Flisrand v. Madson
| Citation | 152 N.W. 796,35 S.D. 457 |
| Decision Date | 17 May 1915 |
| Docket Number | 3615 |
| Parties | OLE N. FLISRAND, Plaintiff and appellant, v. M. CHRIS MADSON et al., Defendant and respondents. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Kingsbury County, SD
#3615--Affirmed
Cheever & Cheever
Attorneys for Appellant.
E. F. Green, and Ami N Whiting
Attorneys for Respondents.
Opinion filed May 17, 1915; Rehearing denied July 24, 1915
This is an action to quiet title and determine conflicting property rights, brought by plaintiff against defendants. Plaintiff alleged that he was the owner of lot 1, in section 11, and lots 1, 2, and 3, and the S.E. 1/4 of N.W. 1/4, and the S. 1/2 of N.E. 1/4 of section 14, and relicted lot 21, all in township 112, range 53, Kingsbury county, and prayed judgment quieting and confirming title thereto in himself. Defendants answered, admitting plaintiff to be the owner of lot 1, section 11, and lots 1, 2, and 3, and the S. E. 1/4 of N.W. and the S. 1/2 of N.W. 1/4 of section 14, but denied that there is or ever was a piece or parcel of land legally described and known as "relicted lot No. 21," and denied that plaintiff was the owner of the land included in said alleged or supposed relicted lot 21, and alleged that Lake Albert is a meandered body of water, abutting on plaintiff's said land lots, and that at the time of the commencement of this action there was situated in said lake, opposite the land of plaintiff, about 18 rods from the outer shore, an island, entirely surrounded by water, consisting of about 25 acres, the average altitude of which was about 20 feet above high-water mark, and which island never had been covered by the water of said lake. Defendants, by way of counterclaim, also alleged that they and their successors in interest had, for more than 20 years preceding the commencement of this action, been in the notorious, and exclusive adverse possession of the whole island, and as such adverse occupants were the owners of said island, and prayed judgment quieting and confirming title thereto in defendants. The allegations of defendants' counterclaim were denied by plaintiff. The court found that plaintiff was the owner of those portions of section 11 and 14, claimed by him, outside the meander line of said lake, but found that plaintiff had no title to any part of said lands embraced within what is designated as "relicted lot No. 21," and being within said meander line; that no legal survey was ever made of said alleged relicted lot No. 21, under the provisions of chapter 173, Laws of 1903, and that said island is not relicted land, subject to be surveyed under the provisions of said law. The court also found that, as against plaintiff, the defendants and their successors in interest for more than 20 years had been in open, notorious, and exclusive possession of the whole of said island, and, as against plaintiff, were the owners and entitled to possession thereof. judgment was entered in accordance with said findings, and plaintiff appeals, alleging insufficiency of the evidence to sustain the findings in relation to relicted lot 21, and also various other assignments of error.
It will be noted that the only controversy in this case is in relation to what is designated "Relicted Lot No. 21." The following plat shows approximately the location of plaintiff's lands bordering on said lake, and the alleged relicted lot No. 21, the boundaries of said lot 21 being shown by the dotted lines:
The approximate location of the island is also shown. It appears from the findings, and it was also shown by the evidence, that Lake Albert is a natural, inland, meandered lake, with irregular boundary, and with extreme length of about 5 miles, and with extreme width of about 2 1/2 miles; that the amount of water in said lake is variable, depending upon climatic conditions; that at times of high water said lake bed is covered by water varying from one to ten feet deep; that at times of extreme and extended drought the waters of said lake gradually recede from the meander line and render portions of said lake bed fit for the cultivation of crops; that except at rare periods of extended drought the water in said lake bed is of a depth of from one to ten feet; that at the time of the commencement of this action, and for a long time prior thereto, there was an abundance of fish in the water of said lake, and for many years the said lake has been, and continues to be, generally resorted to by the public for the purposes of boating, fishing, hunting, and trapping; that at the time of the commencement of this action the said island was entirely surrounded by water, approximately from one to five feet deep; that at times of extreme low water there is no water between the island and the meander line of plaintiff's said lot, section 11; that at the time of the survey of said meander line around said lake by the United States, no survey or note was made of said island, and the same never has been noted, meandered, or surveyed by the United States.
Under the particular circumstances disclosed as to the character and conditions of Lake Albert, we are of the view that no part of the said alleged lot 21 was ever in fact relicted land, that legal reliction has never occurred, and that plaintiff never has had any title to any part of, said alleged relicted lot, within the boundaries of the lake bed below the low-water mark, or any interest in any part thereof, excepting only his purely riparian right appurtenant to his meandered lots or parcels of land bordering on the said lake. Reliction is land added to a tract fronting upon the waters of a lake, pond, or stream, by the permanent uncovering of the land--the laying bare of the bottom by the permanent retirement of the waters, never to return again. The temporary subsidence of the waters occasioned by the seasons, or by periods of drought, does not constitute reliction in the sense or. an addition to the contiguous land. Reliction is said to rest in the law of nature, and is analogous to the right of the owner of a tree to its fruit. Reliction is a permanent change that takes place by gradual and imperceptible degrees. Where water periodically rises over land and then recedes, there is no reliction. 7 Words and Phrases, 6063; 1 Ruling Case Law, 226, 240; 1 Weil on Water Rights, § 901; 40 Cyc. 637; 1 Farnham on Waters, p. 320; Sapp v. Frazier, 51 La. Ann. 1718, 26 South. 378, 72 Am.St.Rep. 493; Carr v. Moore, 119 Iowa 152, 93 N.W. 52, 97 Am.St.Rep. 292. But, however, where the adjoining proprietor owns the title to the bed of the lake, it is immaterial when or how the shore is enlarged or the waters recede. Carr v. Moore, supra; Railroad Co. v. Butler, 159 U.S. 87, 15 S.Ct. 991, 40 L.Ed. 85; Gouverneur v. Ice Co., 134 N.Y. 355, 31 N.E. 865, 18 L.R.A. 695, 30 Am.St.Rep. 669. It therefore becomes necessary to determine whether or not the plaintiff, by virtue of the grant under which he claims, took title to the center of the lake in question, or whether only to the water's edge at low-water mark, and what are his rights to the shore between high and low water mark. The fact alone that the lake in question was meandered by the .government survey does not directly control this matter as a meandered line is not considered a boundary line, but merely serves to define the sinuosities of the bank of the lake, and a means of ascertaining the amount of land in the fractional tract subject to sale, and which is to be paid for by the purchaser. St. Paul Ry. Co. v. Schurmeier, 7 Wall. 272, 19 L.Ed. 74, and note page 972. We are of the view that a determination of these questions must depend upon the character of the lake in question.
Section 192, Civil Code, provides:
Section 289, Civil Code, provides as follows:
It is evident that the framers of these sections of our statute law contemplated that there were "navigable lakes" within the boundaries of this state. What, then, is meant by a "navigable lake," within the meaning of these sections of our Code? It is said that formerly, under the English common law, the test as to whether waters were public or private was whether they were navigable or not, and the test of navigability was whether or not the tide ebbed and flowed. Therefore the common-law test of navigability, as indicated by ebb and flow of tide, has no application to our natural inland lakes, and we must look for some other statutory or common-law test to ascertain what constitutes a navigable lake. We should look where the circumstances and natural surroundings are similar to those of this state. We have no express statutory test as to what constitutes a navigable lake. The applying of the common-law tide test was for the ultimate purpose of determining whether waters were public or private. In this country many courts have held that whether or not certain waters are navigable depends on the natural availability of such waters for public purposes, taking into consideration the natural character and surroundings of such waters. Mr. Farnham, in his work on Waters and Water Rights, p. 265, says:
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