Lamprey v. Danz
| Decision Date | 29 May 1902 |
| Citation | 90 N.W. 578,86 Minn. 317 |
| Parties | LAMPREY v. DANZ. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Ramsey county; George L. Bunn, Judge.
Action by Uri L. Lamprey against Jacob Danz, 2d. Findings for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.
1. The United States surveyed, selected, and by its patent conveyed to the state of Minnesota as swamp and overflowed land, the real estate here in controversy, without meandering any of the waters thereon. The plaintiff has acquired the title of the state thereto. In fact the land is covered by the waters of a lake, which it is impossible to use for the purpose of travel or commerce, or for pleasure, other than hunting. Held, that such acts of the United States are conclusive as to the character and title of such land, and that the plaintiff is the absolute owner thereof, and that the public have no right to fowl on the waters thereon.
2. The facts found by the trial court justify its conclusion of law to the effect that the defendant be restrained from shooting on or over the plaintiff's land, or any of the waters thereof. C. D. & Thomas D. O'Brien, for appellant.
Uri L. Lamprey, in pro. per.
Action to enjoin the defendant from shooting ducks or any other game on or over the land of the plaintiff. The trial court made findings of fact in favor of the plaintiff, and, as a conclusion of law, directed judgment in his favor substantially as prayed in his complaint. The defendant appealed from an order denying his motion for a new trial. The facts found by the trial court are substantially these: The plaintiff is, and has been during all the time stated in his complaint, the owner in fee and in possession of the following described lands: All of section 13, and the S. 1/2 of the N. E. 1/4 and the N. 1/2 of the S. E. 1/4 and the S. E. 1/4 of the S. E. 1/4 and the N. E. 1/4 of the S. W. 1/4 and the W. 1/2 of the S. W. 1/4 of section 14, all in township 32 N., of range 22 W., and situate in Anoka county, and the N. W. 1/4 and lot 5 and the S. W. 1/4 of the S. W. 1/4 of section 18, and the N. W. 1/4 of the N. W. 1/4 of section 19, all in township 32 N., of range 21 W., and situate in Washington county. The defendant is the lessee and in possession of the E. 1/2 of the N. W. 1/4 of section 14. Upon the northeasterly half of section 13 is a lake of about 300 acres in area, known as ‘Mud Lake.’ There is also a body of water covering substantially all of the S. W. 1/4 and part of the S. 1/2 of the N. W. 1/4 of section 13; also the N. 1/2 of the S. E. 1/4, the S. 1/2 of the N. E. 1/4, and the bulk of the N. 1/2 of the S. W. 1/4 of section 14, a strip of the northerly portion of the S. 1/2 of the S. W. and S. E. 1/4's, and a triangular piece in the S. E. corner of the N. W. 1/4 of section 14. This triangular piece of land so covered by a portion of the lake is a part of the lands leased by and in possession of defendant, and is about six acres in area. The last described body of water is known as ‘Howard Lake.’ All of these lands, including the land covered by Howard Lake, were surveyed by the United States in the year 1848. Howard Lake was not meandered in such survey, nor has it ever been, but the whole thereof was surveyed as land. Plaintiff acquired the title to that portion of the lands situate in section 13 in the year 1881. The lands in section 14 were prior to 1871 selected by the United States as ‘swamp and overflowed lands' that inured to the state of Minnesota under the act of congress approved September 28, 1850, and on May 13, 1871, it executed to the state of Minnesota its patent therefor. The state of Minnesota, pursuant to legislative authority, by deed dated January 26, 1869, conveyed the lands to the Lake Superior & Mississippi Railroad Company. The plaintiff's title to the 200 acres above described is derived through mesne conveyances from the railroad company. The land is, with the exception of two small portions thereof, wholly covered by the waters of Howard Lake, which is, and has long been, a body of water of about 500 acres in area, and has a depth of from 2 to 8 feet. Its shores are for the most part marshy, and during the summer and fall of each year it is more or less filled with, and covered by, a growth of wild rice. There is no access to it, except over the lands of plaintiff, defendant, or one Arth, who owns land upon the shore of the lake on the southwest part thereof. This lake has for many years been used for hunting and shooting ducks, formerly by any one who wished, but for several years past only by plaintiff, defendant, Arth, and their friends. There is not, and has never been, fish in said lake in numbers or kind to attract the fishing public who were in search of food or pleasure. It is, and always has been, possible to row, paddle, or pole small boats on the lake; but owing to the character of its shores and bottom, and the heavy growth of rice therein, it is impracticable, if not impossible, for the public to use the lake for the purposes of boating, sailing, bathing, or skating, and it has never been so used by the public. It can, however, be used for the purposes of hunting wild ducks, and has been so used by the public; but it is impossible to use it for purposes of travel or commerce, or for pleasure, other than that of hunting. Wild ducks are in the habit, in the proper season of each year, of congregating in large numbers upon the waters of Howard Lake, and, when unmolested, make the waters of said lake their resting, feeding, breeding, and roosting place. Between Howard Lake and Mud Lake, and upon plaintiff's premises, is a narrow tract of land, commonly known as a ‘duck pass,’ over which wild ducks fly from one of the lakes to the other in great numbers, and, in so doing, furnish good shooting and sport to hunters on the pass. Plaintiff has erected and maintains on this duck pass places of concealment, from which hunters shoot or shoot at the ducks in their passage over the pass. He has also erected and maintains suitable buildings on his land in the vicinity of the pass, for the purpose of securing to himself and to his friends, upon his invitation, the pleasure and profit of such pass shooting; and the chief value thereof, and of the land belonging to plaintiff, consists in such hunting and shooting opportunities. The plaintiff does not, nor do his friends, hunt, pursue, or shoot at ducks on his premises, except on the pass; nor do they go on the lakes, or either of them, in boats, or otherwise. The pursuit of ducks on the waters of the lakes in boats or cannoes, and the shooting thereof in such waters, and the shooting of loaded firearms on the waters or over them so that shot falls thereon, causes the ducks on the lakes to be frightened away, and often to leave the lakes, and greatly impairs the shooting thereon, and...
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