State ex rel. Thompson v. Parker

• Decision Date: 26 November 1917
• Docket Number: 6
• Parties: STATE ex rel. THOMPSON v. PARKER
• Court: Arkansas Supreme Court

200 S.W. 1014

STATE ex rel. THOMPSON v. PARKER

132 Ark. 316

No. 6

Supreme Court of Arkansas

November 26, 1917

Appeal from Crittenden Chancery Court; Geo. T. Humphries Chancellor; reversed.

Decree reversed and cause remanded.

E. L Westbrooke, for appellant.

1. Horseshoe is a navigable lake. 119 Ark. 377.

2. The water and beds of navigable lakes and the fish and fowl therein are the property of the State. 3 How. (U.S.) 212; 20 Id. 84; 107 U.S. 678; 206 Id. 46; 146 Id. 387; 242 Id. 272, and many others. 119 Ark. 383; 88 Id. 578; Kirby's Digest §§ 4108, 4082, etc.; 16 Peters, 367; 3 How. (U.S.) 212; 209 U.S. 447, etc.; 53 Ark. 314; 29 Cyc. 291.

3. Happy Jack, Mud and Clear Lakes are State property. 53 Ark 314; 119 Id. 383.

4. Under the law the present level of the lake is the natural level, where the level of a navigable lake is maintained by artificial means, the rights of the public are correspondingly extended. The State acquired title by prescription. 50 L. R. A. 836; 70 N.W. 115; 74 Id. 185; 91 Am. St. 965; 119 Ark. 383; 104 S.W. 819.

5. The right of the public to hunt and fish is settled. 56 Ark. 267; 54 Am. Dec. 764; 45 L. R. A. 475; 10 Am. Dec. 356; 21 Id. 89; 60 L. R. A. 484; 19 Cyc. 999; 58 Am. St. 33; 53 Am. St. 293; 31 Ann. Cases 777, and many others. See also 11 R. C. L. 1016, (3) 12 Id. 668, etc.

Brown & Anderson and Block & Kirsch, for appellees.

1. The submerged lands were initially land and not lake-bed. 119 Ark. 331, 379; 77 Id. 338. They belong to appellee club.

2. The public has acquired no rights by prescription. 119 Ark. 383, 379, etc.; 75 N.E. 783; 148 P. 1073. The right to hunt and fish is a property right. 73 Ark. 235; 55 A. 656; 3 Am. St. 152, etc. To acquire a prescriptive right, there must be an open, definite continuous use, adverse to the owner for seven years. 47 Ark. 66; 79 Id. 5; 105 Id. 460. It must be proven. 61 Id. 464; 47 Id. 277; 76 Id. 538. Every finding of the chancellor is sustained by the evidence and should be affirmed.

WOOD J. McCULLOCH, C. J. concurring.

OPINION

WOOD, J.

Horseshoe Lake, doubtless so named because of its shape, is a large body of water situated in Crittenden County, Arkansas. The Five Lakes Outing Club, of which appellees are the officers and trustees, is the owner of a large body of land within the peninsula of the lake, bordering on its inner rim. The inner bank of the lake is low and sloping, while the outer bank is high and clearly defined.

In 1905 the Levee Board of the St. Francis Levee District built a levee across the only outlet for the waters of the lake during times of high water and overflow. This levee caused the waters of the lake to extend and permanently submerge approximately one thousand acres of appellees' lands, whereby same have become a part of the bed of the lake. This area, being frequented by fish and wild fowl, is a favorite resort for hunting and fishing, and is therefore popularly known as "Happy Jack," is so designated in this record, and hereafter, for convenience, will be so called.

In 1911 the Outing Club attempted by siphon to lower the waters of Horseshoe Lake to their former level and thereby to restore Happy Jack to the condition that existed prior to the building of the levee, but the siphon was a failure, and the appellees now concede that the waters covering Happy Jack cannot be removed therefrom in any legitimate way. Appellees contend that prior to the building of the levee the highwater mark of Horseshoe Lake did not extend far enough to include Happy Jack and make it a part of the navigable waters of such lake; that they were therefore the owners of Happy Jack, and as such have the right to exclude the public therefrom for any and all purposes. They contend that the building of the levee in no manner affected their title and the rights incident thereto.

Appellees further contend that if it should be held that Happy Jack is a part of the bed of Horseshoe Lake, and that appellees have no right to fence the same and thus exclude the public from the use thereof for navigation, that they, nevertheless, as riparian owners, would have the right to exclude the public from the use thereof for all other purposes, and that a court of equity should mold a remedy to protect this right. The appellant challenges these contentions, hence this suit.

The first question is, was Happy Jack, prior to the building of the levee, a part of the bed of Horseshoe Lake? This is a mixed issue of law and fact.

The testimony for the appellees tended to prove that as early as 1834 there was an official survey of the townships in which Happy Jack is located. The plats and field notes of that survey show that Happy Jack was surveyed as lands and sectionized and divided into the usual government sub-divisions; that Happy Jack, at that time, was covered with a growth of black thorn, cottonwood, maple and honey locust, and had an undergrowth of vines and briars; that this undergrowth extended up to the border of the lake as then meandered by the government surveys and was over all of Happy Jack; that Happy Jack was selected under the Swamp Land Grant and was sold to various parties from whom, through mesne conveyances, appellees deraigned their title; that they had been paying taxes on and claiming to have possession of Happy Jack ever since their purchase; that from July until the winter rains set in Happy Jack was dry and people rode and walked over the same.

The testimony for appellant tended to prove that prior to 1905, and during those years when there was no dam across the outlet for the waters of Horseshoe Lake, from about Christmas until July, Happy Jack was covered with water, and between July and Christmas the land, though dry on the surface, was boggy.

Maps and plats made by civil engineers and surveyors, and photographs made by competent photographers, were in evidence. The latter, however, were taken after the levee was built and since the litigation arose concerning Happy Jack. While they show Happy Jack from various angles as it appeared when these photographs were taken, they do not reveal the appearance of Happy Jack before that time.

In St. L., I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, we defined "high-water mark" and prescribed the test for ascertaining it as follows (quoting syllabus): "The high-water mark of a navigable stream, the line delimiting its bed from the banks, is to be found by ascertaining where the presence and action of water are so usual and long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil."

Applying the above to the testimony in this record, we hold that Happy Jack, prior to the building of the St. Francis Levee, was not a part of the bed of Horseshoe Lake. The character of the undergrowth and the nature and condition of the soil itself prior to that time were such as to give it a distinctive character as land rather than water. The high-water mark delimiting the line between the bed of the lake and its banks did not extend far enough out to embrace Happy Jack and thus render it a part of the bed of the lake. The title to Happy Jack at that time, therefore, was in the appellees and not in the State. Appellees at that time would have had the right, by delimiting and enclosing this territory, to exclude the public from access thereto for any and all purposes.

The next and only remaining question is, what effect, if any, did the building of the St. Francis Levee have upon the title of appellees and their rights as riparian proprietors? The facts concerning this are already stated; they are undisputed, and this issue therefore is purely one of law.

The State, as trustee for the public, has acquired title to Happy Jack by prescription. This is so because when the St. Francis Levee District, a governmental agency, built the levee such levee caused Happy Jack to become a part of the bed of Horseshoe Lake. This condition, notwithstanding the efforts put forth by appellees to counteract it, has already existed for more than seven years, and appellees admit must continue to exist for all time to come. Under such circumstances the artificial level of the lake to high-water mark must be regarded as the natural level, and treated as such in determining the title and rights of riparian owners whose lands have thus been made a part of the permanent lake bed.

In Diana Shooting Club v. Lamoreux, 114 Wis. 44, 91 Am. St. Rep. 898, 905, 89 N.W. 880, it is said: "True, also, if an artificial lake is created, or artificial level of a natural lake is caused by the erection of a dam, and such condition is allowed to exist adversely for the full statutory period necessary to change the ownership of the land affected thereby, the former owner thereof can not thereafter object to a continuance of such condition. By operation of the statute of limitations the artificial condition is thus stamped with the character of a natural condition, and the title to the lands covered by the waters or the lake is deemed to have passed from private ownership to the same trust as that of lands covered by the waters of natural navigable lakes."

It is held in the well considered cases of Railway v Ramsey, supra, and Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378, that the title to the bed of navigable waters in our State, that is, the title to the bed of such waters to high-water mark, is in the State. The character of such title is well expressed in the case of Pewaukee v. Savoy, 50 L. R. A. 836, 103 Wis. 271, 79 N.W. 436, as follows: "Upon the admission of the State into the Union the title to such lands, by operation of law, vested in it in trust to preserve to the people of the State forever the...