Dana v. Hurst

• Decision Date: 06 April 1912
• Docket Number: 17,653
• Citation: 122 P. 1041,86 Kan. 947
• Parties: HELEN OBEE DANA, Appellee, v. FRED HURST et al. and THE STATE OF KANSAS, Intervenor, Appellants
• Court: Kansas Supreme Court

122 P. 1041

86 Kan. 947

HELEN OBEE DANA, Appellee, v. FRED HURST et al. and THE STATE OF KANSAS, Intervenor, Appellants

No. 17,653

Supreme Court of Kansas

April 6, 1912

Decided January, 1912.

Appeal from Reno district court. Opinion filed November 11, 1911. Reversed. Rehearing allowed, December 18, 1911. Opinion on rehearing filed April 6, 1912. Reversal sustained.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

RIPARIAN RIGHTS--Bed of Arkansas River--Title--Navigation. The title to the bed of the Arkansas river within the boundaries of Kansas is in the state.

F Dumont Smith, for appellants Fred Hurst et al.

John S. Dawson, attorney-general, for the intervenor.

F. F. Prigg, and C. M. Williams, for the appellee.

WEST J. JOHNSTON, C. J., BENSON, J., dissenting.

OPINION

WEST, J.:

Plaintiff sued to recover possession of certain land in Reno county, bounded on the north by the Arkansas river. The defendant claimed a portion of the tract under a school-land purchase and on the theory that it is an island in the bed of a navigable stream and therefore subject under chapter 378 of the Laws of 1907 (Gen. Stat. 1909, § 8202), to sale as school land. The plaintiff contended that this portion of the tract was an accretion and denied the navigability of the river and the existence of an island. All of these questions were submitted to the jury, who found generally for the plaintiff. The defendant appeals, and insists that the court should take judicial notice that the Arkansas river is navigable in such sense as to vest the title of the bed in the state. Instructions were requested to the effect that the beds of all rivers navigable or meandered belong to the state and that a riparian owner has no interest in islands formed therein. The one clear question on which a decision is sought is, Who owns the bed of the river? It is argued that from public records, declarations and enactments we should judicially regard the river as set apart for a public highway for interstate commerce, its bed thereby vesting in the state. It is not pretended that the river is now navigated or navigable in fact in Kansas, and the court, as well as everybody else, knows that it is not. But does this conclude the matter? We take judicial notice that the Arkansas is the largest affluent of the Mississippi except the Missouri, that it is 2000 miles long, draining an area of 189,000 square miles, and is navigable for more than 600 miles up from its mouth, that through its long course in Kansas both of its banks were meandered by the government surveyors, that its average width is about one-fourth of a mile, and that several appropriations, amounting in all to $ 59,000, for its improvement as far up as Wichita have been made by congress. (20 U.S. Stat. at L., p. 36; 21 U.S. Stat. at L., pp. 187, 477.) We also take judicial notice that from Wichita up to the west line of the state it is substantially the same in width, volume and character as from Wichita down to the southern boundary of the state. While the evidence offered on the trial indicated that the north bank is not meandered, the records in the auditor's office, of which we must take notice, show that the stream was meandered as stated along its entire course in this state. We likewise take notice that in the act of February 20, 1811, to enable the people of the territory of Orleans to form a constitution and state government, it was provided that the Mississippi river and the navigable rivers and waters leading into the same or into the Gulf of Mexico should be common highways and forever free as well to the inhabitants of the state as to other citizens of the United States, without any tax duty, import or toll therefor imposed by the state. (2 U.S. Stat. at L., p. 642.) Similar provision was found in the act admitting Louisiana (2 U.S. Stat. at L., p. 703), in the act creating the state of Mississippi (3 U.S. Stat. at L., p. 349), in the act creating the Missouri territory, and in the act of March 6, 1820, authorizing a convention to constitute the state of Missouri. A similar declaration was made in the Ordinance for northwestern territory. Ever since 1796, government surveyors have by congress been directed to sectionalize the public lands and to divide them by north-and-south lines to the true meridian and by others crossing them at right angles so as to form townships six miles square, unless where "the course of navigable rivers may render it impracticable." (Gould on. Waters, 2d ed., § 69, note 6.)

The act of May 17, 1796, provided that "all navigable rivers within the territory to be disposed of shall be deemed to be and remain public highways," and this has been followed by many other similar enactments. (Railroad Company v. Schurmeir, [7 Wall.] 74 U.S. 272, 288, 19 L.Ed. 74.)

Section 5251 of the Revised Statutes of the United States of 1878 provides that "all the navigable rivers and waters in the former territories of Orleans and Louisiana shall be and forever remain public highways."

In Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428, 11 S.Ct. 808, it was said in speaking of a grant upon meandered navigable streams:

"It has never been held that the lands under water, in front of such grants, are reserved to the United States, or that they can be afterwards granted out to other persons, to the injury of the original grantees." (P. 381.)

In Kregar v. Fogarty, 78 Kan. 541, 96 P. 845, it was said:

"In disposing of public land bordering upon rivers it is not the policy of the government to reserve title to the lands under water, whether the stream be navigable or not. The government parts with its whole title, leaving the question of boundary, whether the shoreline or the thread of the stream, to be determined by the local law. In case of navigable waters in this state the boundary is at the bank, and the title to the bed of the stream is in the state." (p. 545.)

The general test of navigability is well stated in the language quoted with approval in Kregar v. Fogarty , supra, which in effect is, that any water to be navigable should be susceptible of use for purposes of commerce or possess the capacity for valuable floatage in transportation to market of the products of the country through which it runs, and should be of practical usefulness to the public as a public highway in its own state and without the aid of artificial means; that a theoretical or potential navigability, or one that is temporary, precarious and unprofitable, is not sufficient. But present navigability must not be confused with past navigability or setting apart for highway purposes, for we can not conceive or concede that the title to the bed of a navigable stream to-day in the state will to-morrow be in the riparian owner because the river has in the meantime filled up or ceased to flow. If when this land was granted to the patentee the title to the bed of the stream was in the state, it is in the state now, regardless of present navigation or present navigability. (Wood v. Fowler, 26 Kan. 682, 688.) The supreme court of Iowa, In Wood v. C., R. I. & P. R. Co., 60 Iowa 456, 15 N.W. 284, held that an act of congress declaring a navigable river unnavigable does not extend the fee of a riparian owner to the center of the stream. It was said:

"We have been unable to discover any authority or principle upon which we could hold that the act had that effect. The case is somewhat like that of the vacation of a street. The boundary of the land abutting on the street is not changed. If the adjacent owner was the owner of the fee to the middle of the street, he would, of course, enjoy whatever benefit there might be in the extinguishment of the public easement. But if he was not the owner of such fee, the vacation of the street would not confer it." (p. 459.)

This was followed in Serrin et al. v. Grefe, 67 Iowa 196, 25 N.W. 227, and referred to in Brown v. Cunningham, 82 Iowa 512, 48 N.W. 1042. If an express declaration by the legislature or by congress that a river is unnavigable does not have the effect of divesting the state of title to the bed, then mere nonuse or the action of the elements diminishing the depth of the stream can not well have such effect. Originally the ebb and flow of the tide determined the navigability of a stream, but this ancient common-law test was found impracticable in this country for few of our rivers are susceptible to tidal influence; hence the ruling of navigability in fact was finally adopted, varying in different jurisdictions, both rules having reference more frequently to questions of control for purposes of actual navigation than to questions of riparian title. In a prairie country traversed by inland streams of great length, subject to recurring freshets and droughts and extreme evaporation, the test for title purposes can hardly be that applied to rivers like the Hudson surging to the sea with volume and between banks practically unaffected by soil or season.

For a generation or more land transportation has so far superseded the use of water craft in this region that even the Missouri, a stream known to be navigable in fact and in law, has ceased to float upon its waters along the boundary of this state any appreciable commerce of the country, and the Kansas, which we have judicially noticed as navigable ( Wood v. Fowler, 26 Kan. 682), floats none at all. In Burroughs v. Whitwam, 59 Mich. 279, 26 N.W. 491, in discussing a declaration in the Ordinance of 1787 in part identical with the one contained in the acts of admission referred to, it was held not to apply to every little rill or brook whose waters finally reached great rivers into a navigable stream, but that:

"It was intended to and did apply only to such streams as were then...