Hanford v. St. Paul & Duluth Railroad Company
| Decision Date | 03 April 1890 |
| Citation | 44 N.W. 1144,43 Minn. 104 |
| Parties | Heber H. Hanford and another v. St. Paul & Duluth Railroad Company |
| Court | Minnesota Supreme Court |
Original Opinion of June 10, 1889, Reported at: 43 Minn. 104.
Order reversed.
Ensign Cash & Williams and Geo. B. Young, for appellant.
Wm. W Billson, for respondents.
After the filing of the foregoing opinion a petition for reargument was filed, and was granted July 16, 1889; and the cause was again argued at the October term, 1889.
After the filing of our decision in this case, (supra, p. 104,) a reargument was ordered, upon the application of the respondents; it being considered that great public interests were involved which deserved further consideration by the court, with the aid which further research and argument might afford. The principal question to which such reargument was directed was whether the riparian rights which the owner of land abutting upon navigable waters enjoys in the submerged lands between the outer boundary of his ownership in fee and the point of navigability, may be alienated or be severed from the riparian land, so as to exist as rights or property in gross. In our former decision in this case we declared such rights to be incapable of separate existence, and upon that proposition the decision rested. In the reargument of this question the principles of the law and the authorities which could be deemed in any way to bear upon it have been exhaustively and ably presented by learned counsel upon both sides, and, although this principle had been understood to have been settled in Lake Superior Land Co. v. Emerson, 38 Minn. 406, (38 N.W. 200,) we have, in view of the importance of the subject, entered into a full examination and reconsideration of it. We have been thus led to the conclusion that the proposition that the riparian proprietor's peculiar right of occupancy and use of lands beyond the boundary of his ownership in fee is inalienable and incapable of existence, apart from the right of occupancy and use of the adjacent bank, should not be adhered to. While our former decisions were deemed to be in strict accordance with legal principles, and to follow logically from the fact that the riparian rights came into existence as incidents of the proprietorship of the adjacent shore, we are satisfied that we did not sufficiently consider, in their bearing upon the question, the peculiar nature, extent, and relation of the private and public rights, respectively, in the lands lying between the boundary of the riparian owner's fee and the point of navigability, and that undue importance was given to the fact that these riparian rights have their origin in the relation of the riparian lands to the water, and are properly incident or appurtenant to the riparian lands.
As we proceed now to notice the nature and extent of certain rights growing out of riparian proprietorship, we desire that attention should be given to the facts that those rights partake largely of the ordinary qualities of private property, which is in general divisible and transferable by the proprietor; that they are recognized as valuable property rights in the law; that they are of such a nature that they may be enjoyed separate from the adjacent land to which they were originally appurtenant; and to the absence of substantial reasons, so far as the nature of these rights are concerned, why they may not exist independently of the adjacent riparian estate. We do not affirm that all riparian rights are thus severable. Some, from the very nature of things, may be incapable of separate existence.
In this state the title of the proprietor of lands abutting upon navigable waters extends to low-water mark; the bed of the stream or body of water, below low-water mark, being held by the state, not in the sense of ordinary absolute proprietorship, but in its sovereign governmental capacity, for common public use. Union Depot, etc., Co. v. Brunswick, 31 Minn. 297, (17 N.W. 626,) and cases cited. The estate or interest of the riparian owner in the bed of the stream above low-water mark is subject to the right of the public to use the same for the purposes of navigation; but, restricted only by that paramount public right, the riparian owner enjoys valuable proprietary privileges, among which we shall consider particularly the right to the use of the land itself for private purposes. A considerable extent of the shores, not only along tide-waters of the ocean coasts, but on our great inland waters, are of such a nature, out to and even beyond low-water mark, as to be in general unavailable by the public for the purposes of navigation, and must remain forever waste and useless lands, unless reclaimed by artificial means from the shallow water covering them, or unless otherwise improved. It is established beyond question in this state, and in other states as well, that the proprietor of the riparian lands may make such improvements. Subject only to the limitation that he shall not interfere with the public right of navigation, he has the unquestionable and exclusive right to construct and maintain suitable landings, piers, and wharves into the water, and up to the point of navigability, for his own private use and benefit. Rippe v. Chicago, D. & M. R. Co., 23 Minn. 18; Brisbine v. St. Paul & Sioux City R. Co., Id. 114; Morrill v. St. Anthony Falls Water-Power Co., 26 Minn. 222, (2 N.W. 842;) State v. Minneapolis Mill Co., 26 Minn. 229, (2 N.W. 839;) Carli v. Stillwater Street Ry., etc., Co., 28 Minn. 373, (10 N.W. 205;) Union Depot, etc., Co. v. Brunswick, 31 Minn. 297, (17 N.W. 626;) Lake Superior Land Co. v. Emerson, 38 Minn. 406, (38 N.W. 200;) Dutton v. Strong, 66 U.S. 23, 1 Black 23, 17 L.Ed. 29; Yates v. Milwaukee, 77 U.S. 497, 10 Wall. 497, 19 L.Ed. 984. And it is obviously immaterial, if the public interests be not prejudiced, whether the submerged land be covered with wharves of timber or stone, or be reclaimed from the water by filling in with earth so that it becomes dry land. The land may be so reclaimed. Union Depot, etc., Co. v. Brunswick, 31 Minn. 297, (17 N.W. 626;) Clement v. Burns, 43 N.H. 609; Bell v. Gough, 23 N.J.L. 624; Providence Steam-Engine Co. v. Providence & S. Steamship Co., 12 R.I. 348, 363. As the right of private use and enjoyment of the improved or reclaimed premises will continue so long, at least, as it does not interfere with the limited and defined public interests, it is obvious that, in general, it may continue forever.
This private right of use and enjoyment is not, we think, limited to purposes connected with the actual use of the navigable water, but may extend to any purpose not inconsistent with the public right. Rippe v. Chicago, D. & M. R. Co., 23 Minn. 18; Brisbine v. St. Paul & Sioux City R. Co., Id. 114; Parker v. West Coast Packing Co., 17 Ore. 510, (21 P. 822.) As was said in Morrill v. St. Anthony Falls Water-Power Co., 26 Minn. 222, 228, (2 N.W. 842,) referring to the decision in Dutton v. Strong, 66 U.S. 23, 1 Black 23, 17 L.Ed. 29: "The right to encroach upon the shallow water of the lake, by an exclusive appropriation even of the underlying soil, must rest upon the proposition that the riparian owner may make any use of the lake or river opposite his land not inconsistent with the public right." The following language of the Morrill Case, just cited, although used with reference to the riparian right to use the water of a navigable stream, is applicable here: "The limit to the private right is imposed by the public right, and the private right exists up to the point beyond which it would be inconsistent with the public right." No one but the riparian proprietor has the right to improve and occupy such premises for private purposes, and it does not concern other persons how or for what particular purposes the reclaimed lands may be used, so long as there is no violation of the maxim, sic utere tuo ut alienum non laedas. It is for the interest of the state that such lands, not available for the public purposes for which alone the state exercises authority over them, shall be improved and used for profitable enterprises, rather than that they lie forever waste and unproductive. And the state, while recognizing the ancient riparian right of occupancy, has not assumed to prescribe or to limit the purposes or manner of its enjoyment. That seems to have always been left to the discretion of the person in whom the right is exclusive, and the decided cases afford many illustrations of uses in no way connected with the purposes of navigation.
This right of the riparian proprietor, even before it has been in any manner exercised by reclaiming or improving the premises -- the right itself to reclaim, improve, or occupy, -- is a property right, vested in him, recognized and protected in the law as property. He cannot be deprived of it without due process of law. It cannot be taken from him, and devoted to public use, without compensation. Brisbine v. St. Paul & Sioux City R. Co., 23 Minn. 114; Carli v. Stillwater Street Ry., etc., Co., 28 Minn. 373, (10 N.W. 205;) Union Depot, etc., Co. v. Brunswick, 31 Minn. 297, (17 N.W. 626;) Yates v. Milwaukee, 77 U.S. 497, 10 Wall. 497, 19 L.Ed. 984; Bell v. Gough, 23 N.J.L. 624; Delaplaine v. Chicago & N.W. Ry. Co., 42 Wis. 214; Lyon v. Fishmongers' Co., L. R. 1 App. 662. Such property is subject to the law of eminent domain. A railroad company, locating its line of road over such submerged lands, might acquire, by condemnation proceedings and the payment of compensation, the necessary right of way, divesting the riparian owner of so much of his property. But cannot the riparian proprietor voluntarily convey, for an agreed compensation, what the...
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