161 P. 854 | Idaho | 1916
Lead Opinion
This appeal involves two actions brought by the appellant, the Northern Pacific Bailway Company (which will, for convenience, hereafter be called the railway company), one against D. C. Hirzel and wife, and the other against Casper Neukam. The action against Hirzel is to quiet title against Hirzel and wife to land between the banks of Snake river and the center of the main stream, including an unsurveyed island occupied by respondent Hirzel at the confluence of the Clearwater and Snake rivers at the city of Lewis-ton, and may for convenience be referred to as the Snake river case. The suit against Neukam is to quiet title to land between the bank of Clearwater river and the center of the stream at the foot and west of Fifth street and north of Block 6 and from A street north of said block in said city of Lewiston, and may be referred to as the Clearwater case.
John B. Morris, as mayor-trustee of the city of Lewiston, filed a complaint in intervention in each case, whereby he claimed for the city, as mayor-trustee, the land claimed by the plaintiff and prayed that title be quieted in him as trustee for the city. Hirzel filed his answer and Neukam defaulted, and thereafter made a motion to open the default, which was de
Upon the issues made, judgment and decree in each case was entered in favor of the mayor-trustee and the title to’ the land involved quieted in him.
The plaintiff, the railway company, appealed from the judgment entered in both of said cases. Neither of the defendants, Hirzel or Neukam, appealed, and the controversy in this court is now between the railway company and the mayor-trustee alone.
It appears that the railway company claims the title of the state as well as title under the patents from the United States and by vacation of streets from the city; the mayor-trustee in both cases claims title by virtue of a town-site patent, by adverse possession, by deed, by relinquishments, by grant from the state and perhaps through some other sources.
Numerous errors are assigned, a number of which involve the sufficiency of the evidence to support the findings of the court, and some involve questions of law wherein it is claimed the court erred in the trial of the case, and a reversal of the judgment is demanded.
In order that the issues involved in the two cases under consideration may be more readily understood, a brief history of the city of Lewiston and of the title to the land involved will here be given.
The land upon which the city is situated is at the junction of the Clearwater and Snake rivers, Snake river being on the westerly side of the city and the Clearwater on the northerly side thereof. There was some settlement made there as early as 1861. When first settled, it was a part of the territory of Washington and the city of Lewiston was incorporated as a city by a legislative act of that territory early in 1863. (See Laws Wash. 1863, p. 431.) In that act the western boundary of the city was fixed as the middle channel of the Snake river and the northern boundary was the middle channel of Clearwater river. Idaho was organized as a territory on March 3d, 1863, and in 1907, by legislative act, the Lewiston
Patent from the government was not issued to Newell until nearly twelve years after the Indians had executed said instrument in writing to Newell and nearly ten years after said treaty was entered into.
The survey of the Newell grant was made prior to the survey by the government of the other lands involved in this case, and at the time the Newell grant was surveyed the government had not run the meander line of Snake river. It appears that the government ran said meander line September 26,1870, and that on September 3, 1873, the government made a survey of the legal subdivisions now included in said city, and on June 1, 1874, such government survey was approved.
In August, 1874, E. B. True made a survey and plat of the Lewiston town site, and on April 10, 1875, patent for the Lewiston town site was issued by the government to the mayor-
The land bordering on the Clearwater, squatted on by defendant Neukam, is entirely submerged during high water, except perhaps that portion on which buildings are situated, and they are in what was platted by True as A street of said city.
However, since judgment and decree was entered against Hirzel and Neukam and they have not appealed, their rights are not involved in this controversy between the appellant and the mayor-trustee.
We herewith insert a copy of a portion of the official plat of True’s survey of said town site showing the land in controversy :
MAP OF PART OF FRACTIONAL TOWNSHIP 36 NORTH OF RANGE 6 WEST, BOISE MERIDIAN.
SCALE: 1"=40 CHAINS.
A part of the town site of Lewiston is located on said see. 36. Surveyor True surveyed and platted only a part of the land patented to the mayor-trustee, and the patent includes 561.31 acres for which the mayor-trustee paid $701,511/4, that being at the rate of $1.25 per acre. The said Newell grant of 5.05 acres is in Lot 2 of said section, as shown by the government survey. Said lot contains 43.90 acres including said Newell grant. Deducting the 5.05 acres included in the Newell grant from the 43.90 acres contained in said lot, leaves 38.85 acres in said lot, for which the said mayor-trustee paid at the rate of $1.25 per acre. It will be observed from the government plat that said Snake river borders on the westerly side of said Lot 2, and the Clearwater river borders it on the north. While there is some contention as to whether the Newell grant bor
“To determine the course of the east boundary of the tract, I ran a temporary line north from the place of beginning 250 yards and commenced at the right bank of Snake river due west of this point and measured east 100 yards and set up an object.....The bank being nearly perpendicular I set a witness corner three feet east of the line corner..... S. iy% degrees "W. from true corner along the right bank of Snake river upstream.....Being 40.70 yards — set the S. W: corner on bank of Snake river.”
It appears from the field-notes and plats introduced in evidence that it was intended that the Newell grant should border on Snake river, and it did border on said river. Plaintiff’s exhibit N, above inserted, .shows that Lots 1 and 2 on the north border on Clearwater river. However that may be, it cannot change the main question here presented for determination and as we understand the case, both parties desire to have the question settled — that is, whether the city or the railway company has the title to the bed of said streams bordering on the city of Lewiston below high-water mark, from the bank to the center of said streams.
Counsel for respondents lays considerable stress upon the survey and plat made by one Guilland, which plat shows the meander line of Snake river considerably west of the west boundary of the Newell grant. This plat was not put in evidence. According to Guilland’s testimony and his plat, the government meander line extended out into Snake river. He claimed there was some mistake in the government survey, and that in order to correct it, under the rules established by the Interior Department, it threw the greater part of the meander line out into Snake river. His testimony is so at variance with the government plat it should not be given much weight, since
This court held in Callahan v. Price, 26 Ida. 745, 146 Pac. 732, that a patent from the United States for land bordering on a navigable lake or stream extended no farther than the natural high-water line, and at page 754 of said opinion the court said:
“It is therefore, we think, the settled law of this state, that no title to islands, lakes or the bed of navigable streams passes to the patentees of the United States by the sale of border lots, and that the state holds the title to the beds of navigable lakes and streams below the natural high-water mark for the use and benefit of the whole people, and that the right, title or interest of riparian proprietors or owners of uplands, to such shores are determined by the laws of the state, subject only to the rights vested by the constitution of the United States. ’ ’
In that case the court expressly overruled Johnson v. Hurst, 10 Ida. 308, 77 Pac. 784; Lattig v. Scott, 17 Ida. 506, 107 Pac. 47; Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240, and Ulbright v. Baslington, 20 Ida. 539, 119 Pac. 292, 294, in so far as said cases conflict with the doctrine laid down in the Callahan-Price case.
Counsel for the respective parties have filed exhaustive briefs in which are reviewed many of the cases pro and con upon the question here involved. It is contended by counsel for appellant that by the provisions of sec. 18 of our Revised Codes, this state adopted the common-law doctrine of England, to the effect that the ownership in fresh-water streams, or the beds thereof, extends to the thread of the stream. Said section is as follows:
‘ ‘ The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these Revised Codes, is the rule of decision in all courts of this state. ’ ’ '
By the adoption of that section this state did not adopt the common law of England when such common law was inapplicable to the conditions of the state. The territory and state of Idaho following the lead of other states having similar statu
Only such portions of the common law of England as were applicable to the conditions of this country have been adopted by the several states of this country. (Boyer v. Sweet, 4 Ill. 119; Stuart v. People, 4 Ill. 395 (404); Poultney v. Ross, 1 Dallas, 237 (238), 1 L. ed. 117; Seeley v. Peters, 10 Ill. 130, (150).)
It was stated by the court in Shewel v. Fell, 3 Yeates (Pa.), 17, that it was the province of the courts to judge in what cases the rules of the common law should be relaxed, owing to the difference in the conditions existing in this country; and in People v. Canal Appraisers, 33 N. Y. 461 (482), the court said: “I think no doctrine better settled than that such portions of the law of England as are not adapted to our condition, form no part of the law of this state. This exception includes not only such laws as are inconsistent with the spirit of our institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own.”
“The common law of England,” said Judge Story, “is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their position.” (Van Ness v. Pacard, 27 U. S. (2 Pet.) 137, 7 L. ed. 374.)
From the decisions it will be observed that those states which have no navigable waters other than those where the tide flows or whose rivers are small and their effectual navigability is limited, or nearly so, to the tidal waters, have held more nearly to the usual .common-law test, and have applied the consequences as inferred at common law; while those states which have less relation to the salt waters or whose rivers are large and depend less upon tidal waters for their navigability in fact have been inclined to depart from the common-law rule.
The court in McManus v. Carmichael, supra, very pertinently asks the question whether the rules and tests which are applicable enough to the rivulets of England shall be taken to measure those waters whose flow is through the climates and zones of the earth, and navigable, in fact, hundreds and in some cases thousands of miles above the flow of the tide.
We therefore hold that the beds of the Snake and Clear-water rivers, they being navigable rivers, belong to the state and are held for the benefit of the public. The state holds the title for the benefit of the public, and is not limited in its right or title to the easement or right of way over such beds. As held in Bowman’s Devisees and Burnley v. Wathen, 2 McLean
Some question is raised as to whether the beds of the navigable streams of the state come within the terms “public lands” or “public domain.” Those terms are used in the United States statutes and decisions to designate such lands as are subject to sale or other disposal under the general laws of the United States or states, and are not held back or reserved for any special or governmental purpose. (32 Cye. 775.)
In Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769, the court said: “The words ‘public lands’ are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.” (Leavenworth R. R. Co. v. United States, 92 U. S. 760, 23 L. ed. 634; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228, 31 L. ed. 844; Mann v. Tacoma Land Co., 153 U. S. 273, 14 Sup. Ct. 820, 38 L. ed. 714, Barber Lumber Co. v. Gifford, 25 Ida. 654, 139 Pac. 557; Moss & Bro. v. Ramey, 25 Ida. 1, 136 Pac. 608.)
It will not be seriously contended that the lands below high-water mark of the navigable streams of the state are subject to sale or disposal under any existing general laws of the state as “public lands,” regardless of the fact that this court in its early decisions endeavored to establish a law, which was clearly a legislative act and not judicial.
In Barber Lumber Co. v. Gifford, 25 Ida. 654, 139 Pac. 557, this court held: “We have no statute law whatever granting a riparian owner the bed of the stream.” (Moss v. Ramey, 25 Ida. 1, 136 Pac. 608.)
In Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. ed. 331, it was held that grants by the United States under the public land laws, of lands bordering on or bounded by navigable waters, do not convey of their own force any title or right below high-water mark.
“Public lands,” such as are referred to in art. 9 of the state constitution, and which are subject to disposal by the state land board under the laws enacted or to be enacted by the legislature, do not include the beds of navigable waters or lands thereunder below high-water mark. The rights of the
In the Emma S. Peterson Case, 39 Land Dee., p. 566, it is said: “Upon the admission of a state into the Union it acquires absolute property in and dominion and sovereignty over all soils under the navigable waters within its borders.” (See decisions of the Supreme Court of the United States cited in the above case.)
Upon the admission of Idaho into the Union, it acquired absolute property in, and dominion and sovereignty over, the beds of the navigable waters, and it is the duty of the legislature to enact proper laws for the management and control of the beds of such waters. But the state should retain the title for the benefit of the general public and enact proper legislation for the control of such lands for the benefit of all the people.
We will next consider the source and extent of the trustee’s title to the waterfront bordering on said rivers.
Wherever the municipality is a riparian owner on this waterfront, it would take title, under the late decisions of this court, to high-water mark. However, the city and mayor-trustee
Under our view of the case, these several legislative acts make no difference, so far as the real question involved in the case is concerned, since we hold that the title to the beds of said navigable rivers is in the state to be held and controlled by the state for the benefit of the public and for public use.
The title being in the appellant railroad company to the Newell tract bordering on the Snake and to said block 2 bordering on the Snake and Clearwater rivers, the railroad company has the right of access to said rivers, and such right precludes any unreasonable obstruction of its access to the navigable waters, and precludes any title of a private or proprietary nature between it and the center of said streams. The appellant company has the legal title to the Newell tract and said block 2, and is the riparian owner wherever those tracts touch the banks of said rivers. Appellant has the right of a riparian owner as well as the right of other citizens of access to and egress from said navigable waters, subject to the right and easement of other citizens of the state to a navigation of said Waters.
The title to the beds of said streams, referred to- as the waterfront, is still in the state of Idaho, and therefore the judgment and decree of the district court quieting the title to the beds of said streams to the center thereof in the mayor-trustee for the benefit of the inhabitants of the city of Lewiston must be reversed and the cause remanded to the court, with directions to make new findings of fact and enter judgment and decree in accordance with the views expressed in this opinion since the parties are not entitled to a decree quieting the title to the beds of said streams in them or either of them.
Costs are awarded to appellant.
Rehearing
ON PETITIONS FOR REHEARING.
Both the Northern Pacific Railway Company and the city of Lewiston have filed petitions for rehearing in this case.
It would appear that the court in its former opinion apparently left a few points a little obscure. However, we do not think it necessary to grant a rehearing in this matter.
(1) Counsel for the Northern Pacific Railway Company first contends that in so far as the case against Hirzel is concerned, it might be urged before the trial court in making other findings, as required by the former opinion of this court, that there was an intention to hold that said island contained land that might be subject to entry under the land laws of the United States. ■ It was not intended to so hold. The opinion of the court was that the island claimant not having appealed, the findings of the court below to the effect that the island contained no land proper, nor anything other than river-bed material, will be accepted and found in any new findings that may be hereafter made by the trial court.
(2) Under the provisions of Ordinance 218, which ordinance’ vacated A street for the use of the railway company, its successors and assigns, the railroad company is granted an easement and not a mere license, which easement is not revocable so long as the railway company, or its assigns, occupy said
(3) The court intended to hold, and holds, that the westerly side of the Newell grant and block 2 of the town site of Lewis-ton is bordered by Snake river.
(4) In regard to riparian rights along the Clearwater river. As we understand the evidence and the plat of the city of Lewiston made by E'. B. True, quite a portion of said street opposite block 6 has been washed away by the Clearwater river, and Neukam has squatted on or near a part of that street, but that he has no rights there as against the Northern Pacific Railway Company. The railway company occupies the entire width of that street west from Fifth street. It appears that all of block 1 was washed away some years ago, although title to it is still claimed by a corporation not a party to this suit. The Northern Pacific Railway Company accordingly has riparian rights along said river up to the easterly end of said block 1.
When the Northern Pacific company came to Lewiston, it was granted the use of A street. That grant fixed the limit of the right of way to the entire width of said A street, to wit, eighty feet. Therefore, the appellant has the use of A street on the Clearwater river so long as it occupies said street for railway purposes, and that carries with it the right of access from said street from its intersection with Fifth street to the. easterly end of Block 1, to the navigable water and a freedom thereof from any intervening private right.
(5) The court did not intend to hold in said opinion that there had been no general legislation in this state in regard to railways along the shores of navigable waterways, and the court did not intend to deny the effect of subd. 5 of see. 2796, Rev. Codes, and where the court stated, “and no general law has been made by the legislature in regard to the disposition or proper control of such lands for the benefit of the public,” we should have added, “except subd. 5 of see. 2796, Rev. Codes.” This exception should also include sec. 872, Rev. Codes, which section prohibits the construction of dams or booms unless they are constructed as provided by sec. 872, supra.
A street lies bordering on and north of said block 6 and the northerly side of said street borders on Clearwater river. The city of Lewiston having granted an easement of said entire street to the railway company, the railway company has the riparian rights which attach to the northerly side of said street which borders on said river, the intention being to hold that the Northern Pacific Railway Company has riparian rights on Clearwater river from Fifth street westerly to the easterly end of said block 1.
(7) It was contended by counsel for respondent that the legislative assembly of the territory of Idaho in 1881 amended the city charter of Lewiston (Sess. L. 1881, p. 384), whereby the power was conferred upon the city to sell or lease the property of the city; also to lease the waterfront to any person, steamboat or railroad company, for the purpose of erecting warehouses, wharves or wharf boats, or for any other purpose which they might deem proper, and that said act has never been repealed and is still in force.
It appears that in 1907 (Sess. L. 1907, p. 349) said act of 1881 was amended. By that act all of the provisions of the Lewiston charter and the provisions of said act of 188.1, authorizing the sale or lease of waterfronts in said city, are entirely omitted. The regulation of wharfage is retained in sec. 66 of said act of 1907, but said act does not give the city power to sell or lease the waterfront, and only gives such city the power of sale and lease of the real property of the city and streets and highways and property dedicated to any specific public use. While a river is a highway, the term “highway,” as used in said act, does not include a water-way. (Grice v. Clearwater Timber Co., 20 Ida. 70, 117 Pac. 112.) The waterfront on those rivers was not properly dedicated to any specific public use by the city, and as the title to the beds of all navigable streams is in the state, the city would not have the right to dedicate it to any particular public' use that would
With the foregoing additions, the original opinion is affirmed and a rehearing denied.
It is contended by counsel for respondent that under all of the facts of this case, each party should pay its own costs on appeal. Upon a reconsideration of this matter, the court has concluded that it will be only right and proper for each party to pay its own costs on this appeal, and it is so ordered.