Ozark-Mahoning Co. v. State
| Decision Date | 26 April 1949 |
| Docket Number | 7112. |
| Citation | 37 N.W.2d 488,76 N.D. 464 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Upon its admission to the Union the title of the United States to lands under navigable waters within the state passes to it.
2. If waters in a state are not navigable in fact at the time of its admission to the Union, the title of the United States to the lands underlying such waters remains unaffected.
3. Whether waters within a state are navigable at the the time of the state's admission to the Union is a Federal question to be determined according to the law and usage recognized in the Federal courts.
4. The record in the instant case is examined, and it is Held for reasons stated in the opinion, that Grenora Lake, the title to the bed of which is the subject of the controversy in the instant case, was not navigable at the time of North Dakota's admission to the Union or at the time when the patents conveying title to the lands bounding on said lake were granted to the several patentees thereof.
5. Where public lands within the State of North Dakota bounded by non-navigable waters are patented by the United States without reservation or restriction, the conveyance will be construed and given effect according to the law of the State.
6. Meander lines are not per se boundary lines. They are lines run along the margin of a body of water to ascertain the quantity of upland to be charged for when sold and not to limit the title of the grantee to the meander lines. The waters themselves constitute the real boundaries of such land and the patents convey, in case the waters are not navigable the title of the land lying thereunder to their center.
7. The boundary lines of meandered lands bounded by non-navigable lakes are fixed by extending from each end of their respective meander lines, lines converging to a point in the center of the lakes around which the meander lines are run.
8. The rights of the grantees under patents issued by the United States government are fixed and vested as of the dates of the patents.
9. A legislative declaration that all meandered lakes are navigable will not make them so if they are not navigable in fact as against the pre-existing rights of riparian owners.
10. Section 210 of the Constitution of the State of North Dakota providing that all flowing streams and natural water courses shall forever remain the property of the state for mining irrigating, and manufacturing purposes, has application only to waters of streams and water courses and not to lands underlying them if they are non-navigable, and the constitutional provision was not framed to divest the rights of riparian owners in the waters and beds of all natural water courses in the State.
Sullivan, Fleck, Kelsch & Lord, of Mandan, and Williams, Boesche & McDermott, of Tulsa, Okl., for plaintiff-respondent.
Nels G. Johnson, Atty. Gen. and P. O. Sathre and C. E. Brace, Asst. Attys. Gen., for defendant-appellant.
This is a statutory action, see Chapter 32, RCND 1943, to quiet title to the bed of Grenora Lake No. 2, hereinafter referred to as Grenora Lake. The case was tried to the court. The court found for the plaintiff. Judgment was entered accordingly whereupon the State, the defendant herein, perfected the instant appeal and demands a trial de novo.
Grenora Lake is one of a chain of lakes in Divide County in the northwestern corner of North Dakota. These lakes lie along a depression that probably was a part of the pre-glacial valley of either the Missouri River or the Yellowstone River when those streams emptied into Hudson Bay. The lake is of irregular shape with an area of a little more than a square mile. Its waters are malodorous and are unfit for use by man, beast, fish or fowl, though aquatic birds sometimes rest on its surface. Its bed is level and consists of a permanent solid body of sodium sulphate varying in thickness from two to eighty feet with an average thickness of twelve feet and containing an estimated eleven million tons of sodium sulphate. The lake is nearly surrounded by a quagmiry mud flat of a character such as to make access to it difficult. No vegetation grows in it nor are there any trees or brush around it. It lies in a little valley or pocket wholly surrounded by hills and has neither inlet nor outlet. Its waters are derived from precipitation, from run-off from the hills and from numerous springs flowing from its bed as well as out of the mud flat. The water, as it flows from some of these springs, is clear and potable but that from others is somewhat impregnated with sodium sulphate. Ordinarily evaporation is greater than the sum of the waters from the various sources above mentioned. Through the course of thousands of years the mineral content of the spring-water has been deposited thus forming the bed of sodium sulphate. In the spring of the year when the run-off is heavy or when there is exceptional precipitation the water level may reach a height of as much as a foot or two above the bed of the lake. In times of drouth or late in the summer season the surface water is greatly diminished so that there are only occasional pools here and there, while other parts of the lake are covered with a slushy saturated solution of sodium sulphate and mud, varying from an inch to a foot in depth.
North Dakota was admitted to the Union as a state in 1889. At that time the public domain in the northwestern part of North Dakota had not been surveyed. That portion thereof wherein Grenora Lake lies was surveyed in June 1898 and this survey was approved by the Surveyor General in 1899. The lake was meandered. The fractional portions of the surrounding sections (Section 4, Township 159, 103, and Sections 28, 29, 32, 33, and 34, Township 160, 103) created by the meander lines were designated as lots and numbered in the manner usually followed by surveyors in such cases. Thereafter these lots were patented and ultimately the plaintiff purchased them from the patentees or their grantees, acquiring all but two. The patents contained no mineral or other reservations or restrictions. As owner of the lots plaintiff, as a riparian owner, now claims title to practically all of the bed of the lake. The state on the other hand denies this claim and asserts ownership in itself on the ground that the lake was navigable when North Dakota was admitted to the Union, when the survey by the government was made, and when the patents through which the plaintiff derives its title were issued.
There are many cases in the books dealing with the questions the answers to which are vital to the determination of the instant case. The case of United States v. Oregon, 295 U.S. 1, 55 S.Ct. 610, 615, 79 L.Ed. 1267, decided April 1, 1935 in an exhaustive opinion states the rules which determine many of the questions here involved. In that case the court said that, '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.'
Consistent with what is there said we have held to the same effect. See Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622; State v. Loy, 74 N.D. 182, 22 N.W.2d 668; State v. Brace, N.D., 36 N.W.2d 330 and cases cited. The Oregon case further holds that if waters in a state are not navigable in fact at the time of its creation the title of the United States to lands underlying them remains unaffected and whether such waters are navigable is a federal question to be determined according to the law and usage recognized in the federal courts.
We have heretofore stated the salient facts established by the record respecting Grenora Lake at the present time. There is nothing in the record to indicate that there is any particular different between the general character and condition of the lake now and its character and condition when the state was admitted into the Union or at the time when the survey was made in 1898 and the meander lines about it were run by the surveyors. The lake has neither inlet nor outlet. Its bed is solid and practically level throughout its whole extent. The annual increment to the deposit of the mineral in its bed must have been insignificant throughout the centuries. It cannot be believed that the thickness of the sodium sulphate deposit has increased to any appreciable extent during the time since the state was admitted into the Union. There is no evidence that any use ever has been or could be made of the waters of the lake either for pleasure or for profit, for travel, or for trade. No boats were used thereon. The water at all times has been of such a character that it was not habitable for fish. Neither the lake nor its surroundings are suitable for any purposes of pleasure. It is true that aquatic birds sometimes rested on its surface and there is evidence that hunters occasionally shot waterfowl that flew to or from the lake, but this was an infrequent occurrence. On these facts, measured by the federal rule as to navigability it is certain that the lake was not navigable in fact at the time of the admission of the state into the Union or at the time the lands abutting on its meander lines were patented. See United States v....
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