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Like many boys who read and enjoyed The Adventures of
Huckleberry Finn,
I found an inspiration. The South
Platte River flowed just a mile or two away from our home
in Evans, and certainly my boyhood friends and I could find
enough driftwood along its banks for constructing a
raft.
Like Jim and Huck, we could escape from those who sought to civilize us, though it would take us a while to get to the mighty Mississippi -- down the South Platte to its junction with the North Platte in distant Nebraska, down the Platte to join the Missouri and eventually the Father of Waters all the way to New Orleans.
We pursued this notion to the extent of reconnoitering the river near the railroad bridge that led to LaSalle. One of our discoveries was thigh-deep mud. We also found a neat place to spear carp with pitchforks. But the main discovery was that there were barbed-wire fences across the river, and those looked like serious impediments to our plans.
We wondered how anybody could fence off a river when, as we all knew from reading Mark Twain, it was a grand route to adventure that should be open to all daring boys. After all, if we managed to float by without touching any land, we could hardly be trespassing, could we?
In the 40 or so years since then, I've learned that even the trappers of the 1830s and '40s had a terrible time getting anything to float down the fickle South Platte, and so our raft trip was pretty much an impossibility, even if the rivers had been fence-free all the way to the Gulf.
But nobody seems to know whether you're trespassing when you're floating over private property in Colorado.
At one point, I thought the issue would be settled by the courts. The Emmert case began in 1976 in western Grand County when several people arranged to get themselves arrested for trespass while they were floating in the Colorado River over land owned by rancher Con Ritschard.
Ritschard's deed clearly included the river bed, and he had paid taxes for the land under the river. The floaters were duly convicted, and of course appealed. In 1979 the Colorado Supreme Court upheld the conviction.
But in 1978, the legislature changed the definition of criminal trespass, and in 1983 the state attorney general interpreted that to mean that floaters who didn't touch anything sold weren't trespassing.
So which is binding? The issue has been in that sort of legal limbo ever since, and there are lots of other complications.
Assume that it is trespass if you float over someone's land. But many deeds just extend to the centerline of the channel, so which landowner is injured by the trespass? Suppose one doesn't care and the other is patrolling with a scattergun?
But if all navigable streams
become public
routes, do you then have the right, when the river is
frozen over, to skate, ski or snowmobile along the course?
After all, you're just on the water, albeit frozen water,
just like those summer floaters.
Does this right to float extend to the rancher's barns and corrals if there's a flood, or is it only in the normal course of the water, whatever that is?
And what's navigable
can change with technology.
Twenty years ago, rough river stretches like The Numbers
north of Buena Vista and Gore Canyon west of Kremmling were
essentially impassable to rafts.
That's because the rafts would fill with water in the
rapids, making them almost impossible to maneuver while the
crew bailed furiously. It was like trying to steer a
waterbed down a flight of stairs,
according to Stu
Pappenfort, now the head ranger at Arkansas River
Headwaters State Park. You had no control for a couple
of hundred yards, at least, and you might end up in a
deadly hole that you would have avoided -- if you could
have.
But the self-bailing raft came along in the mid 1980s, freeing the crew to paddle and steer, rather than sling buckets, and now there are commercial trips through The Numbers, Gore Canyon and like places.
A landowner who didn't mind the occasional daredevil kayaker in 1980 might well feel invaded by dozens of commercial trips going past his back porch in 2001.
And is the right to float over property merely a right to traverse it, or can you tarry and throw a line into the water? That gets tricky when the banks and bed are owned by private fishing clubs or lodges who have invested in improving the fishery -- only to face the prospect of floating freeloaders.
But on the other hand, the waters and wildlife of Colorado are, at least in our state constitution, resources that belongs to the public.
How to resolve these conflicts? Our legislators should do it, but they'll probably wimp out (not wishing to alienate either property owners or the recreation industry) and thus there will be years of expensive litigation.
That's a depressing prospect, and it inspires thoughts of reconsidering those Huckleberry Finn plans -- just get on a raft and float away from it all.
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