Mesenbrink v. Hosterman
| Decision Date | 29 May 2009 |
| Docket Number | No. 34714-2007.,34714-2007. |
| Parties | Herman MESENBRINK and Carol Mesenbrink, husband and wife, Plaintiffs-Respondents, v. Larry D. HOSTERMAN and Sachiko Hosterman, husband and wife; Deon Hubbard and Louise Hubbard, husband and wife, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Scott W. Reed, Coeur d'Alene, for appellants.
Featherston Law Firm, Chtd., Sandpoint, for respondents. Brent C. Featherston argued.
This is an appeal from a judgment determining the portion of lakeshore owned by a littoral landowner on a nonnavigable lake. Because the parties and the district court applied the law applicable to navigable lakes, we vacate the judgment and remand this case for further proceedings consistent with the law applicable to nonnavigable lakes as set forth in this opinion. We decline to award the respondents attorney fees on appeal.
Herman Lake is a 30-acre, nonnavigable lake that is oblong in shape and runs generally on a northeast-southwest diagonal. Herman and Carol Mesenbrink own Lot 1 in Section 28, Township 62 North, Range 3 East, Boise Meridian. They contend that when Idaho became a state in 1890, the property they own abutted the northwest end of Herman Lake. Larry and Sachiko Hosterman own the southern portion of Lot 2 in Section 27 which abuts the northern end of the Lake. Deon and Louise Hubbard own Lots 6, 7, 8, and 9 in Section 27 which abut the remainder of the Lake.
On May 11, 2004, the Mesenbrinks (Plaintiffs)1 filed this action against the State of Idaho Department of Lands, the Hostermans, and the Hubbards. The Plaintiffs sought a determination that Lot 1 abutted a portion of the ordinary high water mark of Herman Lake in 1890 when Idaho became a State; that the water level in the Lake had been lowered since then; and that they own the land between their property and the current ordinary high water mark of the Lake.
The Hostermans and the Hubbards (Defendants) answered and filed a counterclaim. In response to this lawsuit, the State Board of Land Commissioners determined that Herman Lake was not navigable on July 3, 1890, when Idaho became a State, and therefore the State did not have title to the bed of the Lake. The Department of Lands filed an answer disclaiming any interest in the bed of Herman Lake on the ground that it was not navigable at the time Idaho became a state and therefore the State did not own the lake bed below the ordinary high water mark. On October 23, 2006, the Plaintiffs and the Department of Lands stipulated that the action against the Department of Lands be dismissed with prejudice on the ground that the Department had disclaimed any interest in the bed of the Lake. On October 25, 2006, an order was entered dismissing this action with prejudice against the Department of Lands.
The case was tried to the district court, and it issued its memorandum decision on March 8, 2007. It made a finding as to the ordinary high water mark of Herman Lake when Idaho became a state. Based upon that finding, the parties stipulated that the court could enter a judgment granting the Plaintiffs specifically defined property down to the current ordinary high water mark of Herman Lake based upon the theory of reliction. The stipulation also provided that the Defendants retained their right to appeal. On September 21, 2007, the court entered a judgment in conformity with the parties' stipulation, and the Defendants timely appealed.
1. Is the district court's finding as to the ordinary high water mark of Herman Lake when Idaho became a state supported by substantial and competent evidence?
2. Are the Plaintiffs entitled to an award of attorney fees on appeal?
We have previously addressed the rights of riparian and littoral landowners on navigable waters. "Under Idaho law, `a riparian owner (on a navigable river or stream) or a littoral owner (on a navigable lake) takes title down to the natural high water mark.'" In re Sanders Beach, 143 Idaho 443, 453, 147 P.3d 75, 85 (2006) (quoting West v. Smith, 95 Idaho 550, 554, 511 P.2d 1326, 1330 (1973)). "We have held that the owner of property riparian or littoral to navigable water has the right to access such water at all points along the landowner's waterfront, and the owner may enjoin persons obstructing such access." Sanders Beach, 143 Idaho at 453, 147 P.3d at 85.
We have also addressed the right of the public to the use of navigable waters. Idaho Forest Indus., Inc. v. Hayden Lake Watershed Improvement Dist., 112 Idaho 512, 516, 733 P.2d 733, 737 (1987) (citation omitted). That title is subject to a public trust which "preserves the public's right of use in such land and, as a result, restricts the state's ability to alienate any of its public trust land." Id. "The State of Idaho holds title to the beds of all navigable bodies of water below the natural high water mark for the use and benefit of the public." Kootenai Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc., 105 Idaho 622, 625, 671 P.2d 1085, 1088 (1983). This public use and benefit includes navigation, fish and wildlife habitat, recreation, aesthetic beauty, and water quality. Idaho Forest Industries, 112 Idaho at 516, 733 P.2d at 737.
The issues presented in the instant case were tried by the parties and decided by the district court based upon the law applicable to navigable waters. However, on October 25, 2006, an order was entered dismissing this action against the State, and that has become a final judgment. That order was based upon the State's contention that Herman Lake was not navigable when Idaho was admitted to the Union. Therefore, for the purposes of this litigation, the Lake is nonnavigable. The rights of the riparian and littoral landowners on nonnavigable waters differ from those on navigable waters. The parties have not addressed the rights of littoral landowners on a nonnavigable lake.
Although the title to the beds of navigable rivers and lakes passed to the State of Idaho upon its admission to the union, the federal government retained title to the beds of nonnavigable waters. As explained by the United States Supreme Court in United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 615, 79 L.Ed. 1267, 74 (1935) (citation omitted; emphasis added):
Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself. For that reason, upon the admission of a state to the Union, the title of the United States to lands underlying navigable waters within the state passes to it, as incident to the transfer to the state of local sovereignty, and is subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. But if the waters are not navigable in fact, the title of the United States to land underlying them remains unaffected by the creation of the new state.
Id. at 27-28, 55 S.Ct. at 621, 79 L.Ed. at 1281. "[T]he disposition of such lands [the beds of nonnavigable waters] is a matter of the intention of the grantor, the United States." Id. at 27, 55 S.Ct. at 621, 79 L.Ed. at 1280. "[I]f its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies." Id. (quoting State of Oklahoma v. Texas, 258 U.S. 574, 595, 42 S.Ct. 406, 414, 66 L.Ed. 771, 780 (1922)). "In construing a conveyance by the United States of land within a state, the settled and reasonable rule of construction of the state affords an obvious guide in determining what impliedly passes to the grantee as an incident to land expressly granted." Id. at 28, 55 S.Ct. at 621, 79 L.Ed. at 1281.
In Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428 (1891), the Supreme Court addressed the issue of whether the grantee of land riparian to a nonnavigable lake took title to the edge of the water or to the center of the lake. The grantee's patent to a fractional lot recited that the land conveyed was according to the official plat. The plat showed a meander line on that portion of the fractional lot next to the lake. In analyzing the case, the Supreme Court first held that the meander line was not intended to constitute the real boundary. Id. at 380-81, 11 S.Ct. at 811, 35 L.Ed. at 432-33. It then held that if the federal government has not reserved any right or interest that might pass with a grant, or done anything showing an intention of reservation, the grant will be construed to have conveyed all that might pass with it. Id. at 383, 11 S.Ct. at 812, 35 L.Ed. at 433-34. Finally, it held, "In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie." Id. at 384, 11 S.Ct. at 813, 35 L.Ed. at 434.
The Hardin case involved land situated in the State of Illinois. The Supreme Court determined that Illinois applied the common law with respect to land titles, the construction of deeds and grants, and the rights of riparian owners. Id. at 385-86, 11 S.Ct. at 813, 35 L.Ed....
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