Roberts v. Taylor

• Decision Date: 14 January 1921
• Citation: 47 N.D. 146,181 N.W. 622
• Parties: ROBERTS v. TAYLOR et al.
• Court: North Dakota Supreme Court

47 N.D. 146

181 N.W. 622

ROBERTS

v.TAYLOR et al.

Supreme Court of North Dakota.

Jan. 4, 1921.

Rehearing Denied Jan. 14, 1921.

Syllabus by the Court.

In determining the status of an inland lake in this state, as public or private waters, the test of “navigability in fact” is applied.

This test is not confined to a capacity for use in commerce of a pecuniary value, but may be extended to capacity for use for purposes of navigation for pleasure, public convenience, and enjoyment.

The state, in its sovereign right, possesses the title to the bed of public waters within this state.

The state, in its proprietary right, owns an island existing in public waters located within a school section, which has been ceded by the federal government to the state.

Sweetwater Lake, extending some six miles in length and in width two miles in places, with clear and deep water, meandered by the United States governmental survey in 1883, and since that time used by the public for boating and hunting, and capable of being navigated for such and other purposes, is navigable.

The plaintiff and the defendant, riparian owners by virtue of grants from the federal government and from the state to lands abutting upon such lake, received no title to the bed of the adjacent lake, and only the rights of riparian owners upon navigable waters.

The state, as well as the parties, are interested in the accessions that have occurred to the respective tracts of land through the recession of the lake waters, and the portion to be allotted to each is determinable upon principles of reliction.

Appeal from District Court, Ramsey County; Kneeshaw, Judge.

Action by Albert Roberts against Charles E. Taylor and others. Judgment for plaintiff, and defendants appeal. Reversed, and new trial granted, with directions to notify state.

Chas. A. & Chas. M. Pollock, of Fargo, for appellants.

Flynn & Traynor, of Devils Lake, and Edward Engerud, of Fargo, for respondent.

Statement.

BRONSON, J.

This is an action to determine adverse claims concerning land of a lake bed. The lands involved abut upon Sweetwater Lake in Ramsey county, and were meandered by the United States governmental survey in 1883. The bed of this lake in controversy is located in section 36, a school section, and contains upwards of 400 acres. Exhibit A, attached, is a rough plat of a portion of the lake. It shows the lands of the parties adjacent to the controverted lake bed, and also, roughly, a constructed fence and the present shore lines of the north and south lake after recession of the waters.

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The plaintiff is the owner of lots 1 and 2 in section 36, comprising some 58 acres, upon title deraigned from the state of North Dakota; also of lots 2, 3, 4, and 5 in section 31, adjoining, comprising about 56 acres, upon title deraigned from the United States. The defendant is the owner of lots 3 and 4 in section 36, comprising about 17 acres, upon title deraigned, respectively, from the state of North Dakota and the United States; also of lots 1 and 2, a portion of lot 3, and the S. E. 1/4 of S. E. 1/4 in section 35, comprising about 118 acres, upon title deraigned from the United States. The defendant is also the owner of 120 acres to the west of his lands above described. The plaintiff homesteaded the land in section 31 in 1889 and 1890. He bought his lands in section 36 in 1901. The defendant became the owner of his lands in 1905. The plaintiff asserts in his complaint that he is the rightful owner of that half of the lake bed involved, adjacent to his land, to be determined by a line to be drawn equally distant between the meander lines of the ancient shore line. The defendant answers that he is the rightful owner of the lake bed involved adjacent to his land up to the fence designated in Exhibit A; that the lake was and is a navigable lake; that upon principles of reliction, through the gradual recession of the waters, he acquired such ownership up to the fence; that, furthermore, this fence has been constructed and maintained for a period of over 30 years, with the knowledge of the parties and the grantors; that the defendant has been adversely in possession of the lands claimed during the statutory period, and that, upon principles of estoppel applicable, with respect to the maintenance of the fence and the purchase of the lands, the plaintiff cannot dispute the title of the defendant thereto. The other defendants are claimant mortgagees.

Trial was had in August, 1919. The trial court found that the plaintiff was the owner of the bed of the lake as claimed by him. Pursuant thereto judgment was entered. In a memorandum decision the trial judge stated that he did not pass upon the questions of navigability of the lake nor the questions of estoppel in the record. The defendant has appealed from the judgment and demands a trial de novo. The additional facts necessary to be stated are substantially as follows:

Sweetwater Lake is a large lake some six or more miles in length and some two miles in width at some places. It is fed from waters that proceed from arms of the lake and from a coulee to the northeast. The size of the lake has gradually changed during the past 35 years. In 1883 there existed one entire lake from the north to the south over section 36, excepting an island located towards the middle and the north of section 36. All the witnesses agree that this island, with timber and growing trees thereon, has always there existed since 1883. No witness testified that this island ever was inundated. Gradually through the years, in the improvement and development of the country, a recession of the waters has occurred. The land in section 36 theretofore under water became more and more dry land. There continued, however, in this section channels through which the waters flowed from the north to the south. Most of the witnesses placed these channels more in the location where the fence was erected. A few witnesses testified that water flowed to the west of the fence from north to south. Gradually a shore line was established along the north side of section 36, and also along the south side of section 36. The witnesses have designated the lake to the south as the south lake or Storman Lake, and the lake to the north as Sweetwater Lake. Some of the witnesses have stated that there were three lakes: Sweetwater Lake to the north, Middle Lake on section 36 south and west of the island, and South Lake. The trial judge, with the attorneys, visited the lake. The result of his inspection is made a part of this record. He entered section 36 from the east and went west upon plaintiff's land. He examined the lake to the north and east as far as the eye could reach. He stated that a few rods from the shore line the water was filled with growing weeds; that beyond those weeds there was one vast expanse of water stretching north and west, north and east; that the lake to the eastward was about one mile wide, and, looking to the west and north, there was water as far as could be seen, all as more fully indicated by the government surveys thereof. The plaintiff testified that he knew this land since 1883; that then when the government survey was made water was running so that he could not get to the island from the east side, and he was shut off likewise from the west side; he remembered once of wading across on the west side; that about that time there was a hunting lodge on the island; that he does not think he ever waded across then; that there was water at that time in a circle (around the east to the west) where the fence was; that gradually through the years the bed has become dry land; that he first saw this fence there as early as 1883 or 1884; that it has since remained there down to the present time.

One Lohnes, a veteran of the early days, having come up the Missouri as a soldier in 1867, testified he bought lots 1 and 2 in section 36 from the state and assigned his contract to the plaintiff; that at one time he was the owner of the defendant's land; that he and one Belgaard built this fence; that there was water along the entire length of it; that the water seemed to gradually dry up towardsthe fence; that he had also claimed the land west of the fence to be a part of the defendant's (then his) land; that he had an agreement with the plaintiff, when he made a bid concerning the school land later sold to the plaintiff, that this fence should be their dividing line; that when the fence was built there was water all through excepting what was called the island. He used this land for pasturing. Other witnesses gave testimony of hunting and boating on this lake and over this land during the years from the time of the survey. They hunted ducks in boats that were used on the north lake, thence to the land and around and upon the island. Another witness testified that in 1883 the entire lake was one solid bed of water excepting the island; that this little island was always covered with timber ever since he could remember; that in early days one could not wade very far into the north lake until he got into deep water; that he has hunted over this land after ducks and saw long stretches of water from the northeast to the southwest upon this section 36. Many years ago the south lake became somewhat dry and later it filled up again. During the year when the trial was had this land involved in section 36 was planted into crops of flax, wheat, and barley, as to the greater portion thereof. In the patent from the state of North Dakota covering the land granted there appears the following:

“Reserving and excepting from the portion of this grant all rights and privileges vested in the state of North Dakota under the provisions of the Constitution and Laws of said state.”

Upon this appeal the defendant contends that the lake is navigable; that, as a riparian owner, the defendant is entitled upon principles of reliction to the land involved adjacent to his land up to the fence; that he...