City of Cedar Rapids v. Marshall
| Decision Date | 12 May 1925 |
| Docket Number | 35990 |
| Citation | 203 N.W. 932,199 Iowa 1262 |
| Parties | CITY OF CEDAR RAPIDS, Appellee, v. HARRY L. MARSHALL et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--F. O. ELLISON, Judge.
AN action in equity to quiet title to certain lands lying along the Cedar River, in the city of Cedar Rapids. It is the contention of the plaintiff that said lands lie within the high-water mark of the river, and that the title to the same was vested in the city. The defendants deny the claim of the plaintiff, and in addition plead abandonment, acquiescence agreement, and estoppel. The trial court entered a decree in behalf of the plaintiff, and by said decree fixed the location of the line between the property of the plaintiff and that of the defendants. Both parties appeal. The defendants, having perfected their appeal first, are referred to as appellants.
Affirmed.
Deacon Sargent & Spangler, for appellants.
O. N Elliott, for appellee.
The Cedar River flows through the city of Cedar Rapids in a general southerly direction. The land involved in this litigation lies on the east side of the river. Appellants' property abuts upon the river, and is a part of Lot 1 in Commercial Block in said city. It is conceded by all parties that the Cedar River through the city of Cedar Rapids was meandered by the government surveyors, and that it was in fact, at the time of the government survey, a navigable stream. It is also admitted that the title to the bed and banks of said river below the ordinary high-water mark became vested in the state of Iowa, at the time of the admission of the state into the Union.
In 1902, the twenty-ninth general assembly, by Chapter 210, made provision for the improvement of the channels of meandered streams within the corporate limits of certain cities. It provided for the creation of a river front improvement commission, and provided that the fee-simple title to the bed of the meandered stream should vest in said commission in trust for the public; and the powers and duties of the said commission with respect to the care of said lands were set forth. It appears that, shortly after the passage of said act, a river front improvement commission was organized in appellee city, which proceeded to perform the duties required by said act.
In 1909, the legislature, by Chapter 66, Acts of the Thirty-third General Assembly, vested the control of said meandered streams, and the beds, banks, and waters thereof, in the cities, and provided that the powers previously conferred upon the river front improvement commission should be transferred to and vested in the city council, which was in turn given power to elect a commission, to be known as the river front improvement commission, which should carry out the powers and duties so conferred. The city proceeded under these statutes, and enacted ordinances consistent therewith.
The particular tract of land in controversy is a lot the eastern line of which is 100 feet west of the west line of First Street. The disputed question is as to where the west line of said lot is located. The block in which said lot is located was platted in 1849, and the original plat shows the river boundary to be some 90 feet west of First Street. The government meander line was located approximately 62 feet west from First Street. The meander line, however, is not a boundary line, but one which was run by the government for the purpose of defining the sinuosities of the banks of the stream, and as a means of extending the quantity of the land in a fractional area subject to sale by the government. Railroad Co. v. Schurmeir, 74 U.S. 272, 7 Wall. 272, 19 L.Ed. 74; Kraut v. Crawford, 18 Iowa 549; Musser v. Hershey, 42 Iowa 356.
There is no dispute between the parties that the true boundary line is the line of ordinary high-water mark. The controverted question on this branch of the case is as to the true definition of ordinary high-water mark, and the question of fact as to where such ordinary high-water mark is located. Appellee contends that the ordinary high-water mark of the river is at least six feet farther east than the line fixed by the trial court; while appellants contend that the ordinary high-water mark of the river is much farther westward than the line so fixed.
The term "ordinary high-water mark" has been frequently defined by this and many other courts. It is not the line reached by unusual floods, but it is the line to which high water ordinarily reaches. In Carpenter v. Board of Com. of Hennepin County, 56 Minn. 513 (58 N.W. 295), it is said:
This was approved by us in Bennett v. National Starch Mfg. Co., 103 Iowa 207, 72 N.W. 507. In that case we said:
"Soil which is submerged so long or so frequently, in ordinary seasons, that vegetation will not grow upon it, may be regarded as part of the bed of the river which overflows it."
In Houghton v. C., D. & M. R. Co., 47 Iowa 370, we discussed the question at length, and held that the high-water mark "* * * is to be regarded as co-ordinate with the limit of the river bed." We said that:
"* * * that only belongs to the river in any proper sense, where its occupancy has been so long continued as to leave a permanent impression of its domain."
See, also, Welch v. Browning, 115 Iowa 690, 87 N.W. 430; Board of Park Com. v. Taylor, 133 Iowa 453, 108 N.W. 927; Merrill v. Cerro Gordo County, 146 Iowa 325; Hubbell v. City of Des Moines, 166 Iowa 581, 147 N.W. 908; State v. Thomas, 173 Iowa 408, 155 N.W. 859.
The difficulty in the case lies not so much in the definition of the term "ordinary high-water mark" as it does in applying the definition to the facts in the case and endeavoring to determine from the evidence just where the line of demarcation exists; or, in other words, the eastern boundary of the true river bed. Were the river and banks in a state of nature at the place in question, the problem would be much easier of solution; but in the last seventy-five years, the changes in the river bank at this place have entirely obliterated all indications on the surface of the natural bed of the stream. At one time there was a steamboat landing at the place in question, and the original bank of the river was cut away, for the purpose of affording access to the landing. A large amount of so-called "fill" has been placed along the river bank at this place during the intervening years. In the course of time, a substantial cement wall was constructed along the river bank, and eventually a large building was erected upon appellants' lot, the western wall of which was placed upon said cement wall.
The record in the case is very voluminous. A large number of old settlers who had known the river and its condition in the early times testified with regard to the location of buildings that were placed in this vicinity when the city of Cedar Rapids was a small town, and also with regard to the condition along the river banks. It is not easy to apply the testimony of all of these witnesses to the existing condition. A series of trenches were dug near appellants' property, and an examination made of the soil, as disclosed in said trenches. This examination revealed a large amount of fill that had been placed upon the river bank. Eminent geologists testified as witnesses with regard to the line which they testified they discovered to be the line of high-water mark, as shown in the soil in these trenches; while other eminent geologists examining the same trenches testified that the character of the soil therein revealed that the high-water mark of the river was at an entirely different point. Botanists testified as experts, regarding an examination made by them of the banks of the river at some distance below the place in controversy, at which places they determined and fixed the line of high-water mark; and, taking as a basis the elevation of the high-water mark so fixed by them, the elevation of the high-water mark at the place in controversy was computed by expert mathematical calculation.
It appears that, since 1902, a government gauge has been maintained at Cedar Rapids, by which the stage of the waters has been determined; and charts are submitted to us, showing the fluctuations of the stream during said period of time.
It is impossible, within the reasonable limits of an opinion, to set out and review in detail the testimony of the numerous witnesses in the case; nor would it be serviceable so to do. Applying the rule heretofore stated in regard to the...
To continue reading
Request your trial