Gasman v. Wilcox, 6130
| Decision Date | 19 July 1934 |
| Docket Number | 6130 |
| Citation | 54 Idaho 700,35 P.2d 265 |
| Parties | SELMA GASMAN, Respondent, v. J. B. WILCOX, Appellant |
| Court | Idaho Supreme Court |
NAVIGABLE WATERS-RIPARIAN RIGHTS, INTERFERENCE WITH-EVIDENCE-INJUNCTION.
1. State holds title to beds of navigable lakes and streams below natural high-water mark for use of whole people subject to public's rights therein and to commerce power of Congress.
2. Land owner suffering special injury could enjoin maintenance of boat works or boat livery, including walks, piling, etc obstructing access to land adjoining navigable lake.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.
Action for injunction. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
Hawkins & Hawkins and Gray & McNaughton, for Appellant.
There is no evidence that defendant's structures have interfered or will interfere with plaintiff's right to reasonable ingress or egress. (Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331.)
W. B. McFarland, for Respondent.
The situation here is comparable to that in Wisconsin and Minnesota where there are many navigable lakes, and thus the case of Union Depot etc. Co. v. Brunswick, 31 Minn. 297, 17 N.W. 626, 47 Am. Rep. 789, would seem to be particularly in point. In that case it was held that the owner had certain riparian rights incident to the ownership of real estate bordering upon a navigable stream among which was the right to enjoy free communication between his abutting premises and the navigable channel of the river, to build and maintain suitable landings and wharves, and to extend the same into the river even beyond low-water mark to the points of navigability, and to this extent exclusively to occupy for such and like purposes the bed of the stream subordinate only to the paramount rights of navigation. (Delaplaine v. Chicago & N.W. R. Co., 42 Wis. 214, 24 Am. Dec. 386.)
Doemel v. Jantz, 180 Wis. 225, 193 N.W. 393, 31 A. L. R. 969, is comparatively a recent case. In that case it was held that the rights of a riparian owner are based upon his title to the uplands, and that the ownership of the uplands or banks gives him exclusive privileges of the shore for the purpose of access to his land and water, which he cannot lose except by purchase, prescription or condemnation, and this is so whether or not he owns the land between high and low water mark, and regardless of such ownership, a person using such strip is a trespasser.
Respondent is the owner and in possession of block twenty-nine and lots one, two, three, seven, eight and nine, and the north half of lot six and the south half of lot ten, block twenty-eight Bayview, in Kootenai county, abutting upon and adjacent to Pend d'Oreille lake. The land above described is particularly and peculiarly adopted for summer homes and summer resorts and was acquired for that purpose by respondent. Upon lot seven, block twenty-eight, respondent has constructed a cottage. Appellant in 1927 purchased from one Mrs. Stoner a boat livery which is now situated on the lake front adjacent to the property of the respondent. Respondent purchased her property in 1932, at which time appellant's boat works consisted of one houseboat not then fully constructed, and a walk leading from the shore out to the houseboat, appellant at that time having commenced rebuilding the works after a fire which occurred in 1931. Since the date of the purchase by respondent and up until the time of the trial appellant has added to his works until it practically occupied the whole waterfront adjacent to lots seven and eight and extended into the water in front of lot nine. In other words, appellant's encroachment in front of respondent's property has been continually progressive since 1932. Appellant lives in one of the floathouses and has two toilets on his works which he and the public use, the contents of which toilets are deposited in the waters of the lake immediately in front of respondent's property. It further appears from the record that by reason of the construction by appellant of his floathouses and other works he has obstructed responden...
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