Karterud v. Karterud

• Decision Date: 15 November 1923
• Docket Number: 5366.
• Parties: KARTERUD v. KARTERUD.
• Court: South Dakota Supreme Court

195 N.W. 972

47 S.D. 58

KARTERUD v. KARTERUD.

No. 5366.

Supreme Court of South Dakota

November 15, 1923

Appeal from Circuit Court, Hamlin County; J. H. Bottum, Judge.

Action by Godthard G. Karterud against Dagmar Karterud. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

M. J Russell, for Watertown, for appellant.

GATES J.

This controversy is about the respective rights of the owners of lot 7 and lot 8, as shown by the following plat, to the land between the meander lines of said lots and the water line of Lake Marsh.

Lot 8 is the eastern portion of what would be the south half of the southeast quarter of section 20, but for the lake. The dotted line S, T, would mark a portion of the western boundary of said "eighty" except for the lake. By the United States Government survey the lakes now known as Lake Park and Lake Marsh were surveyed as one lake. The lines A, B, C, D E, F, G, H, I, K, are the meander lines on a portion of the east side of such survey. The lines L, M, N, O, P, Q, R, are the meander lines on a portion of the west side of such survey. The irregular line O, D, indicates the present water line on the south side of Lake Park. The irregular line Q, T G, indicates the present water line on the north side of Lake Marsh. Plaintiff owns lot 8. Defendant owns lot 7. Plaintiff asserts ownership of all that part of what would have been the south half of the southeast quarter of section 20, but for the lake, that is not under water; that defendant is not a riparian owner of any portion of Lake Marsh, and that defendant has no right to any land south of the dotted line S, E. Defendant

(Image Omitted) contends that the rights of plaintiff are confined to the portion of the land lying between lines drawn from points E and I to the center of Lake Marsh. It is conceded that both lakes are navigable within the definition announced in Flisrand v. Madson, 35 S.D. 457, 152 N.W. 796. The trial court found in accordance with defendant's contention, established the rights of the parties in accordance with the principles enunciated in Flisrand v. Madson, supra, Anderson v. Ray, 37 S.D. 17, 156 N.W. 591, and State ex rel. Clark v. Deisch, 38 S.D. 560, 162 N.W. 365, and fixed a line from E southwesterly 6,579 feet to the center of Lake Marsh as the boundary line defining the rights of plaintiff and defendant to the land between the water line and the meander lines of lots 7 and 8, leaving the parties to agree upon the exact location of the line, or in default of such agreement providing for a referee to establish the line. Plaintiff appeals from the judgment and order denying new trial.

In Flisrand v. Madson, supra, we said:

"A meandered line is not considered a boundary line, but merely serves to define the sinuosities of the bank of the lake, and a means of ascertaining the amount of land in the fractional tract subject to sale, and which is to be paid for by the purchaser. St. Paul Ry. Co. v. Schurmeier, 7 Wall. 272, 19 L.Ed. 74, and note page 972."

But unquestionably, by reason of that portion of the meander line between D and E, lot 7 became riparian to Lake Marsh. Schlosser v. Cruickshank, 96 Iowa, 418, 65 N.W. 344. In that case the court said:

"As a meander line is not a boundary line, the owner of land adjoining such meander line takes title to the high-water mark of the stream or body of water, if navigable, lying adjacent thereto."

The same theory contended for by appellant in this case was advanced in the case of Hanson v. Rice, 88 Minn 273, 92 N.W. 982, but was decisively exploded. It was therein held that land between the meander line and the water's edge...