Provo City v. Jacobsen

Decision Date03 January 1947
Docket Number6774
CourtUtah Supreme Court
PartiesPROVO CITY v. JACOBSEN et al. (STATE, Intervener)

Appeal from District Court, Fourth District, Utah County; Abe W Turner, Judge.

Action by Provo City, a municipal corporation, against W. M Jacobsen and others to acquire certain lands near the shore of Lake Utah and Provo Bay for a municipal airport, on ground that the State of Utah claimed the lands and had leased them to the plaintiff, wherein the State of Utah intervened claiming to own the lands. From a judgment for the defendants, the plaintiff and intervener appeal.

For opinion on rehearing, see 111 Utah 68, 181 P.2d 213.

Judgment affirmed.

I E. Brockbank and George W. Worthen, both of Provo, for plaintiff-appellant.

Grover A. Giles, Atty. Gen., and Herbert F. Smart, Asst. Atty. Gen., for intervener-appellant.

Judd, Ray, Quinney & Nebeker, of Salt Lake City, J. Rulon Morgan, of Provo, and McCullough & Ashton, of Salt Lake City, for respondent.

Wade, Justice. McDonough and Wolfe, JJ., concur. Larson, Chief Justice (dissenting). Pratt, J., not participating.

OPINION

Wade, Justice.

Plaintiff, Provo City, brings this action against the defendants, about forty individuals, to acquire certain lands near the shore of Utah Lake and Provo Bay for a municipal airport. Plaintiff alleges that the state of Utah claims to own said lands which it has leased to plaintiff; that defendants are in possession thereof and claim some right, title and interest thereto and ask that such interest be adjudicated and that such interest, if any, be condemned and plaintiff acquire the same by eminent domain. Utah lake is navigable. The lands in question are bounded on the west and south by the waters of that lake and Provo Bay and are between the meander line as established in 1856 and the waters of the lake as at present located. The state of Utah intervened, claiming to own such lands on the grounds that on January 4, 1896, when it became a state it acquired title thereby to such lands because at that time they were a part of the bed of the lake. Various defendants answered claiming ownership to various parts of the lands in question and all of the lands in question to a certain line were claimed by one or other of the answering defendants. Defendants claim as successors in interest of persons who received patents, prior to statehood, from the United States to part sections of lands contiguous to and bounded by the lake, the surveyed parts of which lands run from the meander line to the north and east. They claim ownership either by reason of the patents or as riparian owners as the lake receded to the lands formed by reliction or accretion. The defendants are now, and their predecessors in interest have been, in possession of the lands which they respectively claim during all of the time since the patents were issued or since the said lands were uncovered by the waters of the lake. Thelands in question slope very gradually toward the water of the lake, and a very slight raise in the elevation of the water causes a large area of land to be thereby covered.

The court found that

"from 1884 to 1895, inclusive, excepting the year 1889, * * * water from Utah lake would periodically cover the property"

involved in this action;

"that on January 4, 1896 the water level of Utah lake * * * was below compromise elevation."

[This elevation was stipulated to be 4488.95 feet above sea level. It was established in 1885 by a commission appointed for that purpose by an agreement between the riparian owners on the shore of Utah Lake and the water users fromthe Jordan River at certain monuments designated at various places on the lake shore as the elevation to which the lake waters could be raised.]

"There was no competent evidence offered or received upon which the court can find the high water mark on the lands"

herein involved

"on January 4th, 1896, or at any time prior thereto, except evidence of an old shore line running in a general northerly and southerly direction from the old Provo Resort to will Peay's cabin. * * *."

The lands here involved are above this old shore line.

The trial court entered judgment in favor of the defendants and against the plaintiff and the state that the defendants are the owners of the parcels of land which they respectively claim. The state contends that the findings and judgment are contrary to law and the preponderance of the evidence. If this is an equity case we must pass on both the law and the facts. So we have examined the evidence to determine where the preponderance is and given due consideration to the opinion of the trial judge who heard the evidence and saw the witnesses.

The state contends that the title to the bed of the lake as it was at the time Utah became a state thereupon became vested in the state; that the high water mark as it was at that time was the boundary line between the property of the state and the riparian owners of the lands bordering on the lake. It further contends that proof of the establishment of the meander line in 1856 was sufficient to make a prima facie case; that the meander line was on the high water mark at that time, and in the absence of a showing of a high water mark at a different place at the time of statehood, the court must presume that it remained at the meander line. The state further contends that no new high water line has been established by the defendants but the state has shown by graphs and charts the levels of the waters of the lake during all the time from the beginning of 1884 until after Utah became a state. It contends that the average of the highest levels which the water reached each year for all the years during which records were kept prior to statehood is the high water mark. Figured on this basis, the high water mark would be 1.48 feet above compromise elevation.

The state concedes that the meander line is not necessarily the boundary line. Knudsen v. Omanson, 10 Utah 124, 37 P. 250; State v. Rolio, 71 Utah 91, 262 P. 987; Shively v. Bowlby, 152 U.S. 1, 31, 14 S.Ct. 548, 38 L.Ed. 331. There are cases which indicate that in the absence of evidence to the contrary the meander line as established represents the high water mark and is therefore the boundary line. State v. Imlah, 135 Or. 66, 294 P. 1046. Here there was much evidence both on the part of the state and the defendants as to the levels of the water during the period from 1884 to the time Utah a state and as to the times when and how much of this land was covered during the various parts of that period, and as to the condition of this ground during that time. In view of this fact, we are not called upon to assume any fact but must determine what the preponderance of the evidence is. Since the state is asserting ownership to this land, it has the burden of proving by a preponderance of all of the evidence where the high water mark was at the time Utah became a state.

The state's evidence showing the highest point the water reached in each year from 1884 to the time Utah became a state does not prove where the high water mark was at that time. The trial court apparently believed that the waters of the lake were at the high levels shown by the graphs because it found that the water periodically covered this land from 1884 to 1895, inclusive, excepting the year of 1889, and we are convinced that such finding is supported by a preponderance of the evidence, but the high water mark is not determined by an average over a period of years of the highest levels which the water reached each year. Willis v. United States, D.C., 50 F.Supp. 99; Merrill v. Board, 146 Iowa 325, 125 N.W. 222. The term "high water mark" means what that term indicates -- a mark on the land impressed by the water upon the soil by covering it for sufficient length of time so that it is deprived of vegetation and its value for agricultural purposes destroyed. See two cases just cited and Gould, Law of Water, 3rd Ed., Sec. 45; Raide v. Dollar, 34 Idaho 682, 203 P. 469; City of Tulsa v. Peacock, 181 Okl. 383, 74 P. 2d 359; State ex rel. v. Sorenson et al., 222 Iowa 1248, 271 N.W. 234; State v. Longfellow, 169 Mo. 109, 69 S.W. 374; State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014; Anderson v. Reames, 204 Ark. 216, 161 S.W.2d 957; Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816, Ann. Cas. 1915C, 1148; Union Sand & Gravel Co. v. Northcott, 102 W.Va. 519, 135 S.E. 589; Tilden v. Smith, 94 Fla. 502, 113 So. 708; Carpenter v. Board of Commissioners, 56 Minn. 513, 58 N.W. 295, 45 Am. St. Rep. 494; Sun Dial Ranch Co. v. May Land Co., 61 Or. 205, 119 P. 758, 759; Austin v. City of Bellingham, 69 Wash. 677, 126 P. 59.

The cases cited by the state do not support its contention. For the most part they are cases involving tidal waters where the season to season change in the water level is not great but the change from one tide to another occurs several times daily. In such case, the problem is entirely different from the case where there is a great fluxation from the wet to the dry season of the year.

The cases of State v. Imlah, 135 Or. 66, 294 P. 1046, 1048, and Johnson v. Knott, 13 Or. 308, 318, 10 P. 418, quoted from in the state's brief, do not involve tidal waters and each define the high water mark as "the point to which the water usually rises in an ordinary season of high water."

In State v. Imlah, the reference is merely incidental. It cites the Johnson Knott case repeating the definition therefrom and no further definition of the term is made. The term "usually rises in an ordinary season of high water" without further clarification is very uncertain in its meaning. The case of Johnson v. Knott [13 Or. 308, 318 10 P. 418] was a jury case...

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