Anderson v. Reames

• Decision Date: 04 May 1942
• Docket Number: 4-6704
• Citation: 161 S.W.2d 957,204 Ark. 216
• Parties: ANDERSON v. REAMES
• Court: Arkansas Supreme Court

161 S.W.2d 957

204 Ark. 216

ANDERSON v. REAMES

4-6704

Supreme Court of Arkansas

May 4, 1942

Appeal from Union Chancery Court, Second Division; Gus W. Jones Chancellor on exchange; affirmed.

Decree affirmed on direct and cross-appeal.

Mahony & Yocum, for appellant.

Surrey E. Gilliam, for appellee.

HOLT J. GRIFFIN SMITH, C. J., dissents in part and concurs in part. MCHANEY, J., dissents.

OPINION

HOLT, J.

Appropriate proceedings were instituted in the Union chancery court by appellees, J. B. Reames and H. O. Reames, styled "Operating Plaintiffs," and a large number of other parties styled "Public Plaintiffs," to restrain appellants and other defendants from enclosing the shore, or dock site, and from interfering with the rights of appellees in the use and occupancy as a camp site, of a strip of land approximately 200 feet wide, along the west shore of Grand Mere Lake in Union county, Arkansas.

The principal issue presented on the trial below, and here on appeal, relates to riparian rights on Grand Mere Lake and more particularly to the right to maintain and operate a commercial boat dock on the water and shore of this lake. Upon a trial the court found and decreed in effect, that the "Operating Plaintiffs" (appellees here) were without right to use the shore of the property controlled by appellants under a lease, but decreed that appellees had the right to maintain and operate their equipment on the water of the lake and refused to order its removal from its position in front of the shore line of appellant's property. This appeal followed. Appellees have cross-appealed.

The record reflects that appellees, since 1938, have operated a commercial fishing camp on Grand Mere Lake, which is conceded to be a navigable body of water and part of the Ouachita river. This camp was located on and in front of a strip of land approximately 200 feet wide on the shore of the lake. The Crossett Lumber Company owns practically all of the land bordering on this lake, including the strip of land in question here. Appellants have the use and control of this property to high-water mark under a lease from the Crossett Lumber Company.

In the operation of their commercial fishing camp, appellees maintained a minnow dock, or raft, on the surface of the lake directly in front of appellants' property and forty-eight feet from the water's edge. This minnow dock is 21 x 24 feet. Fifty-one feet from the water's edge and within a few feet of the minnow dock, appellees have a houseboat 40 x 60 feet, which they use as a home. Both the raft and the houseboat are anchored to posts in the bed of the lake. In addition, appellees owned a large number of small boats which they rented to fishing parties. They also had constructed plank walkways from the houseboat and minnow dock to the shore and maintained a refreshment booth on the shore about forty-seven feet from the water's edge. Appellees kept their small boats, which they rented to the public, beached at the water's edge in front of their houseboat and minnow dock, and on the 200-foot strip of land in question. Appellants erected a fence along the shore line in an attempt to prevent its use by appellees in the manner above stated.

The trial court in its decree held that Grand Mere Lake is a navigable body of water; that appellants, as lessees of the Crossett Lumber Company, control the land bordering on the lake to the high-water mark and that there was so little variation between the high and the low-water mark that they are practically the same, it appearing that the water level of the lake is largely controlled by a lock or dam. The decree also directed appellants to remove their fence, and directed appellees to remove their refreshment booth from the shore, to remove all rental boats from the shore and to remove the platform, or boardwalks, leading from the minnow dock and the houseboat to the shore. By the decree, however, appellees were permitted to retain their houseboat and minnow dock in their present position.

We quote from the decree as follows: "The plaintiffs and cross-defendants, J. B. Reames and H. O. Reames, have the right to maintain a commercial fishing dock upon the surface of the lake, but they and their agents, servants and employees should be enjoined and restrained from using, directly or indirectly, any part of the leased premises in the conduct of their business and from inviting the public to make use of the same; . . .

"J. B. Reames and H. O. Reames, their agents and employees, are perpetually enjoined from occupying or using the leased premises, or any part thereof, and from conducting any business thereon pertaining to the operation of the boat dock aforesaid; . . . from using the leased premises in the operation of their said business, and from directly or indirectly inviting the public or members thereof to go upon the leased premises; from going upon the leased premises in passing to or from their boats or other equipment upon the water; from parking any vehicle or inviting the public or members thereof to park automobiles or other vehicles upon the leased premises, and from going upon the leased premises for any purpose whatsoever; from . . . receiving or discharging passengers or customers from or on the shore of the leased premises. . . ."

Appellants were also awarded a small judgment against appellees for damages covering the use of the shore to date of decree.

The contention of the parties is stated by appellants in this language: "We have heretofore stated the contention of the appellees, J. B. Reames and H. O. Reames, to be that by reason of the fact that this lake is navigable water, they, as members of the public, have the right to maintain and operate the commercial boat dock and, in so doing, to the exclusive use of the water occupied by them and immediately fronting and paralleling the shore, and to use the shore in the conduct of their business.

"The appellants contend that the right to maintain and operate the dock is a right belonging or pertaining to the bank and incident to the ownership of the soil above high-water mark, and is therefore a riparian right of Crossett Lumber Company granted by said company to appellant, J. R. Withers, and by him sub-let to appellant, H. L. Anderson, and that the Reameses are squatters without any right or authority to use the water or shore for a commercial boat dock and that they should be enjoined from so using the same and directed to remove their equipment from the water fronting the leased premises."

The parties here concede that Grand Mere Lake is a navigable body of water. There is no dispute that appellants, as riparian owners or lessees, would have the use and control of their land to the high-water mark. The test in determining high-water mark is announced by this court in the case of State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014. There it is said: "In St. L., I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8 L. R. A. 559, 22 Am. St. Rep. 195, we defined 'high-water mark' and prescribed the test for ascertaining it as follows (quoting syllabus): 'The high-water mark of a navigable stream, the line delimiting its bed from the bank, is to be found by ascertaining where the presence and action of water are so usual and long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil'."

On the record before us, which includes a carefully drawn plat and photographs of the shore fronting appellants' property, we think the preponderance of the testimony shows that there is a marked difference between the high and the low-water mark of this lake and that there is a defined shore or beach of sand...