Northern Pac. Ry. Co. v. Hirzel

• Decision Date: 09 October 1916
• Citation: 161 P. 854,29 Idaho 438
• Parties: NORTHERN PACIFIC RAILWAY COMPANY, Appellant, v. D. C. HIRZEL and JANE DOE HIRZEL, THE CITY OF LEWISTON et al., Respondents, And NORTHERN PACIFIC RAILWAY COMPANY, Appellant, v. CASPER NEUKAM, THE CITY OF LEWISTON et al., Respondents
• Court: Idaho Supreme Court

161 P. 854

29 Idaho 438

NORTHERN PACIFIC RAILWAY COMPANY, Appellant, v. D. C. HIRZEL and JANE DOE HIRZEL, THE CITY OF LEWISTON et al., Respondents, And NORTHERN PACIFIC RAILWAY COMPANY, Appellant, v. CASPER NEUKAM, THE CITY OF LEWISTON et al., Respondents

Supreme Court of Idaho

October 9, 1916

On Petitions for Rehearing, Dec. 13, 1916.

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action to quiet title to certain parts of the beds of the Snake and Clearwater rivers bordering on the city of Lewiston. Judgment quieting title in the mayor-trustee for the city. Reversed.

Reversed and remanded, with directions. Costs awarded to appellant.

James E. Babb, for Appellants.

A description running "to the bank" or "along the bank" is sufficient to convey the bank and riparian rights, including the soil to the center of the stream. (5 Cyc. 903; St. Clair Co. v. Lovingston, 23 Wall. 46 23 L.Ed. 59; Luce v. Carley, 24 Wend. (N. Y.) 451 35 Am. Dec. 637; Starr v. Child, 20 Wend. (N. Y.) 149; Johnson v. Johnson, 14 Idaho 561, 575, 95 P 499, 24 L. R. A., N. S., 1240; Moss v. Ramey, 14 Idaho 598, 95 P. 513.)

The fact that the transfers made by the mayor-trustee are of areas of land shown as lots in blocks on a plat, the lots having definite lines surrounding them, does not prevent the titles deeded by the mayor-trustee from carrying to the center of the stream outside of and beyond the lines surrounding the lots. (Wait v. May, 48 Minn. 453, 51 N.W. 471; Hanlon v. Hobson, 24 Colo. 284, 51 P. 433 42 L. R. A. 502; Bissell v. New York Cent. Ry. Co., 23 N.Y. 61; Geddes Coarse Salt Co. v. Niagara, Lockport & Ontario Power Co., 207 N.Y. 500, 101 N.E. 456; City of Dubuque v. Maloney, 9 Iowa 450, 74 Am. Dec. 358; Varick v. Smith, 9 Paige, 547, 5 Paige, 151, 28 Am. Dec. 417; Lincoln v. Wilder, 29 Me. 169; Paine v. Consumers' Forwarding & Storage Co., 71 F. 626, 19 C. C. A. 99; Banks v. Ogden, 2 Wall. 68, 17 L.Ed. 818; Lembeck v. Nye, 47 Ohio St. 336, 24 N.E. 686, 8 L. R. A. 578; Bissell v. New York Cent. R. R. Co., 23 N.Y. 61; Jarstadt v. Morgan, 48 Wis. 248, 4 N.W. 27; Paul v. Carvon, 26 Pa. 223, 67 Am. Dec. 413.)

The city has been misled in its undertaking to find some strips of land along the shore to which the owners have no title, and which it is claimed were not included within certain of the surveys. The rights of the parties interested depend upon the meaning and legal effect of the field-notes of government surveys. (Quicksilver Min. Co. v. Hicks, 4 Sawy. 688, F. Cas. No. 11,508; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 811, 838, 35 L.Ed. 428; Mitchell v. Smale, 140 U.S. 406, 11 S.Ct. 822, 840, 35 L.Ed. 442; Ex parte Davidson, 57 F. 885; Railroad Co. v. Schurmeir, 7 Wall. (74 U.S.) 272, 19 L.Ed. 74; Kirwan v. Murphy, 83 F. 275, 28 C. C. A. 348; Coburn v. San Mateo County, 75 F. 520.)

Chief Justice Sullivan in his dissenting opinion in Johnson v. Johnson, 14 Idaho 561, 597, 95 P. 499, 24 L. R. A., N. S., 1240, expressly approved the doctrine of title to low water instead of to high water mark. That much was held at least and also unanimously in Johnson v. Hurst, 10 Idaho 308, 77 P. 784.

In a state where there are mountain streams which have a large quantity of flood waters at certain seasons of the year and become very low at other seasons of the year, there is a large stretch of land between the high and low water mark, and this question becomes very important. The doctrine limiting to high-water mark would cut the adjacent owner off from all contact with the stream a large portion of the year, and would prevent access and wharfing out and other improvements connecting the bank with the stream, which improvements in a state where the conditions are such as they are in Idaho must extend from high to low water mark. Such rights have been repeatedly declared by unanimous opinion of this court. (Powell v. Springston Lumber Co., 12 Idaho 723, 88 P. 97; Shephard v. Coeur d'Alene Lumber Co., 16 Idaho 293, 101 P. 591; Small v. Harrington, 10 Idaho 499, 79 P. 461; Yates v. City of Milwaukee, 10 Wall. 497, 19 L.Ed. 986; State v. Korrer, 127 Minn. 60, 148 N.W. 617, 1095.)

Even if the bank of the stream were no the north boundary of A street, which, however, there is no evidence to show, or even if it were north of the center of A street, which there is no evidence to show, and even if the stream did not bank on the north line of block 6, plaintiffs' fee title goes not only to the center of the street, but clear through to the center of the stream beyond. (Wait v. May, 48 Minn. 453, 51 N.W. 471; White v. Jefferson, 110 Minn. 276, 124 N.W. 373; 32 L. R. A., N. S., 778; Gifford v. Horton, 54 Wash. 595, 103 P. 988; In re Robbins, 34 Minn. 99, 57 Am. Rep. 40, 24 N.W. 356; Johnson v. Grenell, 112 A.D. 620, 98 N.Y.S. 629; Taylor v. Armstrong, 24 Ark. 102; Empenger v. Fairley (In re Schmeidel's Estate), 119 Minn. 186, 137 N.W. 1110.)

A street bounded by a river on one side extends to the center of the river. (Chicago, R. I. & P. Ry. Co. v. People, 222 Ill. 427, 78 N.E. 790; Village of Brooklyn v. Smith, 104 Ill. 429, 44 Am. Rep. 90; Village of Pewaukee v. Savoy, 103 Wis. 271, 74 Am. St. 859, 79 N.W. 436, 50 L. R. A. 836; Lake Shore & M. S. R. Co. v. Platt, 53 Ohio St. 254, 41 N.E. 243, 29 L. R. A. 52; State v. Yates, 104 Me. 360, 71 A. 1018, 22 L. R. A., N. S., 592; Lockwood v. New York & N.H. R. Co., 37 Conn. 387; Hathaway v. Milwaukee, 132 Wis. 249, 122 Am. St. 975, 111 N.W. 570, 9 L. R. A., N. S., 778; Hanford v. St. Paul & D. Ry. Co., 43 Minn. 104, 42 N.W. 596; Dana v. Craddock, 66 N.H. 593, 32 A. 757; McCloskey v. Pacific Coast Co., 160 F. 794, 87 C. C. A. 568, 22 L. R. A., N. S., 673; Stetson v. City of Bangor, 60 Me. 313.)

It is clear from Shephard v. Coeur d'Alene Lbr. Co., 16 Idaho 293, 101 P. 591, and the case of Chicago, R. I. & P. Ry. Co. v. People, 222 Ill. 427, 78 N.E. 790, that "waterfront" means a place for public use that has been dedicated as such, and that unless so dedicated or lawfully acquired it cannot be imposed upon the property in private ownership.

The plaintiff and its predecessors having been in possession of and operating a railroad on all this land from Snake river bridge on Main street north and east since 1898, and no one else in possession of any part thereof, any claim in the interest of the people of any portion of the public, including the title of the mayor as trustee for the public, is barred by sec. 4035, Rev. Codes. (People v. Banning Co., 167 Cal. 643, 140 P. 587.)

A limitation applicable to the state applies to all lesser political subdivisions. (Bannock County v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710; Canyon County v. Ada County, 5 Idaho 686, 51 P. 748.)

Such a grant as this is within the limits of the trust, in the case of the state title, and of the burdens in favor of the public, in case of private riparian title, subject to which such title is held. (Gould v. Hudson River R. Co., 6 N.Y. 522; Stevens v. Patterson etc. R. R. Co., 34 N. J. 532, 2 Am. Rep. 269; Tomlin v. Dubuque, Bellevue & Miss. R. R. Co., 32 Iowa 106, 7 Am. Rep. 176; Chicago B. & Q. R. R. Co. v. Porter, 72 Iowa 426, 34 N.W. 286.)

The holding as declared in the last case was based upon the doctrine of state ownership of shore lands, announced in McManus v. Carmichael, 3 Iowa 1; Bowlby v. Shively, 22 Ore. 410, 30 P. 154, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331.

The state, as trustee for the public in holding the title to land under navigable rivers within its borders, may give a valid grant thereof to a railroad corporation for railroad purposes, subject only to existing easements of riparian owners. (Saunders v. New York, C. & H. R. R. Co., 144 N.Y. 75, 43 Am. St. 725, 38 N.E. 992, 26 L. R. A. 378.)

Plaintiff's title to use and occupancy of street and other land is not a mere "license" as declared in the findings and conclusions and decree, but is a perpetual property right. (Boise Artesian Hot & Cold Water Co., v. Boise City, 230 U.S. 84, 33 S.Ct. 997, 57 L.Ed. 1400.)

Chas. H. Chance, Fred C. Butler and McNamee & Harn, for Respondents.

We believe that a fairly correct solution of these cases can be reached by the application, so far as the Hirzel or Snake river case is concerned, of Callahan v. Price, 26 Idaho 748, 146 P. 732, where it is decided that a government grant extends to a natural high-water mark only. As to the Neukam or Clearwater river case, the application of the Callahan v. Price case, supra, with the applicaton of the principle enunciated in the case of Banks v. Ogden, 2 Wall. (U.S.), 57, 17 L.Ed. 818, gives us a solution of this case. In the case last cited it is held by the United States supreme court that where a street is laid out between a platted block and navigable water, the owner of the block can acquire title only to the center of the street.

Actual contact with the water is necessary to give riparian rights. (Farnham on Waters, sec. 66b.)

The supreme court of the United States has continuously decided that the different states may adopt whatever rule they please as to whether or not, under grants from the government, the patentee owns to high-water mark, to low-water mark, or to the thread of the stream. (Farnham on Waters, sec. 50; Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224; Packer v. Bird, 137 U.S. 661, 11 S.Ct. 210, 34 L.Ed. 819; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428.)

The grantees of the mayor-trustee could only take to the lot line; they took their lots according to plat and they are confined to their lot lines; this is true whether the lots were in a government town site or in a dedication by an individual. (State v. Forrest, 12 Wash. 483, 41 P 194; Kenyon v. Knipe, 2 Wash. 394, 27...