Anderson v. Ray
| Decision Date | 04 March 1916 |
| Docket Number | 3770. |
| Citation | 156 N.W. 591,37 S.D. 17 |
| Parties | ANDERSON et al. v. RAY et al. [*] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brule County; Frank B. Smith, Judge.
Action by O. E. Anderson and others against Fred Ray and others. From a judgment for defendants, and an order denying new trial, plaintiffs appeal. Affirmed.
Brown & Brown, of Chamberlain, for appellants.
C. C Caldwell, Atty. Gen., Byron S. Payne, Asst. Atty. Gen., and E. R. Slifer, State's Atty., of Chamberlain, for respondents.
Chapter 18, Laws of 1913, undertakes to empower the board of county commissioners, in counties where there may be meandered lakes, to construct artesian wells for the purpose of maintaining a sufficient quantity of water in such lakes to make them available for "rowing, fishing, fowling bathing, or other purposes"; and, in the spring of 1913 the defendants, acting as the county auditor and board of county commissioners of Brule county, were about to cause the construction of four artesian wells in that county for the purpose of filling and maintaining a sufficient stage of water in what is known as Red Lake to make it available for the purposes specified in said statute.
Red Lake is a meandered body of water with an area of approximately 3,700 acres, and plaintiffs are the owners of land bordering thereon. They allege that, except during seasons of unusual rain or snowfall, the bed of said lake is dry land, and that, because of their riparian ownership, they are the absolute owners in fee of all that part of said lake bed, from its edge to the center of said lake bed, lying opposite to their lands. During many years in the past they have used considerable tracts of said lake bed as a place for making hay and pasturing stock, and they now seek, by injunction, to prevent the filling of said lake by artificial means.
The depth of the water in said lake, and in fact whether it contains any water at all or not, depends almost entirely upon the seasons. There are several streams (one of which is known as Nelson's creek and is 25 to 30 miles long) which empty into the lake, but there is no uniformity in the volume of water they contain; and, during much, if not the greater portion, of each year, they do not discharge any water at all into the lake. During seasons of an unusual amount of rain or following an unusual fall of snow, the lake fills with water to a depth of from two to four, or more, feet over its entire bed; but, during a succession of dry seasons, the water gradually dries up and recedes from its shore line until it is in only a few of the lower portions of the lake bed that any water remains. There is some evidence tending to show-and the court found as a fact-that the lake has an outlet. This finding is assailed by the plaintiff on the ground that it is not supported by the evidence, and the evidence on this point is not very satisfactory. If the lake has an outlet, it is through an underground channel that is by no means definitely located. But it is a significant fact that, no matter how great the volume of water that flows into the lake, it never rises above a certain level, and, except at one place designated by one of the witnesses, has never been known to rise above, or extend beyond, the meander line. The question of the outlet is not of much materiality, except that it negatives any assumption or probability that the water will, in the future, rise above or extend beyond the natural high-water mark or submerge any of the land to which plaintiffs' title is unqualified.
The size and depth of the lake and the purposes for which it has been used during times of ordinary high water in the past show clearly that, if the water is maintained at ordinary high-water mark, it will be susceptible of all the uses named in said chapter 18, Laws of 1913. This places it in the class designated in Flisrand v. Madson, 35 S.D. 467, 152 N.W. 796, as "navigable lakes." Such lakes are "public waters" and belong to the state for the benefit of all the people. Such bodies of water are of value to the public as mere places of recreation, and ought to be preserved by the state for such purposes, if for no other.
After a consideration of the record before us, we are of the opinion that much of what is said in the Flisrand Case applies to the facts in this case. Plaintiffs are claiming the land in question as relicted land, and rely largely upon what is said in Olson v. Huntamer, 6 S. D. 364, 61 N.W. 479, in support of such claim; but that case is not analogous to this, and what is said in that case is not controlling in this. That case was tried and determined upon the theory that a reliction, in fact and in law, had occurred. It was a contest between two individuals for a portion of a lake bed from which the water was assumed to have permanently receded.
In this case no reliction is shown. During a series of dry seasons, the water gradually recedes from the shore line until the greater part of the entire lake bed becomes dry. This condition has existed at different times within the past 35 years, but this is not a permanent condition. There has been no permanent diminution in the quantity of water that flows into the lake, and it is recognized by all parties that a rainy season or an unusually heavy fall of snow will fill it again. The testimony shows that, at the time of the trial, in July, 1913, practically the entire bed of the lake was dry, but it was conceded by counsel for plaintiffs, at the argument in this court, that it had since filled and was full of water at that time. This condition does not show a reliction. In the Flisrand Case (speaking of what constitutes a reliction in law) this court said:
In fact the term reliction, as it is defined by courts and text-writers, implies an element of permanency of change in conditions that is not shown to exist, nor even suggested, by the facts in this case.
The trial court made the following conclusion of law:
"That the title to all the relicted lands within the meander line of said Red Lake district is in the state of South Dakota, subject to the disposal of proper legislation."
Plaintiffs vigorously contend that this conclusion of law is erroneous. So far as the rights of plaintiffs are concerned, it is not prejudicial, but it is inaccurate and, to some extent, it is misleading. It implies that the state took title by reliction. This is wrong: First, because, as we have already seen, no reliction has ever taken place; and, second, the effect of a reliction, where a reliction has in fact taken place, is to divest the state of its title and to vest the same in the riparian owner. Olson v. Huntamer, supra. Tested by the rule announced in the Flisrand Case and the cases therein cited, the state is the owner of the bed of Red Lake subject, of course, to the limitation named in that case. Section 192, Civ. Code. In considering the question of ownership of the lake bed, in the Flisrand Case, it is said:
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