On a spring day in 1877, a man named George Carter drowned while pushing railroad ties down Utah's upper Weber River.
Carter's memorial sits atop a bluff overlooking the river near Oakley, offering a testament to pioneers' persistence and willingness to risk everything to build a new civilization in the West's valleys, mountains and deserts.
The chunk of engraved granite also helps prove that stretch of the Weber was once a navigable "highway of commerce."
If logs made it down the river, stream access advocates argue, the Weber's bed is sovereign state land, open to anglers and floaters.
"My clients only want to exercise the same rights Henry Somsen, George Carter, George Kidder exercised in the 1870s," argued Cullen Battle, an attorney for the Utah Steam Access Coalition, in closing arguments last week in 3rd District Court.
"Those were rights these men took for granted," Battle said. "They didn't seek permission. They didn't seek a right of way and they certainly didn't apply for eminent domain. They just went out and did it because the Weber was a highway."
Whether these long-ago log drives qualify the upper Weber as "navigable" is the key question in a legal dispute over recreational access to the Weber.
Private property owners along the waterway say logs don't count; the river had to carry boats in its "ordinary and natural state" to be considered navigable. No passengers traveled that stretch of the river around the time of Utah's 1896 statehood, according to attorney Anthony Schofield.
"The Weber is a small river that has never served as a highway for boat or barge travel," Schofield told Judge Keith Kelly. "It was used for a few years to transport logs and railroad ties, but evidence is clear by the late 1880s, that was all done overland."
The judge completed a fifth and final day of trial Wednesday. He expects to rule in the next week or two, and his decision is sure to be appealed.
The trial in Kelly's Salt Lake City courtroom was the latest legal skirmish in a long-running battle pitting anglers against Utah riverside landowners.
Utah's Legislature stepped in on the side of property rights when it passed the "Public Water Access Act" in 2010, which empowered landowners to restrict access to streams crossing their property, but only if they are not deemed navigable.
Boaters can still float rivers through private land, but they may not stop or step on the bed or bank.
Such restrictions make fishing impossible, says access coalition president Kris Olson.
Another lawsuit over stream access is headed to trial in August in 4th District Court. In that case, the access coalition has sued over the Provo River and seeks to overturn the 2010 law. The state constitution declares Utah's waters a public resource, which must be managed to allow access, according to the suit.
The Weber suit seeks only to assert public ownership of the bed under a 25-mile stretch from the headwaters at Holiday Park to Rockport.
The case zeroes in on a one-mile stretch near Peoa where the river passes through or over — depending on your perspective — property owned by John Fuller Park, Stewart Grow and the Stembridge family.
The owners actively discourage floating and fishing, putting up no-trespassing signs and stringing barbed wire across the river, according to the suit.
The access group, whose members include anglers, birders and paddlers, contends title to the stream bed should have passed to the new state when Utah joined the union in 1896 because at the time, the river was important to commerce.
But Stewart Grow had no inkling the river running through land he acquired in 1994 could be construed as a public highway, according to Schofield.
"He has paid taxes on the river bed that the plaintiff now asserts is public property," Schofield said. "Now a century after statehood, there is a claim attacking [his] ownership. He owns the property that anglers pull their boats up on."
The state has never asserted a claim to the river bed, although it has aggressively litigated claims to the beds of the Bear and Great Salt lakes, not to mention thousands of faint roads over federal land.
Historical records portray the Weber as a working river that played a pivotal role in the lives, work and even deaths of pioneering lumbermen, stream access advocates contend.
"The traces of what they did may be faint, a journal entry, a lonely grave overlooking the river," Battle said, "but it happened."
In 1852, Robert Gardner surveyed the Weber River for floating timber and over the next few decades thousands of railroad ties, mining timbers, saw logs and cordwood came down, according to Weber State University historian Sara Dant, who testified as an expert for the plaintiffs.
Testifying for the property owners was historian Thomas Alexander of Brigham Young University, who agreed log drives occurred on the Weber, as well as the Bear, Smith's Fork and the Provo.
The historians' opinions diverged on the regularity and size of the log drives and their importance to Utah's nascent economy.
According to Dant's review of 200 primary and secondary sources, the rivers provided a vital link between raw materials and the critical industries of the late 19th century. Simply put, the Weber helped build the railroads and Park City mines and put thousands of men to work felling and hewing the Douglas fir and lodgepole pine growing in the Uinta Mountains.
"More importantly, it provided wage-paying work for people in the Weber Valley who had few opportunities for such employment," Battle said. "These uses may have been seasonal, but they were regular. Spring flows were not only regular enough to be depended on, they were regular enough to organize an entire industry around."
The state intervened in the case, but without staking out a formal position.
State historians have documented eight attempts to float timber down the upper Weber between 1877 and 1890, two of which failed because of low water, according to Assistant Attorney General Michael Johnson. But what may matter more is not whether log floating occurred, but whether the river was "susceptible" to such use at statehood.
Alexander testified that the upper Weber proved impractical for moving timber, which required careful tending to ensure successful passage and logs were sometimes left stranded in the river.
"Loggers had to alter the natural and ordinary conditions of the Weber River — building up the banks or blocking off side streams — to make the drives successful," Schofield argued.
The river channel broadens into braided ribbons by the time it reaches the defendants' property, making smooth passage all but impossible, he said.
Even fishing boats and rafts today can't get through without scraping the bottom, according to property owner Michael Cornu, who is not a defendant in the suit.
"The fishermen are asking for a ruling based on a high flow to float logs, but that high water level is one month of 12," said Cornu, himself an avid angler, in an interview. "The irony is the fishermen would use it in the other 11 months of low water."
Because log floating was such a challenge, lumbermen moved their milling operations into upper Weber Canyon by the 1890s to be closer to the forests far upstream, according to Alexander, and the finished wood was hauled over trails.
"The Supreme Court said there must be trade and travel, it didn't say trade or travel," Schofield argued. "It's a stretch to say that log floats alone constitute both trade and travel."
bmaffly@sltrib.com
