## Facts

- Defendants entered the Colorado River from public land on July 3, 1976, for a downstream float trip.
- The river flowed through and bisected a ranch owned by the Ritschard Cattle Company, and the relevant reach varied in depth from about twelve inches to several feet.
- Defendants floated in rafts that allowed occupants to extend legs into the water and, as needed, touch the riverbed to steer, avoid obstacles, and remain in the main channel.
- While floating through the ranch, defendants intentionally and repeatedly touched the riverbed but did not step onto the banks, shoreline, or islands.
- Defendants lacked permission to float through the ranch; two had been warned previously that they had no permission.
- For purposes of the case, defendants stipulated the river segment was non-navigable and not used for commerce.
- Defendants were charged and convicted, on stipulated facts, of third-degree criminal trespass under § 18-4-504, C.R.S. 1973.

## Issues

1. Whether Colo. Const. art. XVI, § 5 (declaring waters of natural streams to be public property) grants the public a right to float and fish on a non-navigable natural stream as it crosses privately owned land without the owner’s consent.
2. Whether intentional contact with the bed of a non-navigable stream on private property, while floating without permission, constitutes third-degree criminal trespass.

## Decision

- The Colorado Supreme Court affirmed the convictions.
- Article XVI, § 5 was interpreted as allocating public ownership of water for appropriation and use, not as creating a public easement for passage or recreation over privately owned streambeds.
- Because the reach was stipulated non-navigable, the riverbed was treated as privately owned property, and the landowner had the right to exclude unauthorized entrants.
- Defendants’ knowing, unauthorized physical contact with the privately owned riverbed supported a finding of unlawful entry for third-degree criminal trespass, despite their not leaving the rafts.

## Legal Principles

- Colorado’s constitutional declaration that stream waters are public property concerns water rights (use and appropriation) and does not, by itself, create public access rights over privately owned beds of non-navigable streams.
- Ownership of the bed of a non-navigable stream generally rests with adjacent landowners, who may exclude others absent a recognized easement or other legal authorization.
- For criminal trespass, “premises of another” can include a privately owned riverbed; intentional, unauthorized contact with that bed, with knowledge of the lack of permission, can constitute unlawful entry.
- Recognition of a broad public recreational easement over non-navigable streams is a policy matter for legislative or constitutional change, not judicial creation in this setting.

## Conclusion

The court held that the public’s ownership of natural stream waters under the Colorado Constitution does not authorize floating or fishing through privately owned, non-navigable stream segments without consent, and that knowingly touching the privately owned riverbed while doing so may amount to third-degree criminal trespass.


People v. Emmert, 597 P.2d 1025 (Colo. 1979)