State ex rel. Haman v. Fox
| Decision Date | 21 May 1979 |
| Docket Number | No. 12430,12430 |
| Citation | 594 P.2d 1093,100 Idaho 140 |
| Parties | , 9 Envtl. L. Rep. 20,507 In the Matter of the Representation of the State of Idaho in STATE of Idaho ex rel. Gary M. HAMAN, Prosecuting Attorney for Kootenai County, Plaintiff-Appellant, v. E. R. W. FOX and Eileen Fox, husband and wife, Burgess K. McDonald, duly appointed representative of Carmelita K. McDonald, Deceased, and the unknown heirs and devisees of each and every one of them, and the unknown owners of or claimants to any interest in that certain parcel of land situated in Kootenai County, Idaho, particularly described as follows, to wit: Beginning at the Southwest corner of Lot 8, Block 29, Lakeshore Addition to Coeur d'Alene, Idaho, said point being a concrete monument; thence South 83o 42'00 East along the South Boundary of said Block 29 a distance of 352.03 feet to the Southeast corner of Lot 14, said Block 29, thence South 19o 38'39 East, 85.70 feet to the Northwesternmost end of a concrete retaining wall, said point being the True Point of Beginning for this description, thence South 3o 25'01 West, 23.32 feet to the Southwesternmost corner of said wall, thence South 83o 51'05 East, 249.94 feet to the Southeasternmost corner of said wall, thence North 4o 33'35 East, 24.53 feet to the Northeasternmost end of said wall, thence North 84o 07'53 West, 250.37 feet to the Northwesternmost end of said wall and the True Point of Beginning for this description, Defendants-Respondents. |
| Court | Idaho Supreme Court |
E. L. Miller, of Miller, Knudson & Eismann, Coeur d'Alene, for defendants-respondents.
This is an action brought by the Prosecuting Attorney of Kootenai County on behalf of the people of the state of Idaho to establish public rights in and to privately owned water front property on Lake Coeur d'Alene. The district court determined that the public had no right or interest in the property and gave judgment to the property owners. We affirm.
Defendants-respondents C. R. W. Fox and Eileen Fox, husband and wife, and Burgess K. McDonald, personal representative of the estate of Carmelita K. McDonald, deceased, own adjoining residential properties in the City of Coeur d'Alene. The properties consist of two residential lots in the Lake Shore Addition Plat together with two water front parcels abutting the waters of Lake Coeur d'Alene. The water front property is separated from the platted lots by Lake Shore Drive, a dedicated public street. Respondents' homes and yards are in the platted lots to the north of Lake Shore Drive. The water front lots to the south of Lake Shore Drive are for the most part sandy beach. The beach lots are adjoined on both sides by other privately owned lots, which together comprise what is commonly known as Sander's Beach. The beach has no public access other than from the lake itself. But the public does have access to the lake via a deeded right-of-way to the west of respondents' property and via a ten-foot wide pathway to the east of respondents' property.
Respondents' beach property extends south from Lake Shore Drive to the ordinary mean high water mark of Lake Coeur d'Alene. Their adjoining lots have a combined lake frontage of 250 feet and a depth of from 60 to 75 feet. The property is subject to the seasonal fluctuations of high water in the spring and low water in the late summer and fall. The property is also subject to the washings and erosive forces of the lake.
For many years, at least since the 1920's, respondents and their predecessors have maintained seawalls to protect a portion of their property immediately south of Lake Shore Drive from the erosive forces of the lake. In 1971 respondents obtained the necessary building permits from the City of Coeur d'Alene and constructed a new concrete seawall. The new wall is a three-sided structure extending approximately 20 feet closer to the lake than the earlier walls and running the entire 250 feet across respondents' property. The wall does not interfere with swimming or boating on the lake, nor does it extend to the ordinary high water mark of the lake. The wall has, however, eliminated the public use of the enclosed area for sunbathing, picnicking and other related activities. It is this 20 feet by 250 feet enclosed area which is in dispute here.
This action was brought to force respondents to remove the seawall and to permanently enjoin them from further interfering with the alleged right of the public to use the enclosed areas. The complaint alleged that for over thirty years the general public had enjoyed complete freedom to use the beach for recreational purposes. It was alleged that by virtue of such public use respondents had impliedly dedicated the property to the general public or in the alternative that the public had acquired an easement thereon by prescription or by custom. It was also alleged that the wall interfered with the public trust in which the waters of the lake are held. After a trial to the court sitting without a jury, the people of the state of Idaho were adjudged to have no right or interest whatever to the property. The requested injunctive relief was denied, and judgment was entered in favor of respondents. This appeal followed.
No governmental agency is in any way affiliated with this litigation and no rights of the State in its capacity as sovereign are concerned here. Nor does the City of Coeur d'Alene or Kootenai County claim any interest to this property. The action is brought by the Prosecuting Attorney for Kootenai County, but is brought solely on behalf of the people at large, i. e., the general public of the state.
A previous action relating to this property has been brought by the State of Idaho through the State Land Board and the Attorney General's office. The State there alleged that the seawall constituted a trespass upon the bed of the lake, but this claim was dismissed upon the stipulation that the wall in fact was situated entirely upon respondents' private property. The State also I.C. § 31-2604(1) provides that it is the duty of the prosecuting attorney:
alleged the existence of public rights in and to the property by an implied dedication and/or an easement by prescription. But these claims were also dismissed upon the district court's determination that the attorney general was not the proper party plaintiff to assert such public rights. No appeal was taken by the State of Idaho from the dismissal of that action. In the present case, respondents likewise challenge the standing of the prosecuting attorney to bring the action on behalf of the people of the State of Idaho.
To prosecute or defend all actions, applications or motions, civil or criminal, in the district court of his county in which the people, or the state, or the county, are interested, or are a party; and when the place of trial is changed in any such action or proceeding to another county, he must prosecute or defend the same in such other county.
In contrast, I.C. § 67-1401(1) provides that it is the duty of the attorney general
To attend the courts of the state of Idaho and prosecute or defend all causes to which the state or any elective officer thereof, or a judge or magistrate, in his official capacity, is a party and all causes to which any county may be a party, unless the interest of the county is adverse to the state or some officer thereof acting in his official capacity, and except as otherwise provided by law.
The difference between these two statutes insofar as this case is concerned centers around the attorney general's duty to represent the state in its sovereign capacity, while the prosecuting attorney has the additional duty to represent "the people" separately from the political entity of the state or the county. This difference is not a mere accident. The first statute enumerating the duties of the attorney general included prosecution of "all actions to which the people of the Territory of Idaho are a party." 1885, Thirteenth Session, Idaho Territory, p. 31. However, in 1887 this statute was amended to eliminate representation of the people of the state separately from the state in its sovereign status. The statute has remained unchanged in this regard to this day.
We are of the opinion that the legislative grant of authority to the prosecuting attorney to prosecute actions in which "the people are interested" amounts to a statutory grant of standing in the instant case. The statute empowers the prosecuting attorney to call upon the courts of this state for vindication of public rights which for all practical purposes would otherwise go unprotected. The rights contended for here are of this nature. This court therefore holds that this action is properly brought under I.C. § 31-2604(1) by the prosecuting attorney.
Appellant claims a right on behalf of the general public of this state to use private property for recreational purposes. In order to establish such a right by prescription, a party must submit "reasonably clear and convincing proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period." West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973) (footnotes omitted). The prescriptive right cannot arise, however, if the use of the land is with the permission of the owner. West v. Smith, supra; Trunnell v. Ward, 86 Idaho 555, 389 P.2d 221 (1964); Cox v. Cox, 84 Idaho 513, 373 P.2d 929 (1962); Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961).
After hearing the testimony of some seventeen witnesses on the use of respondents' property, the trial court found "that the use herein by the public was open, notorious, continuous, and uninterrupted and with the knowledge of the defendants (respondent...
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