Miller v. Mendenhall

• Decision Date: 03 April 1890
• Citation: 44 N.W. 1141,43 Minn. 95
• Parties: Andreas M. Miller v. Luther Mendenhall
• Court: Minnesota Supreme Court

44 N.W. 1141

43 Minn. 95

Andreas M. Miller v. Luther Mendenhall

Supreme Court of Minnesota

April 3, 1890

Appeal by plaintiff from an order of the district court for St Louis county, Ensign, J., presiding, sustaining a demurrer to the complaint. The substance of the complaint is stated in the opinion. The prayer for relief is (1) that the conveyance from the Duluth Improvement Co. to defendant be decreed to be invalid; (2) that the cloud cast by that conveyance on plaintiff's title to the westerly half of block 27 be removed, and (3) for general relief.

Order affirmed.

Mahon & Howard, for appellant.

Walter Ayers, for respondent.

OPINION

Vanderburgh, J.

This case involves the consideration of the riparian rights of the owners of lands abutting upon the Duluth harbor or Bay of Superior, in the shoals or land covered by water between low-water mark and the deep or navigable waters, and within the dock or harbor line established by the authority of the legislature. These waters are within the jurisdiction of the state and federal governments, and the state holds the title to low-water mark in its sovereign capacity, in trust for the people, for the purpose chiefly of protecting the rights of navigation. But, though the title is nominally in the state the common right of the people is limited to what is of public use for the purposes of navigation and fishery; and the riparian owners are permitted to enjoy the remaining rights and privileges in the soil under water beyond their strict boundary lines, after conceding to the state all the public rights. Gould, Waters, § 168. The right of access and communication with the navigable waters which pertain peculiarly to the ownership of the upland, in order to be available and of practicable use, necessarily includes the right to fill in and to build wharves and other structures in the shallow water in front of such land, and below low-water mark, and the exercise of such rights, though subject to state regulation, can only be interfered with for public purposes; and such improvements are encouraged because they are in the general interest of navigation and commerce and are a public as well as a private benefit. In Dutton v. Strong, 66 U.S. 23, 1 Black 23, 32, 17 L.Ed. 29, it is said that, "wherever the water is too shoal to be navigable, there is the same necessity for such erections for lake navigation as in the bays and arms of the sea; and where that necessity exists, it is difficult to see any reason for denying to the adjacent owner the right to supply it." And in Yates v. Milwaukee, 77 U.S. 497, 10 Wall. 497, 19 L.Ed. 984, it is held broadly that these riparian privileges are to be treated as valuable property rights, which cannot be taken or interfered with for public use without compensation. Union Depot, etc., Co. v. Brunswick, 31 Minn. 297, (17 N.W. 626.) And if a stranger makes a filling or an obstruction in the waters in front of his land, the owner of the adjacent upland may enjoin its continuance, or recover in trespass, if not in ejectment.

In the case before us the complaint shows that a corporation known as the "Duluth Improvement Company" was the owner of a large tract of land bordering upon the waters of Duluth harbor, which communicates with Lake Superior, and is navigable for large boats and vessels. In front of this land, and for a considerable distance into the bay, the water is shallow and not navigable; and, in pursuance of legislative authority, a dock or harbor line had been duly established by the city of Duluth, extending in front of, and at a distance of a thousand feet or more from, the low-water mark on the tract of land referred to. Thereafter the Improvement Company caused this land, together with the land in front thereof under water, out to the dock line, to be surveyed and platted into lots and blocks, piers, slips, avenues, and streets, and caused a plat thereof to be duly made and recorded, under the name of the "Bay Front Division of Duluth," and thereafter proceeded to convey divers lots and parcels of the platted land, as well land under water as the dry land, to divers persons, by reference to the recorded plat, and by conveyances of the form set out in the complaint, and containing special covenants and stipulations, as hereinafter mentioned.

The complaint further proceeds as follows: "That on or about the 27th day of June, 1887, the said Duluth Improvement Company sold and conveyed to Luther Mendenhall, defendant herein, by deed duly executed, a copy whereof is hereto annexed and made a part of this complaint, the following described tract or parcel of land, the same being a part of the land hereinabove referred to, to wit: All that part of block twenty-seven (27) in the Bay Front Division of Duluth, first rearrangement, according to the recorded plat thereof, that lies easterly of a line through said block, parallel with and at equal distances from the lines dividing said block from block twenty-six (26) and from block twenty-eight, (28,) in said division. That said Duluth Improvement Company, on or about the 30th day of July, 1887, sold and conveyed to plaintiff, by deed duly executed, and identical in form with and containing the same covenants as the deed to Luther Mendenhall, hereinabove referred to, the following described tract or parcel of land, being a part of the land hereinabove referred to, to wit: All that part of block twenty-seven (27) in the Bay Front Division of Duluth, first rearrangement, according to the recorded plat thereof, that lies westerly of a line through said block parallel with and at equal distance from the lines dividing said block from block twenty-six (26) and from block twenty-eight, (28,) in said division, saving and excepting so much of said tract as lies within one hundred (100) feet of the south-easterly boundary line thereof, which said property so excepted is hereby dedicated for the perpetual use of a slip or water-way for the use and benefit of the owners and occupants of property abutting thereon. Plaintiff further alleges that the greater part of said block 27, so as aforesaid conveyed to plaintiff by the Duluth Improvement Company, consisted of dry land and shore, and that the same extended to the low-water mark on said bay. That all of that part of said block 27, so as aforesaid conveyed to Luther Mendenhall by said Duluth Improvement Company, lies under the water of the bay, beyond the low-water mark of said bay, and in front of and between that part of said block 27 so as aforesaid conveyed to plaintiff, and said established dock or wharf line upon said Duluth harbor. That the said Luther Mendenhall claims title to the part of said block 27 so as aforesaid conveyed to him by the Duluth Improvement Co. under and by virtue of said deed of conveyance to him, and claims the right to cut off and exclude plaintiff from access to the navigable waters of said bay over and across his part of that block, and denies the right of the plaintiff to dock out or make improvements in front of his part of the block to the established dock line, and claims and asserts that all the riparian rights to which plaintiff would be entitled, as owner of the shore along said harbor, are absolutely cut off and limited by the conveyance so as aforesaid made to him, said Mendenhall, as also by the conveyance made to the plaintiff."

Following the descriptions in the deeds to these parties, and to other grantees of the platted lands above referred to, we find the following clauses, covenants, and stipulations, viz "Together with all the hereditaments thereunto belonging, or in any wise appertaining, but subject, nevertheless, to the reservations, exceptions, and conditions of this instrument. And the said party of the first part, for itself, its successors and assigns, does covenant with the said party of the second part, his heirs and assigns, that it has not made, done, executed, or suffered any act or thing whatsoever, whereby the above-described premises, or any part thereof, now are, or at any time hereafter shall or may become, imperilled, charged, or incumbered in any manner whatsoever; and the title to the above-granted premises, against all persons lawfully...