Day v. Armstrong

In Day v. Armstrong, 362 P.2d 137 (Wyo. 1961), a member of the public sought a declaration that he was entitled to fish "either from a boat floating upon the river waters, or while wading the waters, or walking within the well-defined channel of" the North Platte River where it crossed privately owned land. The Wyoming Supreme Court denied the plaintiff's request to fish by any means other than floating, reasoning that because waters are not "in trespass upon or over the lands where they naturally appear, they are available for such uses by the public of which they are capable. When waters are able to float craft, they may be so used." The Day court limited the scope of the public's easement to the "right of floatation" upon the water and allowed only those activities that could be done "while so lawfully floating . . . including the right to hunt or fish or do any and all other things which are not otherwise made unlawful." Thus, the right to hunt, fish, and engage in other lawful activities was modified by the right to float. That is, they could be done only while floating and only because floating occurred "upon" the water.