Recreational Use of Agricultural Lands
| Publication year | 1994 |
| Pages | 529 |
1994, March, Pg. 529. Recreational Use of Agricultural Lands
Recreational agricultural land use would appear to benefit everyone. The landowner receives additional income from his or her property, usually in a manner which does not interfere with the primary or historical agricultural uses of the property. Recreational uses (such as hunting) can be so lucrative that many farmers and ranchers earn as much or more from those uses as from agriculture. Some farmers and ranchers would be unable to continue agricultural operations without the added income generated from permitting or undertaking recreational uses of their property. State and local economies realize increased tourism and tax revenues. The public is benefited by access to private lands that would not otherwise be open and by wider access to public lands, both of which broaden the availability and quality of rural and wilderness experiences for an increasingly urbanized population.
Not everyone is in favor of the growth and promotion of recreational agricultural land use. Some interests see the increase in such uses as destructive of natural resources, detrimental to preservation of wilderness areas or animal habitats or otherwise environmentally undesirable. Some landowners feel that the commercialization and increased public presence associated with these uses threatens historical agricultural land uses, family values and the rural atmosphere which are viewed and valued as an important part of Colorado culture. Others object simply because of the loss of privacy from the many additional people drawn to rural areas.
Governments in heavily populated or environmentally protective areas often decry the loss of agricultural land use and natural resources which frequently results from the opening of desirable rural or wilderness areas to increased public presence and development. This reaction may take such forms as limitations, restrictions or outright bans on certain types of development (zoning and land use restrictions) or impact fees for use or conversion of agricultural lands.
It is clear that private landowners have the right to exclude the public from access to their private lands for recreational purposes. Both civil and criminal remedies are available to protect landowners from trespass.(fn1) However, recreational use of water overlying private land constitutes a special situation.
In People v. Emmert,(fn2) the Colorado Supreme Court (over the vigorous, separate dissents of Justices Groves and Carrigan) affirmed the trespassing convictions of recreational rafters who had attempted to float a portion of a non-navigable stream crossing private lands. In affirming the trial court, the Supreme Court combined the general rule of property law that land underlying non-navigable streams is subject to private ownership vested in the owners of the adjoining lands with the common law rule that the owner of the surface has the exclusive right to everything above it.(fn3) More importantly, the Court rejected constitutional challenges asserting a public right to recreational use of all waters in Colorado.(fn4)
The situation is much more complex where the issue concerns the right to recreational use of water in a man-made reservoir. Whether the landowner or storage right holder has the right to recreational use of the surface of the reservoir depends on the nature, language and basis of the grant creating the reservoir right.(fn5)
If landowners wish to open their land for recreational use, their chief concern is likely to be the avoidance of potential tort liability for injury to the property users. Facing increasing political pressure from both providers and users, and recognizing that tapping the self-interest of landowners would further encourage these types of uses and generate additional revenue, Colorado has provided landowners and certain types of recreational providers with enhanced statutory shields from liability applicable to recreational use of private agricultural lands.(fn6)
In 1965, the Council of State Governments promulgated a model act which would treat consensual, nonpaying recreational users as trespassers for liability purposes, thereby minimizing landowners' exposure to personal injury claims. A number of states, including Colorado, now have public recreational use statutes encouraging private landowners to allow public use of their lands by limiting their liability in this fashion.(fn7) By permitting such recreational use, landowners do not extend any assurance that the premises are safe for any purpose, confer on users the legal status of an invitee or licensee to whom a heightened duty of care is owed, or assume responsibility or incur liability for any injury to person or property caused by an act or omission of the user.
The Colorado statute protects landowners who directly invite or permit "any person" to use their property for recreational purposes. This could conceivably mean that landowners are protected whenever a specific person is invited or permitted on the property or that a general invitation is required. However, it appears to be necessary for landowners to invite or permit recreational use by the general public in order to enjoy the protection of this liability limitation statute, rather than extending the invitation on an individual basis.(fn8)
Interpreting this provision to require general public invitation also is the only means to harmonize it with the tiered liability structure codified in the premises liability statute described in further detail below. In that manner, landowners may have limited liability to members of the general public admitted by generalized permission for recreational purposes under this statute, while still owing a higher standard of care to specific nonpaying individuals (such as social guests) utilizing the property at the express invitation of the landowners.
The protection of this statute is lost where a fee is charged for the recreational use. There are exceptions for consideration received by landowners for leasing land to the state or its political subdivisions and for consideration received from any federal governmental agency for admitting any person to the landowners' land.
The protection of the statute is also lost where, though use of the land is free of charge, there is a relationship between a business or commercial use of the property and the use giving rise to the injury.(fn9) Landowners are not exempt from liability where willful or malicious misconduct is involved or where landowners maintain an attractive nuisance.(fn10) The protection of the statute applies only to the landowner and not non-owner recreational providers.
Most landowners opening their land to recreational use by limited or general elements of the public do so with the intent of monetary gain. For that reason, the user-type and activity-based statutes described below are of much broader application. The premises liability statute enhances the duty of landowners to permissive users over that owed to trespassers and increases it further to business users. The skier and equine statutes are geared to protect providers and landowners associated with specific recreational activities viewed as sufficiently important economically or from a public policy standpoint to merit special protection.
Landowner liability to users of real property in Colorado has historically been governed by common law. This premises liability statute(fn11) attempts to codify standards for the liability of landowners to the various classes of users of their property. The statute as originally enacted in 1986 was declared unconstitutional in 1989(fn12) and was amended significantly in 1990 for that reason. It defines three classes of land users: invitees, licensees and trespassers.
An invitee enters on the land of another to transact business in which the parties are mutually interested or in response to the landowner's express or implied representation that the members of the public are requested, expected or intended to enter or remain on the landowner's property. Recreational customers on agricultural property will fall within this class. A licensee enters or remains on another's lands for the licensee's own convenience or to advance his or her own interests pursuant to the landowner's permission or consent (including social guests). A trespasser enters or remains on the land of another without the owner's consent.
A landowner's liability under the statute differs as to each of the three classes of potential users of the owner's property.(fn13) A trespasser may recover only for damages for personal injury that is willfully or deliberately caused by the landowner. A licensee may recover only for damages caused: (1) by the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or (2) by the landowner's unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.
An invitee may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which the landowner actually knew or should have known. However, if the landowner's real property is classified for property tax purposes as agricultural land or vacant land, an invitee may recover only for damages caused...
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