary legal authority did not support
the proposition that federal land patents issued free of

_____________________________________________________________
88 (Quoting Shiver v. United States, 159 U.S. 491, 495 (1895).)
89 159 U.S. 491 (1895).
90 38 U.S. 498 (1839).
91 22 N.W. 480 (Dakota 1885).

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encumbrances; and (2) under contemporary federal law, water rights
were carved out from land patents.
¶92 USAC protests the district court’s reliance on Shiver, Wilcox,
and Hawke because “none of the cases . . . stand for the proposition
that a patent passes title to the land as well as title to the water.” It
attempts to distinguish these cases, suggesting that they “have
absolutely nothing to do with rivers, streams, and water, nor a
corollary easement” and that “none of the . . . cases dealt with the
patents passing title to land that also attempted to pass title to
water.”
¶93 In addition, USAC avers that federal law supports
recognition of a 19th-century Conatser easement because Congress
enacted laws to protect the right to use and access public waters. It
references two federal laws—the Desert Land Act and the Mining
Act of 1866—that, in its view, “reserve public rights for entrance
upon water.” Concerning the Desert Land Act, USAC cites a New
Mexico Supreme Court case in which the court concluded that, upon
passage of the Desert Land Act,
the government possessed the power to dispose of land
and water thereon together, or to dispose of them
separately. . . . That Congress intended to establish the
rule that for the future (after March 3rd, 1877) the land
should be patented separately; and that all
nonnavigable waters thereon should be reserved for
the use of the public under the laws of the states and
territories named. 92
¶94 Next, concerning the Mining Act of 1866, USAC points out
that the act “included an express protection and priority for the right
to use water and acknowledged the role of local customs and laws in
defining these vested rights notwithstanding the absence of a
federally granted property interest.” USAC quotes the following
portion of the Mining Act of 1866 to support its position:
[W]henever, by priority of possession, rights to the use
of water for mining, agricultural, manufacturing, or

_____________________________________________________________
92 State ex rel. State Game Comm’n v. Red River Valley Co., 51 N.M.
207, 466 (N.M. 1945) (opinion on second motion for rehearing)
(cleaned up).

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other purposes, have vested and accrued, and the same
are recognized and acknowledged by the local
customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be
maintained and protected in the same. 93
USAC also points out that four years after enacting the Mining Act
of 1866, Congress amended it and confirmed that “all patents
granted, or preemption or homesteads allowed, shall be subject to
any vested and accrued water rights, or rights to ditches and
reservoirs used in connection with such water rights.” 94 The essence
of USAC’s argument is that around the time Utah acquired
statehood, federal law recognized that land patents were issued
“subject to vested and accrued water rights.”
¶95 VR Acquisitions and the State respond that USAC’s federal
law arguments are misplaced because they rely on “the
appropriative use of water,” and “the Conatser easement is not a
‘water right’; it is a burden on the land and has no impact on use of
the corpus of the water.” We agree. At most, the sources USAC
references establish that (1) after the enactment of the Desert Land
Act, land was patented separately from water; (2) non-navigable
waters are reserved for the public’s use; and (3) under the Mining
Act of 1866, federal land patents were subject to vested and accrued
water rights. Even accepting these contentions as true, they have no
bearing on the threshold question, because they define the scope of
vested water rights for the appropriation of water; they do not
validate USAC’s claim that the two acts “reserve public rights for
entrance upon water.” So we conclude that the federal sources
USAC references do not establish a 19th-century Conatser easement.
III. USAC’s Policy Arguments Have No Bearing on the Threshold
Question
¶96 USAC presents three policy considerations that it states we
should evaluate in reviewing the district court’s resolution of the
threshold question. First, it points to Utah’s Constitution, which
states, “The individual right of the people to hunt and to fish is a
_____________________________________________________________
93 Act of July 26, 1866, ch. 262 § 9, 14 Stat. 251, 253, codified at 43
U.S.C. § 932, repealed by Federal Land Policy Management Act of
1976 (FLPMA), Pub. L. No. 94–579 § 706(a), 90 Stat. 2743.
94 (Quoting Act of July 9, 1870, ch. 235, § 17, 16 Stat. 217, 218.)

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valued part of the State’s heritage and shall be forever preserved for
the public good.” 95 USAC implies that if a Conatser easement is not
recognized, Utahns’ constitutionally protected right to fish will be
jeopardized. Second, USAC cites other western states’ caselaw and
statutes (specifically those of New Mexico, Montana, and Alaska)
that recognize the public’s right to wade in public waters on private
land. USAC offers these examples as support for why we should
answer the threshold question in its favor. And third, USAC warns
of “significant economic impacts” if we affirm the district court’s
decision. USAC posits that if we close off public access to rivers and
streams throughout Utah, fewer people will purchase fishing
licenses, resulting in lower tax revenue for the state and fewer jobs
for Utahns.
¶97 USAC’s policy arguments do not convince us to resolve the
threshold question in its favor. First, few, if any, rights are
absolute—even those protected by the constitutions of Utah and the
United States. 96 Further, without a legal basis for an easement, the
public’s right to fish cannot trump private individuals’ right to
exclude people from trespassing on their property—especially where
Utah’s Constitution says as much. 97 Second, though the laws of other
states may prove persuasive at times, they have no binding effect on
the threshold question here. And third, even if we were to accept as
true the “likely negative economic impact” suggested by USAC, this
alone would not alter our decision. It is well established that the
judiciary may “not interfere with enactments of the Legislature
where disagreement is founded only on policy considerations and
the legislative scheme employs reasonable means to effectuate a
legitimate objective.” 98

_____________________________________________________________
95 UTAH CONST. art. I, § 30(1).
96See Shields v. Toronto, 395 P.2d 829, 835 (Utah 1964) (providing
various examples to demonstrate that rights, including fundamental
constitutional rights “cannot be regarded as isolated and absolute”).
97 See UTAH CONST. art. I, § 30 (“The individual right of the people
to hunt and to fish is a valued part of the State’s heritage and shall be
forever preserved for the public good. . . . This section does not affect
. . . the law relating to trespass or property rights . . . .”).
98 Baker v. Matheson, 607 P.2d 233, 237 (Utah 1979).

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Conclusion
¶98 The threshold question is a mixed question of fact and law.
As such, USAC was required to present to the district court both
historical facts and relevant laws to support its argument that a
Conatser easement was legally recognized in Utah in the late 19th
century. But the facts that USAC presented were unaccompanied by
any applicable legal authority supporting the creation or existence of
a Conatser easement in Utah at the time of statehood. So the district
court did not err when it found that there were no genuine disputes
of material fact, and its conclusions were not contrary to the facts
provided by USAC. Further, the arguments USAC makes in support
of recognizing a Conatser easement do not establish any 19th-century
basis for the existence of such an easement—the modern caselaw
USAC cites is inapplicable, the customs and practices of early Utahns
are immaterial, Utah’s 19th-century trespass laws (or lack thereof)
are insufficient, the referenced 19th-century federal laws are
inadequate, and the policy considerations USAC advances are better
directed to the legislature. We therefore affirm the district court’s
grant of summary judgment.

37