*1 ACCESS, INC., MONTANA COALITION FOR STREAM Respondent, Plaintiff and MONTANA DEPART FISH, MENT OF WILDLIFE AND PARKS involuntary MONTANA, STATE OF Plaintiffs and Re CURRAN, spondents, v. DENNIS MICHAEL Defendant Appellant. No. 83-164. Submitted Jan. 1984. May 15, Decided 1984. Rehearing June Denied 1984. P.2d 163.
Jardine, Weaver, Stephenson, Blewett & Alexander Falls, Curran. Blewett, III, for argued, Great Goetz, Boze- Dunn, argued, H. Goetz, & James Madden Access. man, Stream for Mont. Coalition Fish, Wildlife Bradshaw, Helena, Dept, of argued, Stan & Parks. Lands. North, Helena, Dept, State
John F. argued, Missoula, J. School, Vincent Stone, U M Law Albert Federa- Kozakiewicz, Fed. and Mont. Wildlife Nat. Wildlife Missoula, and Wool tion, Mont. Stock Murphy, C. Daniel Unlimited, Coil, Growers, Helena, Mont. Trout Michael Bozeman, for curiae. amicus Opinion delivered the
MR. CHIEF JUSTICE HASWELL of the Court. (“Curran”), a Rule appeals D.
Appellant Michael Curran 54(b)-certified partial summary entered favor judgment Access, Stream Inc. plaintiffs, Montana Coalition for (“Coalition”), Montana, Depart- the Montana the State Fish, Department of ment of State Lands and the Montana Wildlife and Court held that Parks. District Dear- have a streambed of the use waters and the through born up high River mark as it flows water of Montana owns the property Curran’s and that the State the low marks. The District streambed between water inverse con- Court also Curran’s counterclaim for dismissed We demnation. affirm. sixty-six miles approximately long
The Dearborn River is Di- east of the Continental originates along slope in a generally The river flows vide west-central Montana. Scapegoat southeasterly from source near direction its Mountain, of Au- miles southwest approximately thirty Montana, gusta, the Missouri River. moun- through twenty
The first miles of Dearborn *4 terrain, which is canyon twelve miles of roughly tains and it the Wil- within the After leaves Scapegoat Wilderness. con- area, rolling and emerges plains the river onto derness miles, again it twenty-nine tinues its flow about where enters a moderately region. timbered It then extends an- other seventeen miles and enters the Missouri River near Craig, Montana.
The Coalition is a nonprofit corporation Montana formed promote to rivers. Individual access Montana’s members of the Coalition use the stretch the Dearborn running through property pursuits Curran’s for recreational such as floating fishing. and Some members the Coalition who attempted have or floated to float the have Dearborn experienced and from or interference harassment Curran his agents. Co.,
Curran principal and Curran Oil of which he is a stockholder, have extensive holdings land Lewis Clark and Cascade Counties. leases Curran also holds some Ap- state lands which the Dearborn through flows. proximately six through to seven miles of the Dearborn flow or property by owned controlled Curran. About four and im- one-half sections Curran’s land on Dearborn are mediately upstream point Highway from the at which U.S. 287 crosses the six sec- Dearborn about and one-half tions, section, including one from isolated downstream Highway 287. por-
Curran claims title to the banks and streambed of tion right, have the Dearborn River and claims to an of private property, owner to restrict its use.
The essentially District Court held that the Dearborn purposes River fact for recreation law; Montana is determined that recreation access it according namely, navigability state law to one criterion — purposes; question for recreation of recrea- state, not fed- according tional access is to be determined eral, law. parties: following issues are raised application
1. in its Whether the District Court erred purposes. title navigability federal test of summary 2. in granting Whether the District Court erred judgment on issue of the Dearborn.
43 determining in that 3. the District Court erred Whether navigable. fishing make a stream recreational use and in Curran’s dismissing 4. the District Court erred Whether for condemnation. counterclaim inverse Coalition, of Department 5. of the Whether claims of State Fish, Department Parks and the Wildlife and in- name for failure to been dismissed Lands should have 19, dispensable parties Rule M.R.Civ.P. this action. standing bring has
6. Whether the Coalition matter subject lacked 7. Whether the District Court jurisdiction. log-floating test of adopted
8. has Whether Montana navigability. commercial navigable
9. under the fed- Whether the Dearborn River is eral commercial use test.
I. first issue District The to be addressed whether naviga- in Court erred federal of application its of the test bility for title purposes. by Court miscon-
Curran maintains that the District erred navigabil- applied the law in struing determining to be ity admitted to of the Dearborn at the time Montana was the Union. held, par has and all Supreme
The United States Court navigability ties agree, that federal law controls the issue Company Oil and Gas Brewer-Elliott purposes. title 60, United States (1922), 43 S.Ct. 67 L.Ed. 260 U.S. 140. that purposes provides law on navigability
Federal title The in fact. navigable in navigable rivers are law which are (10 Wall.) Ball (1870), L.Ed. 999. Daniel U.S. 19 used, they or are they are “And fact when condition, used, ordinary their susceptible being commerce, are or highways for over trade and travel which of trade may customary be conducted in the modes Ball, supra, The Daniel at 563. travel on water.” the United States Supreme its holding Court elaborated on Ball, The Daniel supra, and stated that . . the true test of navigability aof stream does not on depend is, mode conducted, which or be commerce nor the difficulties attending navigation. so, If this were deprived would be many of the use of large rivers of the country . . . capability use purposes transportation and commerce affords true river, criterion of a rather than the ex- use.” The Montello tent and manner of U.S. (20 Wall.) 430, 87 391. L.Ed.
Navigability
fact under federal
law can be determined
*6
Montello,
The
by
Supra; Sierra Pa
the
log-floating
test.
Co.,
Power
v. Federal Energy Regulatory Commission
cific
_
(9th
1982),
1134,
denied,
Cir.
681 F.2d
cert.
U.S.
-,
Oregon
State
(1983);
S.Ct.
Riverfront
(9th
Protection
1982),
Association
In
Cir.
The in supplied by evidence this affidavits competent historians, two demonstrates that the Dearborn 1887, River in years was used two before Montana state hood, approximately 100,000 to float railroad ties. Further more, in 1889, year 1888 and one or log per two drives were floated down Dearborn. One drive 1888 contained 700,000 Clearly the log- board feet. the Dearborn satisfied floating for navigability test under the federal test of navi gability title purposes. log-float
Since was under navigable the Dearborn ing 1889, test at title to the time of statehood by government prior riverbed was owned to federal statehood and was the State of Montana transferred upon admission to the Union. owner- dealing landmark case with state and federal Martin v. Wad-
ship
navigable
underlying
beds
waters
(16 Pet.) 367,
In deliver-
dell
(1842),
States admitted to the Union
theory
on the
rights
thirteen succeeded to the same
thir
acquired by
original
lands
the United States from the
teen
were held
foreign governments
colonies or from
they might
be admit
trust for the new states
order that
Pollard’s
states.
equal footing
original
ted on an
with the
(3 How.)
Hagen
Lessee v.
212,
“By the as is now well Territories, being and States, the having rightfully acquired them, upon only impose can laws government the which and mu- national sovereignty, entire dominion and have the Territories, long state, so all the nicipal, Federal and over in territorial condition. they remain a [Citations omitted.]
46 States,
“The of in Congress disposing the United lands, has constantly upon theory acted the that lands, interior, coast, those in whether or the above the on mark, high water up by occupants, be taken actual but that order encourage country; the settlement of the them, the waters and soils whether the tide, within or above the ebb shall be and the and flow of public highways; being chiefly and, remain valuable the public purposes navigation fishery, commerce, and and of improvements necessary promote the and to secure during purposes, granted away pe- those shall not be the government; but, riod territorial case unless in some duty public exigency, be held international or shall States, United and States trust shall vest future organized States, several when and admitted into Union, all powers prerogatives appertain- with and ing to the older States in to such waters and soils regard short, shall not be within respective their jurisdictions; disposed piecemeal private property, to individuals as purpose but shall as a for the ulti- being be held whole mately with for benefit administered dealt State, completely it shall become organ- after have added.) ized community.” (Emphasis Patton on Titles states that as a addition, attri- further many years bute the states have assumed for sovereignty, power law ques- to determine as a matter of local Jordan Hardin v. (1891), tion of navigable, what waters are 371, 140 boundary U.S. 11 S.Ct. L. Ed. Pollard’s ownership. therein private between state and Hagan Lessee v. (3 How.) L. Ed. U.S. country holds “During 565. the time that the United States can, territory, sovereignty, as a it holder of local as the private make owner- determination between state and [the However, so, it has never done ship], with the natural as- sumption it matter control of each had left the for the 1 Patton state when to the union.” organized admitted
47 Shively Bowlby, citing Titles, on Section 129 (1957), 152 added.) (Emphasis U.S. at 14 S.Ct. at 569. importance title Of further issue of to the theory underlying is the this Public Trust Doctrine. through Magna doctrine can Law be traced from Roman present day Carta to decisions. clearly Illi
The Public Trust Doctrine was first defined nois Central U.S. Railroad v. Illinois S.Ct. 36 L. Ed. 1018. In this case the United States Supreme upon Court the was called determine whether convey, by legislative State of Illinois had the grant, portion Michigan Chicago’s of harbor on Lake the Illinois Central Railroad.
“That the State holds the title to the lands under the nav- igable Michigan, limits, waters of in the Lake within its same manner that the under tide State holds title to soils already water, law, shown, the common have and that we necessarily title carries it over the waters above with control subjected them whenever the lands are to use. ... It is a people they title held trust for the of the State that enjoy navigation carry waters, the of on commerce over the liberty fishing them, and have freed from the ob- of therein private parties struction or . . . The trust interference of only devolving upon public, the State and which can for the discharged by management property be the and control of public relinquished interest, in which the an cannot be has property. a transfer of The control of the State for except purposes lost, as to of the trust can never be parcels promoting such the interests of are used public disposed any therein, or can of without substan- be impairment and wa- tial of interest in the lands remaining more abdicate its ters . . The State can no . people property trust over the whole inter- in which them, ested, so as to like waters and soils under private entirely leave them use and control under the of parties, except parcels mentioned the instance of navigation improvement waters, and use parcels disposed impairment or when can be without remains, interest in what than it can abdicate police powers government its in the administration of added.) preservation (Emphasis peace. Illinois Central, 146 U.S. at 13 S.Ct at 118. 452-453, *9 summary, “equal-footing”
In doctrine as set forth supra, gov Lessee, in Pollard’s which held that the federal navigable ernment retained title to waters so that all states entering subsequent original the Union to the thirteen “equal footing” would enter on an and the Public Trust provides Doctrine, which that states hold title to waterways in trust for the benefit and use are two important determining doctrines to be considered a navi gability-for-title question. log-floating matter, In this properly applied test was and the State found to hold title matter, to the riverbed of the Dearborn. this where title State, to the bed of the Dearborn rests with the the test of navigability title, use and not for is a test to be deter mined under state law and not law. federal
Curran maintains that he holds title to the riverbed patent predecessor-in-title. virtue of a issued to his How patent ever, the issue of the was raised the Dis not before only presented appeal trict Court and was on to this Court. Consequently, upon we decline to rule the matter of the patent.
II. second issue to be considered is whether the Dis summary granting judgment trict Court erred on the is navigability sue of of the Dearborn River. granting summary judg-
We find no error of the depositions ment. The affidavits and of the historians admissible in Rules of Evi- evidence the Montana qualified expert dence. The historians witnesses history testimony provided their evidence of the depositions cir- Dearborn. Their affidavits and also disclose guarantees cumstantial The facts of trustworthiness. reasonably type was of a upon by experts data relied these field, under those cir- upon by experts relied in their cumstances, Rule 703 evidence. need not be admissible Mont. R. Evid. of Cur-
Such not to the affidavits regard was the case with under our ran’s were worthless witnesses. These affidavits of mate- evidence, any genuine rules of issue did not create River rial of the Dearborn concerning fact not admissible at the time of Montana’s statehood and are in evidence on this issue.
Furthermore, summary judg- Curran filed a motion pub- ment River is a plaintiff’s on claim that the Dearborn lic his lands way, right has a to enter on purposes, between the water marks for recreational high IX, and that Art. Section of the Montana Constitution provides plaintiff The motion to use the Dearborn. there is summary judgment on issues states that these genuine no and that issue of material fact on the issues Curran is matter of law. This judgment entitled to as a *10 contrary the position appeal. he takes on
III. The in de- third issue is the District Court erred whether make a stream termining fishing that recreational use and navigable. We find no error. upon pub- concept determining navigability of based cases, earlier de-
lic recreational use is not new. One of the in cided held: nonnaviga- navigable
“. . . and the division of waters into private and way dividing public ble is them into but form, every waters, which, in civilized classification some —a de- being largely nation has the line of division recognized; times, early about by habits. In termined its conditions and which only except, perhaps, fishing, the the use — —to waters, and put public people England had occasion was adapted, waters were only about the use to which such were purpose suited to that navigation, only and the waters Hence, in the com- those which the tide ebbed and flowed. very naturally navigable mon law divided waters into and nonnavigable, the time the and made the ebb and flow of navigability. country, retaining the test of In this while still nonnavigable, navigable common-law classification of and changed rejected conditions, have, in its test we view of our adopted place navigability navigability, that of its adhering fact; and, as the crite- while still yet public private, have ex- rion whether waters are or we meaning as to declare all waters tended the to that term so public any highways com- which a channel for useful afford logs including merely merce, streams, for at small floatable year. of ‘navi- certain seasons of the Most of the definitions gability’ perhaps conceding cases, that the decided while important, and, in- the size of the boats or not vessels is necessary navigation deed, that it is not that should be yet convey all, boats the water at seem to the idea capable pecuniary value, must be of some commerce of distinguished boating pleasure. if, But from for mere present society, are used conditions bodies water for navigation, in its uses other than mere commercial ought ordinary why they sense, not to be we to see fail waters, waters, old no- held to be or if why Certainly, preferred. menclature we do not see boating sailing pleasure or should not be considered navigation, boating pecuniary profit. mere as well as Many, state, most, this if not the of the meandered lakes of any adapted probably to, be are not will never used they great navigation; for, extent but commercial population increases, cities are used—and as and towns and up vicinity, more built their will be still used— skating, people fowling, bathing, sailing, rowing, fishing, city pur- taking agricultural, domestic, even water for *11 poses, public purposes cutting ice, which cannot and other anticipated. over all To hand now be enumerated or even any private ownership, narrow old or these lakes to pub- great wrong upon navigability, the test would be a of
51 time, cannot, be lie all the extent perhaps, which for of now even . v. added.) .” anticipated Lamprey . (Emphasis State (Metcalf) (1893), 181, 1139, 52 Minn. 53 N.W. 1143. Lamprey concept
Since been expressed in has public followed and the of for navigability idea recreational spread use has According to numerous other jurisdictions. Stone, professor University to Albert a W. at the Law Montana and an acknowledged expert the field of Water Law, tendency there is a other adjudicated cases from jurisdictions to defining “navigability” abandon tool of simply and directing inquiry whether the water susceptible public concept, question use. Under this of title to the underlying streambed is irrelevant. A.W. Stone, Montana Law the 1980’s (1981). Thus, Water use, the issue becomes one of not title.
Navigability for is a governed by use matter It is state law. separate a concept from the question determining federal purposes. for title
“. . . The Propeller Genesee Propeller Gene [The Chief Fitzhugh, see v. (1851) (12 How.) 443, 53 U.S. 13 Chief Ogden Wheat.) L.Ed. 1058], Gibbons (9 [(1824) U.S. (10 Wall.) and the Daniel Ball 23], L.Ed. [(1870) 77 U.S. 557, 19 L.Ed. public established the basic test for wa 999] ters the purposes system. our federal But problems of problems federalism are not the same as the may entirely state; which arise within federal test land-title jurisdiction not federal does have to be test for state public determinations of the waters that are for various purposes.” Rights state Waters Water (Clark Ed.) 212-213, (1967). (Footnotes omitted.) pgs. Supreme The Wyoming supported public Court use of waters therefore or regard suitable without title navigability. The Court held:
“Irrespective of bed or ownership channel waters, has irrespective navigability, of their right usa- floating use waters of this State for ble craft and interfered with or cur- that use not be *12 public right any by of the It is also the tailed landowner. lawfully lawfully floating in State’s waters to the while so things any not which are hunt or do and all other or fish 1961), Armstrong (Wyo. Day v. otherwise made unlawful.” 137, 147. 362 P.2d public Wyoming recrea- essence, held that
In the court only by susceptibility of the tional use of waters was limited purpose. for that the waters provides: Montaría
The Constitution of atmospheric underground, waters surface, and “All flood property of the are the within the boundaries of the state appropria- subject people to and are state for the use of its provided by law.” tion for beneficial uses right use of the Thus, to control the Curran has no pub the exclusion of of the Dearborn to the surface waters part appropriation except prior lic to the extent of his purposes, irrigation here. is not at issue which the water for ownership right or surface to the riverbed Curran has no gov by ownership held the federal their was waters because people. Upon prior in trust for the ernment to statehood by State, burdened statehood, transferred to the title was public this trust. question waters owned essence, is whether the
In susceptible by rec Constitution are the State under the public. capability by wa of use of the reational use availability purposes their for recreational determines ters ownership by by public. Streambed for recreational use by private party are owned If the waters a is irrelevant. pri by people State, no for the State and held trust people. party the use of those waters vate bar per do not trust doctrine The Constitution and the right public’s party private with the to interfere mit a waters. the State’s use of the surface of recreational post regarding questions facto ex also raised Curran has rights clause, irrevocable laws, of the contract violation privileges. to the However, no title Curran has since from use of to exclude streambed or purposes, Dearborn recreational surface waters of the to this case. germane these matters are not Herrin on Montana case primarily Curran relies his support 241 P. Sutherland 74 Mont. of the Dearborn against the recreational use argument case, stated that the Court public. of the members Missouri, Creek, was not a tributary Fall was a tres- up the creek anyone who waded stream reasons: holding This for at least three passer. is irrelevant (1) stream, according at least nonnavigable Creek is a Fall (2) case; Curran, application has to this and therefore no dicta, precendential value and no holding purely has *13 contrary (3) to the may holding disregarded; be Constitution. public trust and the 1972 Montana doctrine that, trust doctrine sum, we under the hold Constitution, any surface waters and the 1972 Montana capable may by that use be so used are of recreational ownership navigabil or regard without to streambed ity purposes. for nonrecreational
IV. erred issue is whether the District Court next for inverse condemnation. dismissing Curran’s counterclaim was based condemnation The counterclaim for inverse upon ownership claim of the riverbed Curran’s irrel- However, bed is of title question Dearborn. use, and Curran evant to determination to the is no claim has claim to the waters. Since there no an therefore, no waters, and, grounds taking is no there Consequently, find that we inverse condemnation claim. the claim. dismissing err in District Court did not V. Coalition, the claims of The fifth issue is whether De Parks and the Fish, Department Wildlife have been dismissed partment of State Lands should 19, join failure indispensable parties under Rule M.R.Civ.P. note,
This issue appeal. was first raised Curran on We however, pertaining that Montana’s rule to this matter inis its relevant aspects substantially compara- the same as the ble federal rule and the federal courts have held that long “. . . litigation when seeks the public right, vindication of a persons third who adversely be affected a decision plaintiff favorable to thereby indispensable do not become parties.” Council, Natural Resources Inc. Berk- v. Defense (D.D.C. 1978), lund 458 F. Supp. (citing National (1940), 309, Licorice Co. NLRB U.S. 60 S. Ct. 799). L.Ed.
VI. The next issue raised is whether the Coalition had standing bring this matter.
We conclude question is immaterial since the Mon- Department Fish, tana Depart- Wildlife and Parks and ment of State parties Lands also this action.
VII. *14 The seventh issue is whether the District Court lacked subject jurisdiction. matter
Curran’s argument solely is based presumption on the that he holds title to the riverbed argues that a state has no power strip him guise of title to that land under the determining navigability of the waters over that riverbed.
We find this issue lacks merit on because it is based Cur- ran’s claim of previ- title which is nonexistent. As discussed ously detail, in greater the State holds title to the riverbed and the waters flowing question over it so there is no of the subject jurisdiction matter of the District Court.
VIII. adopted Montana has eighth The issue is whether log-floating navigability. test commercial The immaterial. This issue was raised Curran but not question navigability, here is use of one of recreational navigability. commercial
IX. navi The last issue is Dearborn River is whether the gable under the federal commercial use test. question determining
This issue is also immaterial of navigability purposes for recreational under Montana state law.
X. cautionary nothing We add the herein con note tained in this opinion granting shall be construed as public right upon private property to enter or cross over hereby to reach the State-owned waters held available purposes. recreational is, public’s limit to the to use these waters right circumstances,
normal mark of the waters. high water 70-16-201, MCA, provides private While Section own- mark, ership the “an- adjacent of the lands to the low water statute,” 87-2-305, MCA, public a gling recognizes Section water mark. right purposes high to access for to the fishing Kelly in Gibson v. Further, 39 P. 15 Mont. recognized public right fishing this Court to access for mark. navigational purposes point high of the water Therefore, use the we has a hold that mark ex- point high state-owned waters to the water waters, cept in case of barri- to the extent of barriers ers, around such barriers portage is allowed to pri- damage to the way possible, avoiding the least intrusive property rights. vate holder’s
XL summary, following: we hold the (1) in of application its That the District Court did not err question purposes the federal test but that the for title determining in underlying title of the bed is immaterial public recreational use of State-owned waters.
(2) in sum- granting the Court not err That District did of the Dearborn. mary navigability on the issue judgment (3) holding in That the Court was correct District for recrea- navigable is State-owned water of the Dearborn purposes. further that under the tional We hold Constitution, any surface trust doctrine and the Montana available capable purposes waters use for recreational purposes by public, irrespective for such of streambed ownership.
(4) in- dismissing That there no error in the claim was condemnation; taking therefore verse there no was is no claim. there basis for an inverse condemnation imma- question standing is (5) That Coalition’s terial to this matter.
(6) to dismiss failing That District Court did not err Coalition, Fish, Wild- Department the claims of the Parks, for fail- Department of State Lands life and and the parties litigation indispensable ure to name because when may be persons who public right, seeks vindication of a do plaintiff adversely by a decision favorable affected thereby indispensable parties. not become (7) ju- matter subject That the District Court did not lack risdiction this case.
(8) adopted log-floating That whether Montana has the Dearborn test of commercial or whether test use River is under the federal commercial to rec- public’s right is the immaterial because at issue here Montana according use is determined reational and this law. state
(9) waters public’s to use the State-owned right That high marks and is restricted to the area between the water may only private cross property portage order to around water; barriers the right portage must be accom- plished in the least intrusive possible. manner
(10) That the public do not have the to enter into or trespass private across property in order to enjoy the recre- *16 ational use of State-owned waters.
Affirmed.
MR. HARRISON, JUSTICES SHEA, MORRISON, SHEEHY and WEBER concur.
MR. JUSTICE GULBRANDSON, dissenting: I respectfully dissent.
The trial court and this Court have accepted the evidence presented by plaintiffs summary at a judgment hearing as conclusive on the issue and have summa- rily discarded the defendant’s evidence as worthless and inadmissible. view, my defendant’s evidence was sufficient to show
that a genuine existed, issue of material fact under the au- thority of United States v. Rio Grande Dam & Irr. Co. (1899), 690, 174 U.S. 19 S.Ct. Puget 43 L.Ed. Sound Light Power & v. Fed. Energy Reg. Comm’n 644 F.2d therefore, disposition of this case summary judgment improper. was The matter should be re- manded for by jury. trial
Assuming, arguendo, the Dearborn naviga- River was fact, ble in then the issues this case can be resolved application of existing necessity law. There was no for the hold, tried court affirm, and for this Court to that recrea- tional use and fishing make the navigable. Dearborn River
By adopting test, potential recreational use with state- application, wide where the issues before the court do not require adoption, its appears this Court acting legisla- be tively, judicially, instead of creating proce- be whereby dure valuable property rights are condemned and taken payment without compensation.