Hillebrand v. Knapp
Decision Date | 13 August 1937 |
Docket Number | 8044. |
Citation | 274 N.W. 821,65 S.D. 414 |
Parties | HILLEBRAND v. KNAPP. |
Court | South Dakota Supreme Court |
Appeal from Circuit Court, Day County; Van Buren Perry, Judge.
Action for injunction by A. R. T. Hillebrand against Francis L Knapp. Judgment for the plaintiff, and defendant appeals.
Reversed.
W. G Waddel and I. S. Coomes, both of Webster, for appellant.
Rex W Harris, of Webster, for respondent.
Rush Lake during periods of normal rainfall is a body of water with an area of about 3,000 acres. When the government survey of contiguous land was made, this lake was meandered. There has been a recession of waters occasioned by years of drouth until this former lake bed is dry. Plaintiff owner of lots or fractional divisions bordering on the meander line instituted this action to enjoin defendant from cutting and removing hay from the portion of the lake bed within the meadered line continguous to the land of the plaintiff. Defendant denies that plaintiff has any right, title, or interest in and to any portion of the lake bed and claims that the privilege of cutting and removing hay is a common right in the public and that plaintiff has no greater right to the portion of the lake bed in controversy than the defendant. Judgment was entered in favor of the plaintiff, and defendant appeals.
The rights of riparian owners have been declared in numerous decisions of this court, but the precise question presented in the instant case has not been adjudicated. A division of waters into navigable and nonnavigable is recognized by the statutory law of this state. Section 262, Rev.Code 1919, provides:
Section 359, Rev.Code 1919, provides:
In the early history of the common law the rights of the public in navigable waters were confined to navigation. But the term "navigable" has been extended and includes waters that are not navigable in the ordinary sense. In Flisrand v. Madson, 35 S.D. 457, 152 N.W. 796, 798, it was held, after a consideration of the statutory provisions quoted and a review of many of the leading cases, that whether or not waters are navigable depends upon the natural availability of waters for public purposes taking into consideration the natural character and surroundings of a lake or stream. This division of lakes and streams into navigable and nonnavigable is the equivalent to a classification of public and private waters. Thus in Lamprey v. State (Metcalf), 52 Minn. 181, 53 N.W. 1139, 1143, 18 L.R.A. 670, 38 Am.St.Rep. 541, the court said:
It was decided by this court in the case of Olson v. Huntamer, 6 S.D. 364, 61 N.W. 479, that where a meandered lake is nonnavigable the patentee of land bordering thereon takes title to the middle of the lake, proportionately with other riparian owners. As to navigable lakes and streams, the state holds title below ordinary low-water mark and the land between such boundary and the ordinary high-water mark is subject to certain public uses which we need not consider. The state holds title to the bed of such lake or stream not in a proprietary capacity, but in trust for the people that they may enjoy the use of navigable waters for fishing, boating, and other public purposes freed of interference of private parties. Flisrand v. Madson, supra; Anderson v. Ray, 37 S.D. 17, 156 N.W. 591; State ex rel. Clark v. Deisch, 38 S.D. 560, 162 N.W. 365; Karterud v. Karterud, 47 S.D. 58, 195 N.W. 972. The question of title to beds of lakes is the subject of an annotation in 23 A.L.R. 757.
The owner of land bounded upon navigable waters has certain rights therein which are not dependent upon the ownership of the soil under the waters, but upon his title to the banks. He cannot be deprived of these rights for private purposes in any event and they cannot be taken from him for public purposes unless adequate compensation is paid. Parsons v City of Sioux Falls (S.D.) 272 N.W. 288. In 27 R.C.L. p 1073, it is said: Such owner has the right to the use of the water and has the right of access to it for that purpose. He has the title to the reliction caused by the gradual recession of the waters and to the accretion caused by the deposit of sand, dirt, or sediment thereon by contiguous waters. Plaintiff contends that when waters recede so far as to be capable no longer of any beneficial use to the public the lake is no longer public or navigable and becomes the property of riparian owners. The statute recognizes acquisition of land by accretion and reliction (section 498 et seq. Rev.Code 1919), but the mere temporary recession of waters occasioned by seasons does not constitute a reliction in the sense of an addition to the contiguous lands. It was said in Flisrand v. Madson, supra, that ...
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