181 N.W. 622 | N.D. | 1921
Lead Opinion
Statement. This is an action to determine adverse claims concerning land of a lake bod. The lauds involved abut upon Sweetwater lake in Ramsey county and were meandered by the United States Governmental survey in 1883. The bod of this lake in controversy is located in section 36, a school section and contains upwards of 400 acres. Exhibit A, attached, is a rough plat of a portion of the lake. It shows the lands of the parties adjacent to tho controverted lake bed, and also, roughly, a constructed fence, and the present shore lines of the North and South lake after recession of the waters. The plaintiff is the owner of lots 1 and 2 in section 36, comprising some 58 acres, upon title deraigned from the state of North Dakota; also, of lots 2, 3, 4 and 5 in section 31, adjoining, comprising about 56 acres, upon title deraigned from the United States. The defendant is the
United States; also, of lots 1, 2, a portion of lot 3, and the S.E. -J of S.E.-J in section 35, comprising about 118 acres, upon title deraigned from tbe United States. Tbe defendant is also tbe owner of 120 acres to tbe west of bis lands above described. Tbe plaintiff homesteaded
Sweetwater lake is a large lake’ some '6 or more miles in length and some 2 miles in width at some places. It is fed from waters that proceed from arms of the lake and from a coulee to the northeast. The size of the lake has gradually changed during the past thirty-five years. In 1883, there existed one entire, lake from'the north to the south over section 36, excepting an island -located towards the middle and the north of section 36. All the witnesses agree that this island, with timber and growing trees thereon, has always there existed since 1883. No witness testified that this island ever was inundated. Gradually, through the years, in the improvement and development of the country, a recession of the watei’S has occurred. The land in section 36, theretofore under water, became more and more- dry land. There continued, however, in this section channels through which the waters
One Lohnes, a veteran of the early days, having come up the Missouri as a soldier in 1867, testified he bought lots 1 and 2 in section 36 from the state and assigned his contract to the plaintiff; that at. one time he was the owner of the defendant’s land; that he and one Beigaard built this fence; that there was water along the entire length of it; that the water seemed to gradually dry up towards the fence; that he had also claimed the land west of the fence to bo a part of the defendant’s (then his) land; that he had an agreement with the plaintiff, when he made a bid concerning the school land later ®®ld to the plain
The plaintiff contends that the lake is non-navigable; that the adjacent riparian owners each take to the center of the lake in section 36 upon the method of determination stated in his pleading and as found by the trial court. That the existence of the island may be disregarded for the reason that it was not shown in the governmental survey and that such survey cannot be collaterally attacked.
Decision. — It is essential to first determine whether the waters of the lake involved are to be deemed public or private waters. This is for determination, by this state in accordance with its policy and law. Brignall v. Hannah, 34 N. D. 174, 184, 157 N. W. 1042; St. Anthony Falls Water Power Co. v. St. Paul Waters Comrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. 157; 1 Lewis, Em. Dom. 3d ed. § 92; Lamprey v. State, 52 Minn. 181, 18 L.R.A. 670, 38 Am. St. Rep. 541,
It may not be doubted that'in this state such test is a test of navigability in fact borrowed from both civil-law and common-law principles in contradistinction to the so-termed “tidal test” of the common law. See 1 Farnham, Waters, § 23; 1 Lewis, Em. Dom. 3d ed. § 91; Bissell v. Olson, 26 N. D. 60, 66, 143 N. W. 340; Justinian Inst. bk. 2, title 1. Ware, Roman Water Law, §§ 41, 74, 76; Palmer v. Mulligan, 3 Caines, 307, 2 Am. Dec. 270. There are no tidal waters within this state. Assuredly, therefore, if any public waters there are they must so exist upon sirch test or pursuant to direct declaration of the law. In the Constitution of this state it is stated. “All flowing streams and natural watercourses shall forever remain the property of the state for mining, irrigation, and manufacturing purposes.” N. D. Const. § 210. This is a declaration concerning public waters. See Bigelow v. Draper, 6 N. D. 152, 162, 163, 69 N. W. 570. The statutes have given recognition to this constitutional policy. Section 5352, Comp. Laws 1913, prescribes “except when the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on a navigable lake or stream, takes to the edge of the lake or stream at low-water mark, and all navigable rivers shall remain and be deemed public highways.” Section 5475, Comp. Laws 1913, provides: “Islands accumulations of land formed in the beds of streams which arc navigable, belong to the state, if there is no title or prescription to the contrary.” These disclose aflirmatively a declaration of ownership in the beds of navigable waters. In the instant case there are two prime questions involved: The character of the waters and the ownership of the bed involved. In this case, the contest is not between a riparian owner and one seeking to assert the right of navigation as a public right upon the lake or to establish an asserted use as a public use for which the lake waters show a capacity therefor. The question here involved is presented between parties both seeking to exclude any public use or public right in the open waters or the lake bed of the section involved, and to fix the status thereof as wholly private. In this regard, in this state, a lake is differentiated from a watercourse only in that it is simply an enlarged watercourse wherein the waters may flow or a basin wherein the waters are quiescent.
The proof of the status is rather a proof of capacity than one of then existent usé. If the waters involved are capable of a proper public use in the environment where situated and to which they are or may be made subservient, it is sufficient. See Bissell v. Olson, 26 N. D. 60, 67, 143 N. W. 340; Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209; 1 Farnham, Waters, § 26; 1 Lewis, Em. Dom. 3d cd. § 91. It is therefore apparent that, pursuant, to constitutional and statutory provisions and state policy, the title of the bed of the lake involved, if deemed public waters, was and is in the state of North Dakota, whether considered in its jus publicum or jus privatum. Were and are the waters of Sweetwater lake to be deemed public waters? In 1883, it was a large lake; it is now a large lake; it has a vast expanse of water extending many miles to the north and south and extensive in width. ■ It is not a pond nor a marsh; it has both clear and apparently deep water extending for miles; it has been used for Iranting and for boating by the public. There is no showing in the
In 1883 the land of the parties and the bed of the .lake were then the property of the United States. Then the land adjacent to the lake was surveyed by our Federal government. The surveyors meandered the surveyed land describing its course and amounts, pursuant to Federal methods of survey, along this lake. The lake was then navigable. By inadvertence, apparently, the surveyors did not note the island then existing. It then was timbered. It must have been of considerable extent. Upon plaintiff’s maps submitted it comprises many acres. "When this state was admitted into the Union, the title' and ownership to all of section 36, both that of the island and of the bed of the lake, passed to the state, both as school land and by reason of state sovereignty. Enabling Act, § 10. See Donnelly v. United States, 228 U. S. 243, 262, 57 L. ed. 820, 828, 33 Sup. Ct. Rep. 449, Ann. Cas. 1913E, 710. The plaintiff’s rights as riparian owner are based upon his title received from the state to lots 1 and 2 in section 36. The defendant’s rights are likewise so based, concerning lots 3 and 4 in block 36; otherwise, as to the remaining riparian land, upon title received from the Federal government. The grant made by the state to the parties did not convey to them the island nor any part of the bed of the lake. The state expressly reserved its rights under the Constitutional laws of this state. The parties secured such rights as they were entitled to have as riparian owners upon pirblic waters: The patent from the Federal government-to ’the defendant likewise conveyed no' title to the island nor to the bod of such navigable waters.
It is ordered that the judgment be reversed, and a new trial granted, and that the Attorney General of this state be notified so that the state may become a party or otherwise protect its interests as it may desire or deem expedient.
Concurrence Opinion
(concurring specially). I agree with what is said in the opinion prepared by Mr. Justice Bronson to the effect that the “test of navigability” is capacity of use for navigation rather than actual use for such purpose. (Of course, where the surrounding country is settled, the fact that a body of water has not been so used may be a circumstance to be considered with other evidence to determine
Erom the evidence submitted in this ease, I am rather inclined to the belief that tbe lake in question is a navigable one. However, in view of a new trial, I believe that that question should be left open so that the parties might introduce such additional evidence bearing on this question as they might desire to offer. I also agree that the evidence adduced discloses a condition of facts with reference to the island which makes it necessary that the state be made a party to the litigation; but I am not prepared to say that tbe island unquestionably belongs to the state. The question of its ownership should he determined only after the contending parties (as well as the state) have had an opportunity to introduce evidence and present arguments bearing on. this question.