676 N.W.2d 823 (S.D. 2004), 22601, Parks v. Cooper

Docket Nº:22601.
Citation:676 N.W.2d 823, 2004 SD 27
Opinion Judge:[9] The opinion of the court was delivered by: Konenkamp, Justice
Party Name:Ordean PARKS, Austin Schiley, Patricia Schiley, Raymond L. Parks, Irl William Schiley, Harlo House, Inc. (whose principal owner is Harold Widvey), Charles Saylor, the Estate of Constance Saylor, Lorraine Stamps, Reuben Parks, and Vernon L. Parks Trust, Reuben Parks, Orion Parks, Otto Deuschle, Vernon L. Parks Trust, Orville Christopherson, Joe Matt
Attorney:[7]
Case Date:February 25, 2004
Court:Supreme Court of South Dakota
 
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Page 823

676 N.W.2d 823 (S.D. 2004)

2004 SD 27

Ordean PARKS, Austin Schiley, Patricia Schiley, Raymond L. Parks, Irl William Schiley, Harlo House, Inc. (whose principal owner is Harold Widvey), Charles Saylor, the Estate of Constance Saylor, Lorraine Stamps, Reuben Parks, and Vernon L. Parks Trust, Reuben Parks, Orion Parks, Otto Deuschle, Vernon L. Parks Trust, Orville Christopherson, Joe Matthews, Michael Matthews, Robert Dale, Greg Pesall, Randy Knutson, Mike Dale, Jerome Dale, Mike Egeland, John Amann, and Orlyn Evenson, Plaintiffs and Appellees,

v.

John COOPER, as Secretary of State of the South Dakota Game, Fish and Parks Department, Colby Hunsley, Chad Strand, Richard Waba, Lyle Johnson, and a class of individuals, similarly situated, who have or intend to use the bodies of water described in this Complaint without the permission of the owners of the property over which the waters lie, Defendants and Appellants.

No. 22601.

Supreme Court of South Dakota

February 25, 2004.

Argued March 25, 2003

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Jack Hieb of Richardson, Grosclose, Wyly, Wise & Sauck, Aberdeen, South Dakota, Attorneys for plaintiffs and appellees.

Lawrence E. Long, Attorney General, Diane Best and Charles D. McGuigan, Assistant Attorneys General, Pierre, South Dakota, Attorneys for defendants and appellants.

KONENKAMP, Justice.

[¶ 1.] The dispute in this appeal centers on three bodies of water located in Day and Clark counties in South Dakota, known as Long Lake, Parks Slough, and Schiley Slough. Because of unseasonably

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wet years, the water has accumulated into large lakes. They have attracted the interest of the public looking for sporting and recreational opportunities. Landowners with property interests in one or more of these three areas sought a declaratory judgment on their property rights and an injunction against the State and the public from using these lakes. In deciding in favor of the landowners, the circuit court held both the land and the water to be private property and enjoined public access. On appeal, the State raises multiple legal issues for our consideration, but ultimately, we conclude that all water in South Dakota belongs to the people in accord with the public trust doctrine and as declared by statute and precedent, and thus, although the lake beds are mostly privately owned, the water in the lakes is public and may be converted to public use, developed for public benefit, and appropriated, in accord with legislative direction and state regulation. Thus, we reverse and remand.

I.

[¶ 2.] Over the past several years, rainfall and snowmelt have flooded and enlarged all three areas into large bodies of water. On appeal, the question is whether the lakebeds of Long Lake, Parks Slough, and Schiley Slough and the water on the lakebeds can be declared separate properties, the land, private, and the water, public. All three areas in dispute were originally surveyed under the auspices of the federal government in the 1870s. The surveyors, commissioned by the United States Surveyor General's Office, were issued instructions on how to survey water bodies. The 1868 instructions, effective at the time the areas in dispute were surveyed, provided that if a body of water was: (a) 40 acres or less; or (b) shallow or likely in time to dry up or be greatly reduced by evaporation, drainage, or other causes, the surveyors should not draw meander lines around that body of water but should simply include the water body and its bed in their survey as part of the lands available for settlement.

[¶ 3.] In the trial of this case, Warren Fisk, a land surveyor and civil engineer, testified after reviewing the relevant survey notes. 1 He opined that the original surveys were properly conducted. 2 Furthermore, Fisk ascertained that the notes and maps from the surveys do not indicate the existence of any large bodies of water in these areas at the time of the surveys. Thus, not one of the bodies of water at issue in this case was meandered by the surveys. In fact, all of the land was made available for settlement with the exception of two sections of land that were patented to the State of South Dakota for use as School and Public Lands.

[¶ 4.] Over the years, the two School and Public Lands sections were sold to private individuals, except for an eighty acre parcel on Long Lake that was purchased by the South Dakota Department

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of Game, Fish and Parks (GF & P) at a public auction in 1963. The State also claims title to an abandoned rail bed running through Schiley Slough.

[¶ 5.] During the past 125 years, depending on weather patterns, these areas were either dry or marshy or covered with water at varying depths. Only recently has the land been continuously covered with deep water. For more than seventy years, the areas at issue have been consistently used to pasture cattle and raise crops. Many of the areas now several feet under water had large mature trees growing on them. In their current state, these bodies of water are capable of being used for fishing, hunting, trapping, and other recreational purposes.

Long Lake

[¶ 6.] The area known as Long Lake is located two miles east of Lily, South Dakota. 3 Directly north of Long Lake is a meandered body of water known as Horseshoe Lake. Due to the flooding of the 1990s, the water covering the land in Long Lake pushed so far north that it ran over the county road and into Horseshoe Lake. Currently, the two bodies of water are now connected by a culvert under the county road. The combined lakes have 2686 surface acres of water and a depth of fifteen feet.

[¶ 7.] From the time of settlement in the late 1800s and early 1900s, the Long Lake land could best be characterized as pasture and farmland, dotted by small sloughs holding seasonal moisture. Before the recent flooding, and within recorded history, the deepest water that covered any part of this area was approximately four to five feet in depth. 4 Typically, this water was located in the small sloughs on the property. The land currently covered by water in the Long Lake area was consistently used by its owners for farming, grazing, and haying, depending on the amount of moisture.

[¶ 8.] Historically, the Long Lake area has been suitable for trapping furbearing mammals, such as muskrat and mink, and some trapping has occurred there. In 1917 and the 1940s, waterfowl were hunted in the Long Lake area. Recently, Long Lake has been used by members of the public who have gained access from public rights of way for fishing, ice fishing, and snowmobiling.

[¶ 9.] The State's geomorphology expert, Dr. Jim Richardson, studied soil surveys, topographic mapping, aerial photography, and climatic data. He also conducted a field visit. At trial, Dr. Richardson interpreted the aerial photographic evidence. 5 It revealed that in 1939 there was no standing water in the area; however, the soil in parts of the area remained moist even in the late summer following a lengthy drought. Similarly, in 1979, a "normal" year for precipitation in that area, the aerial photographs showed that there was no standing water, other

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than the water in the dugouts constructed during the 1950s and 1960s to water livestock. Finally, the photographic evidence from 1991, another "normal" year for precipitation, illustrates that there was only one small area of standing water and it was less than waist deep.

[¶ 10.] Dr. Richardson further opined that strong wave action had previously occurred around Long and Horseshoe Lakes and formed a continuous beach or strandline around the combined water bodies. He noted that these strandlines existed well before the 1939 aerial photograph as numerous strandlines were visible in that photo. In fact, Dr. Richardson estimated that the largest strandlines were created approximately eight or nine thousand years ago. The State argues that the strandline is in approximately the same place as the perimeter of the lake in 1998. On the other hand, the landowners note that Dr. Richardson agreed that there has never been as much water covering the Long Lake area as there is now. All the evidence shows that Long Lake has never been as large as it was in the late 1990s and early 2000s.

Parks Slough

[¶ 11.] Until the late 1990s, the area known as Parks Slough was a series of small, unconnected hay sloughs. A "hay slough" or "hay marsh" is an area that normally floods with shallow water for a period of time during the spring. This temporary flooding allows for the growth of vegetation used for hay to feed cattle. In dry years, these "hay sloughs" can be the only sources of hay for cattle. The largest of the sloughs in the Parks Slough area was normally about sixty-six acres and the smallest was about fifteen acres. At the time of the trial, the area was covered by approximately 245 surface acres of water, with a maximum depth of thirty feet.

[¶ 12.] In 1923, Day County constructed Highway 25 around the Parks Slough area. 6 Since the 1930s, the Parks Slough area has been farmed, hayed, and grazed. In the 1950s and 1970s, the land was so dry that dugouts were constructed to water livestock. Currently, these dugouts are several feet under water. During the 1980s, much of the area qualified for enrollment in the Conservation Reserve Program. At that time, enrollment required that the land be used for crops for at least three of the previous five years between 1980 and 1985. The Parks Slough area met these criteria.

[¶ 13.] This area has supported wildlife. During the 1950s, 1960s, and 1970s, ducks were hunted there. In the early 1940s, early 1960s, and the mid-1970s, the Parks Slough area was used for trapping. In the mid-1990s, Ordean Parks introduced perch into this water body.

[¶ 14.] Recently, Parks Slough has...

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