Peck v. Alfred Olsen Const. Co.

• Decision Date: 29 September 1931
• Docket Number: No. 40894.,40894.
• Citation: 238 N.W. 416
• Parties: PECK v. ALFRED OLSEN CONST. CO. ET AL.
• Court: Iowa Supreme Court

238 N.W. 416

PECK

v.ALFRED OLSEN CONST. CO. ET AL.^a1

No. 40894.

Supreme Court of Iowa.

Sept. 29, 1931.

Appeal from District Court, Dickinson County; F. C. Davidson, Judge.

Action to enjoin the defendants from the construction and maintenance of a so-called dock or pier in West Lake Okoboji, the plaintiff contending that he is a riparian owner and that the said structure interferes with his access to the waters of said lake. The trial court dismissed the plaintiff's petition, and he appeals.

Affirmed.

KINDIG, DE GRAFF, MORLING, and GRIMM, JJ., dissenting.H. E. Narey, of Spirit Lake, and Leslie E. Francis and Francis, Maley, Witmer & Todd, all of Des Moines, for appellant.

K. B. Welty, Co. Atty., of Spirit Lake, Oral S. Swift, Asst. Atty. Gen., and John Fletcher, Atty. Gen., for appellees.

FAVILLE, C. J.

No question is raised as to the right of the appellant to maintain this action against the members of the Board of Conservation of the State, or against the state itself. Also it is not questioned but that West Lake Okoboji is a navigable body of water. The appellant owns certain real estate abutting upon said lake, and has for many years maintained the same as an amusement park, and said property is visited by many thousands of people each year. At the time of the bringing of this action the appellees were engaged in the construction of what is described as a dock, or pier, or “turn-around” within the waters of said lake.

The following plat will aid in an understanding of the questions involved:

IMAGE

As indicated by the arrow, Lake avenue in the town of Arnolds Park extends north and south. Appellant's property is located within the limits of said town. The shore line of Lake Okoboji at the place in controversy extends generally on a curve. The property owned by the appellant that is involved in this case is known as lot 18 and abuts upon the lake. As shown in the plat, there were three docks extending into the lake along the front of appellant's property. The construction undertaken by the appellees is in effect an extension of Lake avenue as shown on the plat, with a widening in the form of a circular “turn-around” within the lake. As shown by the evidence, the main purpose of the construction is to enable automobiles passing north on Lake avenue to turn around on this structure within the lake. The dock owned by the appellant, being the one farthest west of the three docks shown on the plat, was removed by the appellees in the nighttime, and, as we understand the record, the outer wall of the structure was placed as indicated on the map by the dotted line in front of a portion of appellant's property. As not inaptly described by the trial court, the structure in a way resembles the bulb of a thermometer. The boathouse on the plat belonged to the appellant, and its removal was necessary in order to erect the structure in question.

[1] II. It is contended by the appellant that Lake avenue did not extend to the shore line of the lake, but extended only to the cement walk running in a general east and west direction across Lake avenue. The appellee contends that Lake avenue extends by prescription across said cement walk and to the shore line of the lake. The evidence on this point in behalf of appellant tends to show that the use of Lake avenue by the public has generally been only as far north as to said cement walk. From said walk north to the shore line, however, some fill has been placed, and it is contended by appellees that this was done by the town of Arnolds Park. There is evidence tending to show that in the winter-time the portion of land lying north of said cement walk and in line with said Lake avenue has been used for the purpose of hauling ice from the lake. The evidence is extremely close on this question and by no means free from doubt, but from a careful examination of the entire record we are disposed to concur in the conclusion of the trial court that Lake avenue extends north beyond said cement walk and to the shore line.

As shown on the plat, the structure in question is circular in form, and it appears from the record that the structure as constructed will extend some 27 feet in front of the appellant's property.

The following plat will further aid in an understanding at this point:

IMAGE

[2][3] The building and dock therein shown are the boathouse and dock shown in the previous plat. The evidence establishes to our satisfaction that the circular structure will extend at least 27 feet directly in front of a portion of appellant's property and would be intersected by an extension of appellant's lot line. The effect of such structure so placed in front of appellant's property is to deny to the appellant access to the lake in front of said portion of his property and to permanently deprive him of access from said portion of his property to the waters of said lake. It is to be noticed that the structure is not constructed parallel to the line of appellant's lot if projected into the lake, but is, as shown on the plat, constructed on a curve, which causes it to extend at least 27 feet directly in front of appellant's property. It is immaterial at this point that a portion of appellant's property is not obstructed by the structure in question. We must view the case as though the appellant were the owner of only 27 feet of shore line and that the structure in question was placed directly in front of his property and in the waters of the lake below high-water mark. That appellant may have access to the lake from other property is not important.

[4] The right of a riparian landowner upon a navigable body of water in this state, as to the soil, extends to high-water mark only. McManus v. Carmichael, 3 Iowa, 1;Haight v. City of Keokuk, 4 Iowa, 199;State v. Thomas, 173 Iowa, 408, 155 N. W. 859;City of Cedar Rapids v. Marshall, 199 Iowa, 1262, 203 N. W. 932.

[5][6] The title to the bed of a navigable lake in this state below high-water mark is in the state, which holds it in trust for the use and benefit of the public. State v. Thomas, supra; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224.

Appellant contends that as a riparian owner he is entitled, as a common-law right, to free access to the waters of the lake, and that he has not been deprived of that right by any statute. It is conceded by the appellant that this question was apparently determined adversely to him in the early case of Tomlin v. Dubuque, B. & M. R. Co., 32 Iowa, 106, 7 Am. Rep. 176. In that case it appeared that the plaintiff was a riparian owner on the shore of the Mississippi river. The defendant railroad company built a railroad between his land and the river, and about 25 feet of the riverside of the right of way was laid out on a bench of land below high-water mark. The plaintiff claimed damages by reason of obstruction of said land in such manner as to deprive plaintiff of access to the river. The case turned upon instructions given to the jury.

We have examined the original record in this case and find therefrom that appellee's counsel in said case opened his argument with the following statement:

“The only question raised by this appeal is whether a riparian owner has such an interest in land bordering on the Mississippi River below high water mark as to entitle him to damages from a railway company seeking to occupy it?

This question has been answered by the Supreme Court of Iowa in the case of McManus v. Carmichael, 3 Iowa, page 1; and in the case of Haight v. Keokuk, 4 Iowa, 212 and 213, and it is only upon a review of these cases that the appellee can expect a favorable decision in this case.

That it would subserve the ends of justice, and better conform to the weight of authority on this subject in the United States, to overrule those cases, there is no doubt.”

Said argument concluded with the following statement: “We are satisfied that the ruling in the case of McManus v. Carmichael might, with great propriety, have been the reverse of what it was; and we do not hesitate to ask the Court to reconsider that case, and overrule it to the extent, at least of extending riparian rights to low water mark.”

With the concession of counsel, which was recognized in the opinion in this court, we held: “The doctrine deducible from adjudged cases is, that by the rules of the common law the owner of land along the shore of a navigable river is entitled to no right, either in its shores or waters, as an incident of his ownership, except the contingent ones of alluvion and derelictum. Hence he is not entitled to damages, for an improvement made along the banks of such river, by the authority of the State, the effect of which is to deprive him of free access to the stream.”

In support of our conclusion we cited two cases, Gould v. Hudson R. R. Co., 6 N. Y. 543, and Stevens v. Paterson & N. R. Co., 34 N. J. Law, 532, 3 Am. Rep. 269.

The Tomlin Case has never been expressly overruled by this court. It is predicated upon the proposition that a riparian owner only owns the fee title to the high-water mark, and that as such owner he has no other rights in the shore or waters “except the contingent ones of alluvion and derelictum.” Without expressly overruling the Tomlin Case, we have, however, recognized that a riparian owner does have other rights.

In the case of Grant v. City of Davenport, 18 Iowa, 179, we said: “We entertain no doubt as to the right of the riparian proprietor (outside of any incorporated city or town) to erect wharves or landing places on the shores of navigable waters, if they conform to State regulations (if any), and do not obstruct the paramount right of navigation. This right is expressly recognized in Dutton v. Strong, 1 Black, 1 , and we can find no case to the contrary.”

In Musser v. Hershey, 42 Iowa, 356, we reiterated the statement that the riparian proprietor upon navigable waters owns only to the ordinary high-water mark, and said:

“It is true such party would have the right to construct,...