In re Sanders Beach
| Decision Date | 22 September 2006 |
| Docket Number | No. 32411.,No. 32444.,No. 32410.,No. 32380.,No. 32971.,No. 32443.,No. 32970.,No. 32337.,32337.,32380.,32410.,32411.,32443.,32444.,32970.,32971. |
| Parties | In the MATTER of the Ownership of SANDERS BEACH regarding lands south of Government Lot 5, Section 24, TWP 50 North, Range 4 West, BM between Eleventh Street and Fifteenth Street, City of Coeur d'Alene. The City of Coeur D'Alene and William Douglas, in his capacity as Kootenai County Prosecuting Attorney, Plaintiffs-Respondents, v. Michael L. and Jeanette G. Mackin, Wesley L. and Margaret E. Delaney, Wayne and Nancy Nash, Susan Cliff, Gerald and Patricia M. Frank, Charles S. and Shirley M. Wilke, Dawn C. Kettell, Berger Family Investments, LLC, Richard and Nona Barclay, and John C. Brett, Defendants-Appellants, and State Board of Land Commissioners, Dirk Kempthorne, Governor, Lawrence G. Wasden, Attorney General, Benito T. Ysursa, Secretary of State, Keith L. Johnson, Controller, Marilyn Howard, Superintendent of Public Instruction, Defendants-Cross Defendants-Appellants, and State of Idaho, Third Party Defendant-Appellant, and T. Gregory and Shana R. Crimp, Defendants-Cross Claimants-Third Party Plaintiffs-Respondents, and Sanders Beach Preservation Association, Inc., Defendant-Cross Claimant-Respondent, and Coeur D'Alene Lakeshore Property Owners Association, Greg Delavan, Gary Bartoo, and John McGruder, Interveners-Appellants, and The Idaho Conservation League, Intervener-Cross-Appellant. |
| Court | Idaho Supreme Court |
John F. Magnuson, Coeur d'Alene, for appellants Michael and Jeanette Mackin, Wesley and Margaret Delaney, Wayne and Nancy Nash, Susan Cliff, Gerald and Patricia Frank, Charles and Shirley Wilke, Dawn Kettell, and Berger Family Investments, LLC.
Richard K. Kuck, P.C., Coeur d'Alene, for appellant John Brett.
Hon. Lawrence G. Wasden, Attorney General, Boise, for appellants State Board of Land Commissioners and State of Idaho. Nicholas Krema argued.
Paine Hamblen Coffin Brooke & Miller, Coeur d'Alene, for appellants Coeur d'Alene Lakeshore Property Owners Association, Greg Delavan, Gary Bartoo, and John McGruder. Peter Erbland argued.
William M. Eddie, Boise, for cross-appellant Idaho Conservation League.
Quane Smith, Coeur d'Alene, for respondents City of Coeur d'Alene and William Douglas. Michael Haman argued.
Givens Law Firm, Coeur d'Alene, for respondents Gregory and Shana Crimp. Raymond Givens argued.
Scott W. Reed, Coeur d'Alene, for respondent Sanders Beach Preservation Association, Inc.
This is an appeal from a judgment determining that the ordinary high water mark of Lake Coeur d'Alene at a place called Sanders Beach is 2130 feet above sea level and that the abutting property owners do not have the right to exclude the public from that portion of the beach below such ordinary high water mark when it is not covered by water. We vacate the judgment and remand for further proceedings.
On October 19, 2004, the City of Coeur d'Alene and William Douglas, in his capacity as the Kootenai County Prosecuting Attorney, (herein jointly called "City") brought this action to have the ordinary high water mark (OHWM) determined for a portion of shoreline known as Sanders Beach on Lake Coeur d'Alene. The beach at issue is bounded on the east by 11th Street, on the west by 15th Street, on the north by seawalls, and on the south by the ordinary high water mark (OHWM) of Lake Coeur d'Alene.
The State of Idaho owns, in trust for the public, title to the bed of navigable water lying below the OHWM as it existed at the time Idaho was admitted into the Union. We had previously ruled that the OHWM of Lake Coeur d'Alene at the time of statehood was presumed to be 2128 feet above sea level. On motions for summary judgment, the district court in this case determined that the OHWM was 2130 feet. Because of the gradual incline of Sanders Beach, raising the OHWM by two feet would transform much of the beach into state-owned property.
The property owners along the beach sought a ruling that their littoral rights gave them authority to exclude the public from that portion of the abutting lakebed not covered by water. The district court rejected their argument and held that their littoral rights did not include the right to exclude the public from state land.
The district court entered a two part judgment. Paragraph 1 set the OHWM of Lake Coeur d'Alene at Sanders Beach at an elevation of 2130 feet above mean sea level. Paragraph 2 denied the property owners' claim that their littoral rights permitted them to exclude the public from the lake bed when it was not covered by water. After entering judgment, the district court certified it as final pursuant to Rule 54(b) of the Idaho Rules of Civil Procedure. These appeals then followed.
1. Did the district court err in determining that the OHWM of Lake Coeur d'Alene at Sanders Beach was 2130 feet above mean sea level?
2. Did the district court err in granting the City's motion for a preliminary injunction?
3. Did the district court err in holding that the littoral rights of owners of property abutting navigable waters do not include the right to exclude the public from dry land lying below the OHWM?
4. Are either the Crimps or the Sanders Beach Preservation Association, Inc., entitled to an award of attorney fees against the State Board of Land Commissioners, the commissioners individually, or the State of Idaho?
In an appeal from an order of summary judgment, this Court's standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment. Infanger v. City of Salmon, 137 Idaho 45, 44 P.3d 1100 (2002). All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party. Id. Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id. If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review. Id.
The State of Idaho owns, in trust for the public, title to the bed of navigable waters below the OHWM as it existed on July 3, 1890, when Idaho became a state. Idaho Forest Indus., Inc. v. Hayden Lake Watershed Improvement Dist., 135 Idaho 316, 17 P.3d 260 (2000); Erickson v. State, 132 Idaho 208, 970 P.2d 1 (1998). The OHWM is "the line which the water impresses on the soil by covering it for sufficient periods to deprive the soil of its vegetation and destroy its value for agricultural purposes." I.C. § 58-104(9). In Erickson v. State, we held that the OHWM of Lake Coeur d'Alene was presumed to be its current level of 2128 feet above sea level. The district court determined that the OHWM was 2130 feet above sea level at Sanders Beach. In doing so, the court erred in several respects.
1. The district court erred in holding that the ordinary high water mark of Lake Coeur d'Alene could vary by several feet from place to place around the lakeshore. The district court held that the OHWM of Lake Coeur d'Alene varied from place to place around the lakeshore. It therefore ruled that evidence of the OHWM at other areas around the lake was "inadmissible and rejected because it is based upon . . . the erroneous conclusions that the OHWM must be the same at all locations on the lake."
The OHWM is a line created by the water in the lake remaining at particular level for a long enough period of time that it deprives the soil covered by the water of its vegetation. Since the OHWM is created by the water covering the soil for a period of time, and since water seeks its level, the OHWM will be the same at all places around the lake. As we said in Raide v. Dollar, 34 Idaho 682, 690, 203 P. 469, 472 (1921) (emphasis added), "By the term `high-water mark' is meant those points along the shore where water rises to such a height as may reasonably be anticipated . . . ."
The district court's rejection of evidence from other areas around the lake can only be based upon the assumption that under normal conditions the elevation of the water in one part of the lake could be several feet higher than the elevation of the water in another part of the lake. We commented upon that assumption in Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 26, 124 P. 783, 784 (1912), wherein we stated, "The courts will take judicial notice of the fact that water seeks its level; and if a witness should testify that it stood up in hillocks or piles, like stone or earth, a court would not be expected to believe it."
As we said in Erickson v. State, 132 Idaho 208, 212, 970 P.2d 1, 5 (1998) (emphasis added), "[T]o prove the OHWM, evidence must be presented which establishes a specific line impressed upon the soil." The OHWM of a lake is a specific line, not differing specific lines. Thus, in Erickson we stated with respect to Lake Coeur d'Alene, "[T]he current OHWM of the Lake is 2128 feet." Id. at 211, 970 P.2d at 4 (emphasis added).
The district court supported its rejection of conflicting evidence from other parts of the lake by its misinterpretation of the following statement from Driesbach v. Lynch, 71 Idaho 501, 507, 234 P.2d 446, 449 (1951).
Appellants assign as error the ruling of the court in refusing to admit defendants Exhibit No. 11 in evidence; this exhibit is a photograph of the shore line of other property in the same general area, but not involved in this litigation, and the...
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