Nelson v. De Long

• Decision Date: 18 December 1942
• Docket Number: No. 33266.,33266.
• Citation: Nelson v. De Long, 213 Minn. 425, 7 N.W.2d 342 (Minn. 1942)
• Parties: NELSON v. DE LONG.
• Court: Minnesota Supreme Court

7 N.W.2d 342

213 Minn. 425

NELSON v. DE LONG.

No. 33266.

Supreme Court of Minnesota.

December 18, 1942.

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by Arthur T. Nelson against Byron J. De Long for relief against acts done by defendant as Mayor of the Village of Deephaven in alleged violation of plaintiff's riparian rights in and to the shore and adjacent waters of a navigable lake. Findings for defendant, and plaintiff appeals from an order denying his motion for a new trial.

Affirmed.

Arthur T. Nelson, of Minneapolis, in pro. per.

Joseph C. Vesely, of Hopkins, for respondent.

PETERSON, Justice.

In this action plaintiff seeks numerous kinds of relief against defendant for acts done by him as mayor of the village of Deephaven alleged to be violations of plaintiff's riparian rights in and to the shore and adjacent waters of St. Louis Bay of Lake Minnetonka, a navigable body of water in Hennepin county. Plaintiff claims that the village by requiring the acts to be done and the defendant by doing them pursuant to such requirement were joint wrongdoers, and that consequently this action may be maintained against him separately without joining the village as a party defendant. Below the decision was against plaintiff, and he appeals.

Because the record is sketchy and in many respects inadequate for lack of explicit statement and of plats to explain the evidence, we have had considerable difficulty in understanding the evidence. Consequently, we have considerable misgiving as to the entire accuracy of our statement of the facts.

Plaintiff is the owner of 11 lots in platted areas, one of which is known as Deephaven Park and the other as Deephaven Park, Subdivision No. Three (3). The lots are located several blocks from the shore line of the lake. Plaintiff claims the riparian rights in question as appurtenant to his land under certain deeds of conveyance.

One Gibson was the original owner of a large tract of land, including that here involved, on the east shore of St. Louis Bay. On July 22, 1887, he conveyed to a railroad company a right of way across the land. The deed contained a reservation, subject to certain provisions not here material, "for the construction, maintenance and enjoyment of private docks, platforms and boat landings and for access thereto and egress therefrom of persons on foot, the use of the shore of Lake Minnetonka and of the land covered with water adjacent thereto, outside of or in front of the land hereby conveyed."

Apparently the railroad right of way ran parallel to but was not at all points adjacent to the lake shore. Subsequently Gibson conveyed to plaintiff's predecessor in title the remainder of the tract. Later the owner platted the portion lying east of the part conveyed for a railroad right of way. There are some 520 lots and 200 owners. There are streets extending to the lake, but none of the lots in the platted area abut on the lake shore. When the lots were sold and resold, each deed of conveyance contained a provision that the conveyance included the use and enjoyment on equal terms with other vendees of the grantor of the riparian rights and privileges extending from the boathouse of the Deephaven Park Land Company at Lake street to the docks of the Minneapolis & St. Paul Suburban Railway Company as the same were held by the grantor under the Gibson deed of July 22, 1887, to the railroad company. All deeds recited that "the foregoing covenant, warranty and restriction shall run with the land." There are about 373.7 feet of shore line between the points mentioned.

In 1932 the village by condemnation proceedings acquired for park purposes title to the part of the shore land formerly owned by Gibson which lay between the platted area and the lake. The land thus taken included all the shore line of 373.7 feet in and to which the riparian rights pertained and the land conveyed by Gibson to the railroad for a right of way. The taking was, however, by its terms subject to the rights of all owners of real property of the village of Deephaven conveyed to them by deed to the use and enjoyment of the riparian rights and privileges on St. Louis Bay within the area referred to. Later the railroad quitclaimed its right of way to the village.

Enough appears from the record as supplemented by the oral explanations made on the argument to show that, because a large number of persons use the beach and adjacent waters for purposes of boating and bathing, regulation of some kind was necessary. A voluntary association, known as the Deephaven Park Improvement Association, presumably composed of interested lot owners, undertook to regulate the use of the waters in question. It provided boat docks, for which it charged two dollars per boat for a season. In 1936 plaintiff paid the fee and was assigned boat slip No. 19 for the season.

Later it appears that the village undertook to regulate the use of the shores of the park and the waters adjacent thereto. A Mr. Johnson apparently had a right to maintain a boathouse on 10.7 feet of the shore line. The village set aside 159 feet southerly from Lake street to the Johnson boathouse for a public boat dock and 135 feet southerly of the Johnson boathouse for a bathing beach. No regulations were adopted for the 69 feet southerly of the bathing beach. The lands mentioned included all those in which plaintiff claimed riparian rights under his deeds.

Upon the 159 feet allocated for the purpose, the village constructed a boat landing or dock divided into 30 spaces or slips for docking and storing boats. Insofar as appears, the only watercraft using the waters in question were pleasure boats. During the 1939 season permits were issued for the use of 28 of the 30 slips. Apparently the dock furnished facilities adequate for the demand there existing.

On June 13, 1939, the village passed an ordinance prohibiting the construction or erection of any wharf, boathouse, or other structure for the purpose of docking boats or other watercraft upon any part of the shore lands owned or controlled by it. The ordinance also prohibited the parking or placing of any boat or watercraft, except at the dock owned and maintained by the village, for which a permit costing two dollars per boat for a season was required, in, upon, or adjacent to the park in question or any other lands owned by it.

Defendant as mayor of the village caused the ordinance and other regulations, the precise nature of which are not made to appear, to be enforced. He collected the fees for dock permits, which he turned over to the village treasurer. At his instance, the village marshal prevented plaintiff from docking his boat at the village boat dock because plaintiff failed to obtain the necessary permit to use the dock. The 135 feet of bathing beach was roped off and boats were excluded from that area. It is these acts of defendant which plaintiff claims constitute an interference with his riparian rights.

The village is governed by L. 1885, c. 145, which so far as here material in § 21 thereof provides that the village council shall have the power to enact, amend, and repeal ordinances as its members shall deem expedient for the purposes:

"Eighth—To control and protect the public buildings, property and records. * * *

"Eleventh—To lay out, open, change, widen or extend * * * parks * * * and to * * * improve, keep in repairs, * * * or discontinue [the same]. * * *

"Twenty-sixth—To establish harbor and dock limits, and to regulate the location and construction and use of all piers, docks, wharves and boat-houses on any navigable waters, and fix rates of wharfage. * * *

"Twenty-eighth—To ordain and establish all such ordinances and by-laws for the government and good order of the village, the suppression of vice and immorality, the prevention of crime, the protection of public and private property, the benefit of trade and commerce, and the promotion of health, not inconsistent with the constitution and laws of the United States or of this state, as they shall deem expedient."

For purposes of decision, we shall assume that plaintiff has riparian rights under the deeds as claimed by him. In this connection we shall assume, as we have repeatedly held, that rights in the shore line and submerged lands along the lake shore may be separated and dissociated from littoral or riparian lands and transferred to and enjoyed by persons having no interest in the original riparian estate. See Bradshaw v. Duluth Imperial Mill Co., 52 Minn. 59, 53 N.W. 1066; Gilbert v. Eldridge, 47 Minn. 210, 49 N.W. 679, 13 L. R.A. 411; Miller v. Mendenhall, 43 Minn. 95, 44 N.W. 1141, 8 L.R.A. 89, 19 Am.St. Rep. 219; Hanford v. St. Paul & Duluth R. Co., 43 Minn. 104, 42 N.W. 596, 44 N.W. 1144 7 L.R.A. 722 (on reargument). We shall assume also, without deciding, the question that plaintiff may maintain this action separately against defendant for acts done by him as mayor of the village.

1. Navigability and nonnavigability mark the distinction between public and private waters. The state, in its sovereign capacity, as trustee for the people, holds all navigable waters and the lands under them for public use. Public use comprehends not only navigation by watercraft for commercial purposes, but the use also for the ordinary purposes of life such as boating, fowling, skating, bathing, taking water for domestic or agricultural purposes, and cutting ice. Sanborn v. People's Ice Co., 82 Minn. 43, 84 N.W. 641, 51 L.R.A. 829, 83 Am.St.Rep. 401; Lamprey v. State, 52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 670, 38 Am.St.Rep. 541; Doemel v. Jantz, 180 Wis. 225, 193 N.W. 393, 31 A.L. R. 969; 45 C.J., Navigable Waters, p. 490, § 141. Cf. In re Petition of Krebs, Minn., 6 N.W. 803, filed December 4, 1942.

A riparian owner's rights are qualified, restricted, and subordinate to the paramount rights of the public. As against the state, a riparian owner can exercise no dominion or make a valid grant...