Johnson v. Johnson

• Decision Date: 23 March 1908
• Citation: 14 Idaho 561,95 P. 499
• Parties: O. P. JOHNSON, Appellant, v. WM. M. JOHNSON and WALTER GRIDLEY, Respondents
• Court: Idaho Supreme Court

95 P. 499

14 Idaho 561

O. P. JOHNSON, Appellant, v. WM. M. JOHNSON and WALTER GRIDLEY, Respondents

Supreme Court of Idaho

March 23, 1908

ACTION TO QUIET TITLE-GOVERNMENT SURVEY-BOUNDARY LINES-RIPARIAN OWNERSHIP-STREAMS AS PUBLIC HIGHWAYS-EASEMENTS-NAVIGABLE STREAMS.

1. Under the provisions of secs. 2395 and 2396, U.S. Rev. Stat. public lands are to be surveyed into townships six miles square, and each in turn subdivided into thirty-six sections of a mile square, except where a line of an Indian Reservation, or the tracts of land theretofore surveyed or patented, or the course of navigable rivers may render this impracticable, and in that case, this rule must be departed from no further than such particular circumstances require.

2. Where lands front upon navigable streams, and a line meandering the margin of such stream is run for the purpose of ascertaining the quantity of land to be paid for, such meander line is not regarded as a boundary line, but only points out the sinuosities of the bank for the purpose of arriving at the area of land to be paid for.

3. Under the common law, the title to the soil under tide water was in the king, his title extending as far as the tide. In non- tidal streams, whether navigable or not the title in fee to the bed of the stream was in the riparian owner; but if the stream be navigable in fact, the public had an easement or right of passage over and along such stream.

4. Under the common law, a riparian proprietor bounded on or by a stream above tide water, although navigable in fact acquires exclusive ownership in the soil to the middle thread of the current, subject to the public easement of navigation and all grants of the government bounded upon or by such stream entitle the grantee to all islands lying between the main land and the center thread of the current, unless it appears, either from the grant itself or from other circumstances surrounding the same, that the government intended to reserve such island from such grant.

5. When the government grants land for a consideration, and does not reserve any rights or interests that would ordinarily pass by the rules of law, and does no act which indicates an intention to make such reservation, the grant includes all that would pass by it if it were a private grant.

6. Where the government grants land bordering upon a navigable stream, that is, a fresh-water stream not affected by the ebb and flow of the tide, and there is nothing in the grant or in the acts of the government which indicates an intention upon the part of the government to make any reservation or limit the grant to the water's edge, the grantee takes to the middle of the main channel of such stream.

7. In this state the doctrine is announced and adopted, that a riparian owner upon the streams of this state, both navigable and non-navigable, takes to the thread of the stream, subject, however, to an easement for the use of the public.

8. Sec. 2476, U.S. Rev. Stat., provides: "All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both." Under this section the waters of navigable rivers within the territory specified are declared to be public highways; but said section does not reserve the bed of the stream, but does declare that when the opposite banks of any stream, not navigable, belong to different persons, the stream and the bed thereof shall become common to both.

9. This act of Congress means that navigable streams, within the territory to be disposed of, shall be deemed to be and remain public highways, subject to the public easement; that the public should enjoy its free and uninterrupted navigation, unobstructed by dams, bridges, or other structures which might impede its commerce; the intention of Congress being to reserve the use of the rivers for the public without interference with the riparian owner, and the latter to have his right to the bed of the stream without interference with the jus publicum.

10. In this state all streams which are capable of being used for the purpose of carrying boats, passengers, freight, floating logs, timber, wood, or any other product, to market, are recognized and declared to be navigable streams, the beds of which remain in the riparian owner subject to a public easement.

11. The fact that navigable rivers are reserved as public highways in no way interferes with the legal doctrine that the riparian owner takes to the thread of the stream.

12. The public have an easement in, and the right to use, the navigable streams of this state, but in so doing, must have due consideration and reasonable care for the rights of the riparian owner, whose right to use a stream implies the necessity as well as the right to pass to and from such stream.

(Syllabus by the court.)

APPEAL from the District Court of Fourth Judicial District for Lincoln County. Hon. Alfred Budge, Judge.

Action to quiet title. Judgment for defendants. Reversed.

Judgment reversed and a new trial ordered. Costs awarded to appellant.

E. M. Wolfe, for Appellant.

If the land that the defendants claim is in excess of the acreage mentioned in our patent, that fact alone does not prevent it passing under the patent. (Johnson v. Hurst, 10 Idaho 308, 77 P. 784.) The government does not contemplate surveying every little piece of sandbar or island along meandering streams, but does intend to convey the land on each side of the stream to the center thereof. (Ingraham v. Wilkinson, 4 Pick. (Mass.) 268, 16 Am. Dec. 342, and cases cited.)

All islands on the banks of rivers pass to the owner of lots abutting on the river at that point. (Whitaker v. McBride, 197 U.S. 510, 25 S.Ct. 530, 49 L.Ed. 857; Stoneroad v. Stoneroad, 158 U.S. 240, 15 S.Ct. 822, 39 L.Ed. 966.)

The Snake river in Idaho is a non-navigable stream, according to the common law, and the court should take judicial notice of that fact. (People v. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Rep. 183, 48 P. 374, 39 L. R. A. 581; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428.)

If the Snake river is a non-navigable stream the patent conveyed the land on each side to the thread or middle of the stream. (Grand Rapids & Ind. R. Co. v. Butler, 159 U.S. 95, 15 S.Ct. 991, 40 L.Ed. 85; Luce v. Carley, 24 Wend. (N. Y.) 451, 35 Am. Dec. 637.)

Under the statutes of our state, sec. 2934, Rev. Stat., a transfer of land bordering on a highway passes the title of the soil to the center thereof. If the Snake river is navigable, it is a highway, and the land under the above section would belong to the grantee, to the center of the stream.

Sullivan & Sullivan, for Respondents.

The rule is well established that the water line and not the meander line is the true boundary. (Johnson v. Hurst, 10 Idaho 308, 318, 77 P. 784; County of St. Clair v. Lovington, 90 U.S. 46, 23 L.Ed. 59.)

In the Johnson-Hurst case this court held plaintiff took to the "stream." The proof shows that the perpendicular bank and water line are at the same place--in other words, that the bank is a bluff or rim-rock and the water line comes up to its base. We have proved beyond any doubt where the stream is, by proving both the north bank and the north water line, and that Weatherby Island is south of the north line of the stream. When there exists a difference between the meander line as run and the actual margin of the stream, the water is the true boundary. (Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68.)

This court has virtually decided that Snake river in the vicinity in question (within one township) is a navigable stream. (Johnson v. Hurst, 10 Idaho 323, 77 P. 784.) It appears to us that the court in that decision took judicial notice of the fact that Snake river in that vicinity was a navigable stream. If not, why was Johnson given title to the stream only? If this court had taken judicial notice that it was a non-navigable stream, it would have given him to the center thereof.

All the cases cited by plaintiff are where lands border on non-navigable streams, and are, therefore, not in point in this action. An equal number of authorities might be cited which hold that where land borders on a navigable stream, one will take to the stream or water line only.

STEWART, J. Ailshie, C. J., concurs. Sullivan, J., dissents.

OPINION

STEWART, J.

This is an action to quiet title to lot 6 in sec. 6, in township 8 south, of range 14 east, and lots 6 and 7 in sec. 1, township 8 south, of range 13 east, Boise meridian, in Lincoln county. The real controversy, however, involves lots 6 and 7 in sec. 1, township 8 south, of range 13 east. The plaintiff alleges title in fee; that one William McCandless obtained title to said property by patent and conveyed the same to this plaintiff by a warranty deed; that the defendants claim some interest or estate in said property, but that such claim is without any right whatever. The complaint alleges, also, that the defendants have entered upon a part of said land and planted a crop, and have dug up ditches and ruined and destroyed plaintiff's fences, and will continue to do so unless restrained by the court. The plaintiff asks judgment requiring the defendants to set forth the nature of their title, and that the court declare the plaintiff to be the owner of said premises, and that the defendants have no interest therein.

The defendants answered and denied that they claim any estate in said property, unless such premises include an unsurveyed island known as Weatherby Island, situated in Snake river in sec. 1, township 8 south, range 13 east, Lincoln...