Cleveland Reservoir North Shoreline
Why "No Trespassing Signs" Now?
Because:
The north shoreline of Cleveland Reservoir has always been private property. See the map below. The original owners neglected to protect this property, so the public has had unfettered use of it for years. But now there is a new owner, who wants to use his own private property. Sensitive to the the historical use of this property, the new owner went to great lengths to make a deal where the Forest Service would own over 9 acres of the north shoreline property, and keep it available to the public, and even improve the access with a road, a parking lot, a boat launch and a toilet. But the Emery County Commissioners did not feel that the amount of land that was being acquired by the Forest Service was enough, so that deal fell through. Then Commissioner Jordan Leonard suggested that the Forest Service trade their current east side campground for the majority of the north shoreline. Although not acceptable to the current landowner at first, he finally decided that he would make the somewhat lopsided trade. He would accept the privacy and seclusion of the small campground for his cabin site, while giving up the much superior lake access and much better beach area to the Forest Service to give the public continued access to the majority of the north shoreline. He hoped to gain public favor and give the Commissioners the much greater north shore access that they wanted for the public, with that exchange. However the Forest Service was not willing to give up their current campground in order to make the exchange. With none of his proposals being accepted, his last option was to post his property as required to secure his private property rights. Read below for the details including the legal balance between historical public use and private property rights. Unless the public could convince the Forest Service that they would prefer the North Shore to the existing campground - lake access from the North Shore is going to be very limited.
What was proposed:
Recognizing the past public use, the new property owner spent months working out a deal with the Forest Service, where they would gain ownership of part of the north shoreline, guaranteeing ongoing future access for the public. The owner also committed to improving that access with a gravel road, a boat launch, a gravel parking lot, and an improved dirt road along the shoreline. The Forest Service would add a Vault Toilet and a trash bin. See the letter of Intent from the Forest Service:
Unfortunately:
The Emery County Commissioners did not approve this deal, shown below: They wanted public access to the entire north shoreline, even at the risk of eliminating all of the proposed improvements and killing the deal with the Forest Service. Apparently they thought it was better to try and keep the public using more of the unimproved area on private property, than be seen making any kind of deal limiting access. They preferred to go to court and let the court decide how much access the public can get on the private property.
Historical Public Use of Property vs Private Property Rights
What is the Legal Case at Cleveland Reservoir?
Historical Use:
Due to neglect by the former owners, the public has had decades of unfettered access to the private property on the north shore of Cleveland Reservoir.
Those accessing this property created 5 unapproved exits from highway 31 onto this private property, by just driving off the edge of the pavement. In coming and going, they severely damaged the property, killing the vegetation and digging deep ruts into the soil. Because the hillside is steep, the ruts have since eroded so deeply that in many places the area is impassible. Where that has happened, they then just went around the damage and created new ruts and erosion.
No one has ever taken responsibility for fixing any of the damage.
In addition to tearing up much of the property, the public has also littered the whole area. The current owner walked his shoreline property and collected or noted the following:
- 26 soda cans
- 9 beer bottles
- 2 cardboard boxes
- 3 areas where someone took a dump and left their feces and toilet paper
- 3 cigarette lighters
- one old cooler
- a ball of fishing line
- 1 tire
- 1 broken kids fishing pole
- 2 cans of chew
- other general garbage
- No one takes any responsibility for the litter and human waste left on the property.
Also, of the 5 access points off highway 31, that the public illegally created, 3 are very dangerous. When driving back onto the highway, the access is quite steep, which limits visibility of any oncoming traffic. To get onto the highway, because of the steepness, one must accelerate directly into the traffic lane. Will continued illegal use of these access points result in someone getting killed? Dan Hinckley of UDOT and the current owner want to close them.
Another example of illegal public access is winter sledding using part of this private property on the north side of highway 31. The hill they use ends up directly onto highway 31. In January of 2024, Kirsten Beagley was killed when her tube ended up on the asphalt.
No one takes any responsibility for the unsafe nature of the public use of this private property that was created haphazardly, with no County Planning involvement.
Those advocating for ongoing public access to this private property need to justify the irresponsible consequences of such access. It seems irresponsible for anyone to defend and protect the historical public access and at the same time deny any responsibility for the damage, the litter, and the safety issues that entails.
Current Situation:
In 2022, Tightline Timbers LLC purchased the Bear Canyon Ranch, and became the new owner of the private property which includes the north shoreline of Cleveland Reservoir. Unlike the previous owners, the new owner wants to use his property. That includes cooperating with UDOT to close the dangerous access points, and to secure the safer access points that come from paved pull-outs. That also includes building a legal cabin, selling a 40 acre building lot, and making other improvements to his private property.
That raises the question of what rights does the public have to continue to make widespread recreational use of this private property in light of their decades long historical use? The Emery County Commissioners and the County Attorney have expressed their desire to maintain as much public access as possible to this private property.
There are four laws that could apply to this question:
Prescriptive Easement:
A prescriptive easement might be established when a specific use has taken place for 20 years. That could apply in the case of the public using the shoreline of Cleveland Reservoir for 20 years or more. However: “Simply claiming an easement right by implication, necessity, or prescription is not sufficient, no matter how strong the evidence that the right should be recognized. In order to formally establish the easement as a property right, the owner would need to either enter an agreement with the owner of the property being used for the easement, or file an action in court to prove that the easement right has been established.” - Utah State Property Ombudsman website
No agreement has ever been entered into. No Court action has taken place. At the present time, there is no Prescriptive Easement right for the public that has been legally established on the Cleveland Reservoir private property.
This issue will have to be taken to court by the County Attorney. Courts seek to balance the interests of the easement holder and the property owner. The easement should not unduly burden the property owner or prevent them from making beneficial use of their property, beyond what is necessary to accommodate the easement. In some cases, it might be possible to modify or terminate a prescriptive easement if it can be shown that it significantly impairs the property owner’s use of their property.
An easement does not grant the right to damage or destroy private property. The County Attorney would have to show that the public can access the shoreline property without damaging it, which would require someone other than the private property owner to improve the access. Who will pay for that? Who will maintain it?
In July of 2021, a prescriptive easement case was settled in Salt Lake City, with similar characteristics to the Cleveland shoreline. Like Cleveland, there had been multiple routes across the private property established for the requisite number of years. Here is the case:
HOLDINGS LC v. 200 SOUTH LLC (2021)
Court of Appeals of Utah.
M.N.V. HOLDINGS LC, Appellant, v. 200 SOUTH LLC, Appellee.
No. 20200626-CA
Decided: July 09, 2021
16 However, even if a claimant is able to show continuous use of more than one route over the servient estate for the requisite number of years, that claimant is not necessarily entitled to multiple easements. In that situation, the court may, as a matter of equity, choose to designate only one of the proven routes as the defined prescriptive easement, or redefine the path to avoid unduly burdening the servient estate.
8….MNV's use was confined to the three discrete Routes and was not “indiscriminate over an entire area,” see 28A C.J.S. Easements § 32 (June 2021 update) (stating that the prescriptive easement requirements are “not satisfied when the use is indiscriminate over an entire area”)
Note that in clause 8, the indiscriminate use of the private property that has taken place on the shoreline of Cleveland Reservoir might disqualify it from a “prescriptive easement” altogether.
Eminent Domain:
In Utah, as in other states, the government has the power to exercise eminent domain to take private property for public use, provided that just compensation is paid to the property owner. Besides compensating the owner at fair market value, the government must establish a public need that cannot be met in any other way. The Cleveland Reservoir already has a public campground, and 2/3 of the shoreline is already available to the public. If Emery County can actually establish in court that there is something about the north shoreline that the public needs and cannot get in any other way, then it will need to be prepared to spend several million dollars at fair market value to acquire the land. And after it is acquired, where will the budget come from to responsibly manage this property?
Public Waters Access Act:
Since the principal use of the Cleveland shoreline has been to access the lake, for fishing and boating, a new Utah Law might have application. The Public Waters Access Act was passed by the legislature in 2010. But it only became law, after years of court challenges, by decision of the Utah Supreme Court on May 24, 2023. It greatly strengthens the rights of private property owners:
- the Utah Constitution's specific private property protections, including recognition of the inalienable right to acquire, possess, and protect property and the prohibition on taking or damaging private property for public use without just compensation, protect against government's broad recognition or grant of a public recreation easement to access or use public water on private property;
- general constitutional and statutory provisions declaring public ownership of water and recognizing existing rights of use are insufficient to overcome the specific constitutional protections for private property and do not justify inviting widespread unauthorized invasion of private property for recreation purposes where public access has never existed or has not existed for a sufficient period and under the conditions required to support recognition under this chapter;
- its intent to foster restoration of the accommodation existing between recreational users and private property owners before the decision in Conatser v. Johnson, affirm a floating right recognized by the court in J.J.N.P. Co. v. State, and recognize adverse use as a constitutionally sound and manageable basis for establishing a limited right of public recreational access on private property in accordance with this chapter.
The limited right of public recreational access was deemed necessary in this case, when there was no other access to the water available. In the case of Cleveland Reservoir, the public already has access to 2/3 of the shoreline of the lake via existing Forest Service property. In this case, there may be no additional right needed at all.
Rights of Way Act:
Rights-of-way Act
72-5-104. Public use constituting dedication -- Scope.
1- As used in this section,"highway," "street," or "road" does not include an area principally used as a parking lot.
Note: This act refers to highways, streets or roads. If the public has used one of those types of thoroughfares through private property for 10 years, the state can claim it for public use. However, if the PRINCIPAL use of the highway, street or road is for parking, it is exempted from public use dedication. This exemption does not say SOLE use; only PRINCIPAL use. The principal use for all the roads on the shoreline of Cleveland reservoir is to PARK. Park and launch a boat. Park and go fishing. Park and trespass on the private property off of the road itself.
“But the destination for the roads is the lake. Getting to the lake is the principal use.”
Answer: Every parking lot supports getting to a destination beyond itself. Park and go to a store to shop. Park and go to a building for work. Park and take Frontrunner to a different city. Park and fly to a foreign country. The Parking Lot is still a parking lot, whose principal use is parking, no matter the final destination. Vehicles which use the roads on the Cleveland lakeshore principally park. Having a final destination, after parking, does not disqualify the road from being a parking lot.
These roads on the shoreline of Cleveland Reservoir are principally used for Parking, and as such are exempted from being dedicated as a public use “Right-of-Way”.
Legal Summary:
The current owner of the private property on the shoreline of Cleveland Reservoir has every right to protect his property from trespassing, damage, littering, etc. He will post signs, and put up barriers to do so. He will prosecute trespassers and those who destroy property. He does not need anyone’s permission to completely block public access to his private property.
Legally, the burden is on Emery County to take the matter to court if it thinks it can establish a prescriptive easement right (or some other right) to some of the private property for public use. The new owner believes he has a strong case to defend his rights, and is prepared to spend the time and money to do so.
Until such a case is settled, the public will lose all access to the private property. After it is settled, we see no case where the public’s current widespread access can be maintained. Some sort of limited access may be possible, but there is also no case where the owner can be mandated to provide any improvements to the rutted roads. The best case scenario for the County and the public in a legal battle will be to get some limited unimproved access.
There have been two generous alternatives to a legal battle accepted by the current owner. But neither alternative has been accepted by all of those with the authority to do so.
Commissioner Jordan Leonard proposed a new solution
A Land Swap Alternative
Commissioner Leonard proposed that the Forest Service swap its current campground, with the landowner, for the majority of the north shoreline. This would give the landowner a more secure and private location for a cabin. Initially the landowner did not want to give up his best beach access, and surrender the most level and most useful area of the whole reservoir shoreline. Very reluctantly, however, the landowner decided to go along with this lopsided proposal, because he did not want to create enemies with the public. However, the Forest Service has indicated that they are not interested in this offer, although they concede that the public much prefers the north shoreline access to the lake, over the very limited access provided by their small campground at the lake. Boats can't be launched from the campground shoreline, for example. But they will not give up their current campground in order to get the great majority of the north shoreline.
Since no deal seems possible, the landowner must settle the issue of historical use vs private property rights in the court, and have a ruling on what limited access the public is legally entitled to. But the landowner must establish his rights by posting and protecting his property. The length of time that the public will be completely blocked from the north shoreline private property will now be in the hands of the court system.
The landowner has agreed to two different and generous proposals. Both proposals would have given the public much improved access with roads, parking, toilet, and boat launch. Both would provide for safer access to highway 31. Both would eliminate the current destructive erosion of the highway edge and the property, and both would eliminate the current irresponsible littering and destruction of the landscape. And both would guarantee the public more legal access on into the future than they are likely to get with a legal ruling. But at this point, the landowner's best efforts have been turned down by one party or the other.