dissenting:
I respectfully dissent.
The affirmation by this Court of the recreational use test in Curran, supra, and in this case, constitutes, in my view, a radical departure from the well-established public policy of the State of Montana. Public and private rights to use of waters have been acknowledged by this Court, and the legislature, since statehood.
Recent sessions of the Montana Legislature have considered proposed solutions to perceived water use conflicts between landowners and recreational users, and there has been public evidence that a reasonable and legal solution could have been achieved within the legislative forum. The legislature has always had priority over this Court in fixing public policy, and I would defer to that authority.
Under previously established law, the defendant Lowell S. Hildreth, would have been entitled to a trial by jury, and I would reverse for that purpose.