Jackson v. Burlington Northern Inc.

THE HONORABLE FRANK DAVIS, District Judge, sitting in place of MR. JUSTICE GULBRANDSON,

dissents.

I dissent.

This case is not only one of first impression in Montana; it apparently is only one of two in the entire scope of Anglo-American law.

The majority opinion has disposed of this important case primarily on a real and an imaginative peripheral issue raised by the Intervenor State, e.g., the ownership of the stream bed of a navigable stream. I say “imagined” because the opinion actually injects a recreational concept of navigability which, at least up until now, has never been determined by…