Bowman v. McGoldrick Lumber Co.

• Decision Date: 30 October 1923
• Parties: BERTHA BOWMAN, Respondent, v. MCGOLDRICK LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

219 P. 1063

38 Idaho 30

BERTHA BOWMAN, Respondent, v. MCGOLDRICK LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

October 30, 1923

RAILROAD RIGHT OF WAY-BASE OR QUALIFIED FEE-LICENSEE-NAVIGABLE BODY OF WATER-RIPARIAN RIGHTS.

1. A right of way obtained by a railroad company under the act of Congress March 2, 1899, conveys to such company a base or qualified fee to the land in such right of way, and gives to such railroad company the exclusive use and possession of such right of way so long as it is used by the railroad company for the purposes for which it was granted.

2. In case a railroad right of way bordering a navigable body of water is a base or qualified fee, giving the railroad company the exclusive right of possession and use, a mere license to cross such right of way to the water bordering such right of way, revocable at any time on thirty days' notice from the railroad company, does not confer upon the licensee any riparian rights as to such navigable body of water.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Action for damages caused by obstructing plaintiff's passage between her home and Lake Coeur d'Alene. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellant.

Randall & Danskin and Robt. H. Elder, for Appellant.

On navigable streams in this state riparian rights do not extend beyond the high-water mark. (Northern P. Ry. Co. v Hirzel, 29 Idaho 438, 161 P. 854; Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 103 P. 833; Port of Seattle v. Oregon & Wash. Ry. Co., 255 U.S. 56, 41 S.Ct. 237 65 L.Ed. 265.)

Plaintiff having no riparian rights and not being cut off entirely from egress and ingress to her home must show that she suffered some special injury different from that of the public in general. (27 R. C. L. 1346, sec. 258.)

"One having no riparian rights cannot personally complain of an obstruction to navigation in front of his land." (Port of Seattle v. Oregon & Wash. Ry. Co., supra; Lownsdale v Grays Harbor Boom Co., supra; Potter v. Ind. & L. M. Ry. Co., 95 Mich. 389, 54 N.W. 956; Eldridge v. Cowell, 4 Cal. 80.)

No damages can be allowed for a use to which the land was never put. (Brightman v. Fairhaven, 7 Gray (Mass.), 271; Potter v. Ind. & L. M. Ry. Co., supra.)

W. B. McFarland, for Respondent.

The location of the right of way by the railroad company did not give to the company any riparian rights or invest it with riparian ownership, but it held and holds the right of way only for the purposes served by the construction and operation of railroad tracks. The riparian rights and ownership followed the land and were acquired by respondent's grantor upon issuance of patent thereto. (In re City of Buffalo, 206 N.Y. 319, 99 N.E. 850; New York Cent. & H. R. R. Co. v. Aldridge, 135 N.Y. 83, 32 N.E. 50. 17 L. R. A. 516.)

FEATHERSTONE, Dist. Judge. McCarthy, Dunn and Wm. E. Lee, JJ., concur.

OPINION

FEATHERSTONE, Dist. Judge.

--This is an appeal from the judgment of the district court of Kootenai county, Idaho, the undisputed facts of the case being that for at least four years before the action was instituted, Bertha Bowman, respondent, was the owner of the northwest quarter of the southeast quarter and lots 2, 3 and 4, section 30, township 48, range 4 west, Boise Meridian.

Patent for the above-described land was issued to respondent's predecessor in interest on February 19, 1913, and contained the following reservation: "The lots, 2, 3 and 4, of section 30, of the lands above described are subject to all rights under an application by the Lake Creek and Coeur d'Alene Railroad Company, approved October 16, 1909, under the act of March 2nd, 1899, being an application for a right of way." It is undisputed that at the time respondent's grantor received said patent to the premises the Lake Creek and Coeur d'Alene Railroad Company, the predecessor in interest of the Oregon-Washington Railroad and Navigation Company, had definitely located a right of way over said premises under and by virtue of an act of Congress, granting right of way to railroads and lands for station purposes to railroads through Indian reservations (3 F. Stats. Ann. 511, 30 Stats. at Large 990, U.S. Comp. Stats. 4181-4188), and had constructed and has at all times since and now is operating a railroad across said lots. This statute is similar to the various statutes granting rights of way to railroads across public lands and very similar to one of said statutes, that of March 3, 1875, 18 U.S. Stats. at Large, 482, U.S. Comp. Stats. 4221-4226, which was passed upon by this court in the case of Oregon Short Line R. R. Co. v. Stalker, 14 Idaho 362, 390, 94 P. 56, where the court speaking of M. K. & T. Ry. Co. v. Roberts, 152 U.S. 114, 14 S.Ct. 496, 38 L.Ed. 377, said: "There it is held that such grants have the 'attributes of the fee, perpetuity and exclusive use and possession.' There is nothing in the contention of counsel that the appellant who holds the legal title had the right to the use and possession of said station ground until it is needed by the company, as the company, under the authorities, has the exclusive right to the use, possession and occupation of the ground, whether its buildings and improvements cover it all or not."

Under said decision it is apparent that the nature of the grant made in this case as to the right of way and station grounds is a base, qualified or limited fee and is more than a mere easement, giving the exclusive possession and right of use of the land for the purposes contemplated by the law, a reversionary interest remaining in the United States to be conveyed by it to the person to whom the land may be patented whose rights will be subject to those of the grantee of the right of way and station grounds. It also appears from the undisputed evidence that by reason of the aforesaid grant, the railroad definitely located a right of way 200 feet in width along the shore line of the said lots 2, 3 and 4, and that such right of way extended down to the water's edge practically the entire distance, and that said lands fronted on the lake, it being shown that at the place where the county road came down to the water's edge a very small portion of said lands lies between the right of way of the railroad company and the lake, but respondent does not complain of being deprived of ingress to and egress from that portion of the land in controversy. She states in her testimony that this landing was too far from her house to be as convenient as what she terms her "private landing," which was on the right of way of the railroad company and on the land leased by the company to the appellant herein.

Respondent's complaint consisted of two causes of action. Her first was based upon the allegations that appellant for four years had used her shore line for the storage of logs and booms and that...