State ex rel. O'Connor v. Sorenson

• Decision Date: 10 February 1937
• Docket Number: 43692.
• Citation: 271 N.W. 234,222 Iowa 1248
• Parties: STATE ex rel. O'CONNOR, Atty. Gen., et al. v. SORENSON et al.
• Court: Iowa Supreme Court

271 N.W. 234

222 Iowa 1248

STATE ex rel. O'CONNOR, Atty. Gen., et al. v. SORENSON et al.

No. 43692.

Supreme Court of Iowa.

February 10, 1937

Appeal from District Court, Johnson County; Harold D. Evans, Judge.

An action in equity to recover possession of real estate and to quiet title thereto in plaintiff. Defendants claim to own the land in question, and ask that their title be confirmed and quieted as against plaintiff. From a decree in favor of defendants, plaintiffs appeal.

Reversed and remanded.

Edward L. O'Connor, Atty. Gen., C. M. Updegraff, Sp. Asst. Atty Gen., and Le Roy A. Rader, Asst. Atty. Gen., for appellants.

Will J. Hayek, of Iowa City, for appellees.

KINTZINGER, Justice.

The land in dispute is a (100-foot) strip lying between the west bank of the Iowa river and the pavement known as highway No 6, and is located between the Iowa Avenue Bridge and the Burlington Street Bridge in Iowa City, Iowa. Each party contends that the boundary line of the property is the line known as the high-water mark of the Iowa river on the westerly side thereof, and the dispute herein relates to the location of said high-water mark.

Plaintiff-appellant contends that the boundary line of the properties is the present high-water mark on the west side of the river.

Defendants-appellees contend that the Iowa river had two high-water marks; the first being one existing prior to the construction of a dam across the river just south of the Burlington Street Bridge at Iowa City, in 1905, and the second being a new high-water mark created by a raise in the level of the river caused by the construction of said dam.

Appellees also deny the location of the present high-water mark as contended for by appellant, and deny that the new high-water mark is the easterly boundary of their property.

Appellant claims to be the owner of the bed of the Iowa river up to the present high-water mark on the westerly side thereof. The defendants deny such ownership in the State, but claim ownership of the property in question, and ask to have title therein quieted in them.

The lower court found that the defendants Otto J. Sorenson, Ira L. Sorenson, and Aral C. Sorenson are the owners of the real estate in dispute, and that neither the plaintiff nor the other defendants named have any right, title, or interest therein. The State appeals.

I.

The undisputed evidence shows that the State constructed a dam across the Iowa river in 1905 just below the Burlington Street Bridge, which is located about one block south of the property in dispute. The testimony also shows that the construction of the dam raised the level of the river 8 or 10 feet, resulting in an alteration raising the original high-water mark on the westerly side of the river, which plaintiff contends is now shown in State's Exhibits 25 and 27, as being an elevation of 56 feet above the Iowa City datum.

The evidence shows that a building owned by the defendants and known as the Midway Inn is situated along the east side of Highway No. 6, and that the 56-foot contour line shown on Exhibits 25 and 27 is considerably east of the east edge of the paved highway.

Defendants contend that they are, and that their predecessors in title were, the owners of the land in question easterly of Highway No. 6 to the high-water mark of the Iowa river as it existed prior to the construction of the dam.

Certain improvements known as the Midway Inn and an artificial fill adjoining were placed upon the property claimed by the defendants, in 1927, no part of which they claim extends easterly of the present high-water mark on the west side of the river.

There is also a dispute as to the location of the present high-water mark on the west side of the river along the property in question.

Dr. Shimek, a civil engineer and professor of botany at the State University, who was familiar with the location in question for over fifty years, and Professor Holt, an expert civil engineer and a professor in the Civil Engineering Department at the State University at Iowa City, both say that, from an examination of the grounds and soil on the property in dispute, in 1921 and 1933, and from the lack of vegetation therein, at the Inn, and at an artificial fill adjoining, they could locate the present high-water mark at the place in dispute.

They say that the high-water mark is a line delineating the bed of the stream from the bank, and that the bed of the stream is the area which the continued action of the water caused to have an appearance distinct from that above a high-water mark in the matter of vegetation and character of the soil. They fixed the high-water mark of the river in 1921 and 1933 along the property in dispute at an elevation of 56 feet above the Iowa City datum, measuring from the Iowa City datum in determining said elevation. Other matters shown to exist in the area in question are also located by other contour lines on the same maps.

One of the controverted questions herein relates to the location of the present high-water mark along the property in question. An accepted definition of " high-water mark" is set out in the case of City of Cedar Rapids v. Marshall, 199 Iowa, 1262, loc. cit. 1264, 203 N.W. 932, 933, where this court said: " The term ‘ ordinary high-water mark’ has been frequently defined by this and many other courts. It is not the line reached by unusual floods, but it is the line to which high water ordinarily reaches. [Citing case.] " ‘ High-water mark’ means what its language imports-a water mark. It is co-ordinate with the limit of the bed of the water; and that only is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes. * * * Bennett v. National Starch Mfg. Co., 103 Iowa, 207, 72 N.W. 507; * * * Houghton v. C., D. & M. R. Co., 47 Iowa, 370."

The high-water mark, therefore, may be defined as to the line to which high water ordinarily reaches, and is not the line reached by the water in unusual floods. It is that line below which the soil is unfit for vegetation or agricultural purposes.

Appellees contend that because several large trees were standing in a north and south line east of the high-water mark located by appellant's witnesses, their testimony has been impeached, on the theory that if no vegetation could grow between the high and low water marks, trees of the size found in the line referred to could not have grown, and consequently the high-water mark must have been east of the trees.

Dr. Shimek, one of the most eminent botanists in the country, and for many years professor of botany at the State University, says that trees of the character and size found along the area in question could easily have gained a foothold and grow below the high-water mark, notwithstanding the fact that smaller vegetation might not grow between the high and low water marks.

Both Dr. Shimek and Professor Holt observed the character of the vegetation along the bank of the stream, and judging from it, testified that the present high-water mark is at an elevation 56 feet above the Iowa City datum. They also testified that the high-water mark along the property in question practically intersects the center of the Inn, north and south, and that the east end of the Inn is approximately 43 feet east of the east edge of the paving known as Highway No. 6.

Professor Holt and Dr. Shimek testify that the bed " is an area which, by action of the water * * * renders the land unfit for agricultural purposes and * * * of ordinary vegetation growing in said locality except such as will grow practically in water."

Without setting out other evidence offered in behalf of appellant in detail, it is sufficient to say that several other witnesses, including two engineers, corroborate the testimony of Professor Holt and Dr. Shimek.

Mr. C. E. Sayre, an experienced civil engineer, testified that Plaintiff's Exhibit 25 is a contour map, and that working therefrom he has run a line on elevation 56, and that any other surveyor could locate it from the description given, which is as follows: " Beginning at a point where said contour line intersects the face of the south wing-wall (of the old Bridge abutment at Iowa Street), which point is 104 feet south of and 1,598.5 feet west of the Old Capitol building in Iowa City, thence S 21° 18 1/2 ' W 31.7 feet, thence S 10° 00 1/2 ' W 25.0 feet, thence S 7° 21' E 15.6 feet, thence S 11° 43 1/2 ' E 27.0 feet, thence S 1° 34 W 36.5 feet, thence S 6° 55' E 33.2 feet, thence S 3° > 38' E 31.6 feet, thence S 2° 33' E 45.0 feet, thence S 1° 06' E 52.0 feet, thence S 13° 08' E 30.8 feet, thence S 5° 26 1/2 ' E 21.1 feet. * * * The contour line above described intersects the north and south boundary lines of the tract in issue and crosses said tract."

There was a conflict in the evidence as to the location of the present high-water mark. Several witnesses for the appellees testify that the entire building known as the Inn and the area some distance east of it is located above the present high-water mark. This is purely a question of fact.

It is our conclusion, after a careful consideration of all the evidence in the case, that the present ordinary high-water mark of the Iowa river along the property in question is that as shown by the contour line marked elevation 56 as shown on the contour maps referred to as Exhibits 25 and 27.

It is also our conclusion from the undisputed evidence that the high-water mark existing prior to the construction of the dam was 8 or 10 feet lower than...