Reads Landing Campers Ass'n, Inc. v. Township of Pepin, C2-94-2133

• Decision Date: 19 April 1996
• Docket Number: No. C2-94-2133,C2-94-2133
• Parties: READS LANDING CAMPERS ASSOCIATION, INC., Respondent, Soo Line Railroad Company, d/b/a CP Rail System, petitioner, Appellant, v. TOWNSHIP OF PEPIN, Respondent, State of Minnesota, Respondent, and Richard McCaleb, et al., intervenors-defendants, petitioners, Respondents.
• Court: Minnesota Supreme Court

Page 10

546 N.W.2d 10

READS LANDING CAMPERS ASSOCIATION, INC., Respondent, Soo Line Railroad Company, d/b/a CP Rail System, petitioner, Appellant, v. TOWNSHIP OF PEPIN, Respondent, State of Minnesota, Respondent, and Richard McCaleb, et al., intervenors-defendants,

petitioners, Respondents.

No. C2-94-2133.

Supreme Court of Minnesota.

April 19, 1996.

Syllabus by the Court

1. While neither the product of accretion nor of avulsion, riparian land created by the deposit of dredge spoils is owned by the upland riparian owner.

2. Absent unequivocal and affirmative acts by the municipality evidencing intent to abandon, mere nonuse of dedicated streets is not enough to show abandonment.

Review of Court of Appeals.

Patrick J. Nugent, Minneapolis, for appellant.

Jerry Kellum, Winona, for Reads Landing Campers Assoc.; William L. Thomas, Lake City, for Township of Pepin; Hubert H. Humphery, III, Attorney General and Donald A. Kannas, Assistant Attorney General, St. Paul, for the State of MN; George L. May, Hastings, for Richard McCaleb, et al.

Heard, considered and decided by the court en banc.

OPINION

GARDEBRING, Justice.

Reads Landing Campers Association (RLCA), in a declaratory judgment action against the Township of Pepin (Pepin), sought a judicial determination that two platted but undeveloped streets that gave access to the Mississippi River had been abandoned by Pepin. The parties added Soo Line Railroad (Soo Line) and the State of Minnesota (state) when ownership of the riparian beach front property, through which the platted streets passed, also became an issue. Soo Line and its lessee RLCA, sought a determination that Soo Line was owner of the riparian lands created by the deposit of dredge spoils along the bank of the Mississippi River in Pepin. Richard McCaleb and other citizens of Reads Landing (intervenors) intervened.

On cross motions for summary judgment the trial court determined that Soo Line owned the property in question, but rejected the argument that the streets had been abandoned. The court of appeals agreed. We affirm, concluding that the deposit of dredge spoils is neither accretion nor avulsion, but that land created through such actions belongs to the upland riparian owner. On the issue of abandonment, we determine that there were not the requisite affirmative and unequivocal acts necessary to prove abandonment of the platted streets.

The facts in this case are largely undisputed. Reed's Addition to Pepin ¹ was dedicated and platted in 1870. It consisted of four blocks adjacent to the Mississippi River and included two dedicated streets running perpendicular to the river, Reed Street and Main Street. As platted, these streets crossed Water Street and the railroad tracks and ran to the river's edge.

Soo Line and its predecessors have owned the land north of Water Street since before the turn of this century. Beginning in 1927 and running throughout the 1930's and 1940's, the U.S. Army Corps of Engineers conducted dredging operations along the Mississippi River bank at Pepin. The purpose of the project was to deepen the channel to allow for better navigation through that section of the river. In the process, over one million cubic yards of dredge spoils were deposited in front of the Soo Line property creating the beach area now in dispute. Since the time the property was created, it has been used for recreational purposes. Members of the public have used the undeveloped streets to access the river and have used the property as public beach.

In 1966, Soo Line began to lease the property in question. Various commercial enterprises were established on the property over the course of several years by different lessees. The property has been used as a campground and boat harbor. It is uncertain when, but at some point a building was erected, protruding onto a portion of Main Street; it was used over the years as a bait shop, refreshment stand and clubhouse. In 1991, through the assignment of a prior lease, RLCA took control of the property. RLCA closed down public access to the river by installing cable across Main Street and Reed Street leading to the beach. In addition, RLCA set up a line of campers on the beach and added other structures to the area.

RLCA and other lessees of the property have acquired licenses from county and state agencies to conduct business activities and to maintain a campground on the property. Their predecessors also obtained permits from the county and state entities, as well as a federal agency, to create, operate and maintain the marina and harbor. Liquor and food service licenses had been issued to the former lessees by the Goodhue-Wabasha County Community Health Services. Documents in evidence show that a township chairman approved at least four of the liquor licenses as required by law. In addition, the Minnesota Department of Health had issued annual licenses and performed health inspections on the campground facility, and the Minnesota Department of Natural Resources had issued permits to previous lessees to operate and maintain the marina and harbor. Finally, the Department of the Army issued a permit to allow for the creation of the harbor and marina.

On appeal from summary judgment, this court will determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Offerdahl v. University of Minnesota Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). Because the parties agree the material facts are not in dispute, the only questions before this court are questions of law. Thus, this court need not defer to the lower courts when making its determination. A.J. Chromy Constr. Co. v. Commercial Mechanical Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977).

We first consider the issue of ownership of the riparian land created by the deposit of dredge spoils upon and along the bank of the Mississippi River.

The general rule concerning the rights of the owner of riparian land in this state is well settled. The riparian owner's title extends to the low-water mark. The state owns the bed of navigable waters below the low-water mark in trust for the people for public uses, * * *.

State v. Slotness, 289 Minn. 485, 486, 185 N.W.2d 530, 532 (Minn.1971) (citations omitted).

On the question of ownership of the riparian land made by deposit of dredge spoils, the parties rely on alternative characterizations of the process by which the land was "made." Soo Line and RLCA would have us treat the creation of the land as an "accretion." According to the doctrine of accretion, all "made lands" created as a result of "small and imperceptible degrees * * * shall go to the owner of the land adjoining." 2 William Blackstone, Commentaries *261-62 The Supreme Court has defined this as a change that is not perceptible when it takes place. "[T]hough the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on." Philadelphia Co. v. Stimson, 223 U.S. 605, 624, 32 S.Ct. 340, 346, 56 L.Ed. 570 (1912) (quoting County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 68, 23 L.Ed. 59 (1874)). This court, along with the majority of American jurisdictions, ² has held that the rights of the riparian owner include the "right to accretions * * * formed or produced in front of his land by the action * * * of the water." Lamprey v. Metcalf, 52 Minn. 181, 198, 53 N.W. 1139, 1143 (1893).

Further, there is a considerable body of caselaw nationally holding that accretions need not be by natural causes. In Bd. of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, Ltd., 512 So.2d 934 (Fla.1987), the Florida Supreme Court said, "[T]he law, as it has developed, does not distinguish between natural and artificial accretions * * *." Id. at 937. Similarly in Lakeside Boating & Bathing Inc. v. Iowa, 344 N.W.2d 217 (Iowa 1984), the Iowa Supreme Court held that "[a] riparian owner's right to accreted land is the same whether the accretion occurs from natural causes or from artificial means * * *." Id. at 220. ³

In contrast, Pepin, the intervenors, and the state argue that the process is one of "avulsion," another theory of riparian law. Avulsion is defined as any change that is "[a] sudden and perceptible loss or addition to land by the action of water, or a sudden change in the bed or course of a stream." Black's Law Dictionary 137 (6th ed. 1990). As a general rule, riparian land made by avulsion does not change the underlying ownership, State v. Longyear Holding Co., 224 Minn. 451, 29 N.W.2d 657 (1947); Hanson v. Rice, 88 Minn. 273, 92 N.W. 982 (1903), and so Pepin and the intervenors argue, the State of Minnesota is the owner of the "made" land. They rely principally on Longyear, in which this court held the temporary drainage of a lake for purposes of allowing mining of the lake bed did not grant the riparian owners an ownership interest in the land thus created. Longyear, 224 Minn. at 468-69, 29 N.W.2d at 667. Pepin and the intervenors urge that the land created by the dredging did not appear as the result of "small and imperceptible changes," but was the result of a sudden and abrupt action, akin to the temporary draining of the lake in Longyear.

No Minnesota case appears to be precisely on point. Further, the creation of riparian land on the banks of the Mississippi River through the deposit of dredge spoils does not fit neatly into the doctrine of either "accretion" or "avulsion." Rather, what is at issue here is the creation of land, over a period of almost 20 years, by regular, but intermittent man-made activity. It was neither "small and imperceptible" nor "sudden and abrupt," but gradual and periodic. Who, then, should be sanctioned as the owner of the property?

We find our answer in the strong common law tradition of Minnesota in support of the riparian owner's access to the water. This right of access has been called by this court,...