State v. Brace
| Decision Date | 28 January 1949 |
| Docket Number | 7105. |
| Citation | 36 N.W.2d 330,76 N.D. 314 |
| Parties | STATE v. BRACE. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Upon the admission of a state to the Union it acquires the title of the United States to lands underlying navigable waters within its borders, subject to the limitations of the commerce clause of the Federal Constitution.
2. Admission to statehood vests no title in the state to lands underlying bodies of water that at the time of admission were not navigable in fact.
3. Where patents were issued to riparian owners prior to statehood, their rights thereunder with reference to navigable or non-navigable waters which are dependent on the fact of navigability are determined as of the date of the patent.
4. Owners of the title to land acquired, before or after statehood, from the United States by unrestricted patent bordering on a non-navigable lake own the lake bed in severalty, their respective titles extending to the center of the lake.
5. Meander lines are not per se boundary lines. Their purpose was to fix limits for the determination of the quantity of land to be paid for under patents issued by the United States Government.
6. The legislature may not adopt a retroactive definition of navigability which would destroy a title already vested under a federal grant or transfer to the state a property right previously acquired by a private owner.
7. Section 210 of the North Dakota Constitution does not vest title to the bed of a non-navigable lake in the State of North Dakota nor reserve to the state any right therein for the purpose of establishing a Wildlife Refuge.
Nels G. Johnson, Atty. Gen. and P. O. Sathre, and C. E. Brace Asst. Attys. Gen., for plaintiff-respondent.
Roy K. Redetzke, of Fargo, for defendant-appellant.
This is an action by the State of North Dakota to obtain title by the exercise of the power of eminent domain, to certain lands almost surrounding an inland lake or pond known as Fuller's Lake. The land sought to be obtained by the state consists of eight tracts, the present title to which is in the defendant. The purpose for which the state seeks to obtain this land is to establish a Wildlife Refuge. As a basis for the necessity of exercising the power of eminent domain, the state alleges that it is the owner of the body of water known as Fuller's Lake. The territory surrounding this lake was surveyed by the United States Government in 1872. At the time of the survey meander lines were run around the lake which shows that the area within the meander lines is about 170 acres. The surrounding lands to which the state seeks title embraces 179.41 acres and is a part of Section 12, Township 144 north, Range 55 west. The defendant is the owner of Section 12. The lake lies mostly within that section. A small portion of it which is not involved in this suit, extends westward beyond the line between Sections 11 and 12.
The defendant contends that as riparian owner of the surrounding land he is entitled to the land in Section 12 within the meander lines and that his title extends to the center of the lake from every direction except that small portion extending west of the section line. He argues that Fuller's Lake is a non-navigable body of water and that the state, therefore, has no rights therein and no title to the land thereunder.
The case was tried to the court on questions of law, and to the jury on the question of the value of the land sought to be condemned. The jury rendered a verdict for $7 per acre, making a total sum of $1,255.87. The court found that Fuller's Lake is a part of a natural water course to wit, the south branch of Goose River and is a navigable lake and the state owns all of the bed of the lake lying within the meander lines fixed by the United States survey. He ordered that the defendant convey the premises sought by the state, upon tender and payment of the amount fixed by the jury. The defendant appeals.
The state's contention with respect to the ownership of the lake is set forth in the brief as follows: 'The state claims title to the bottom or bed of Fuller's Lake on the ground that under the facts and applicable statutes it was and is a part of a natural water course, known as the North Branch of the Goose River, and a navigable lake when drained in 1909; that said lake was not lawfully drained and that the lake bottom did not become the property of riparian owners as accretion land.'
The defendant derives title to the various tracts of his riparian lands through persons who received patents from the United States Government in 1884, 1890, 1901 and 1902. Thus a part of his title is derived from the patent issued prior to statehood and the balance from patents issued after statehood.
When North Dakota became a state it acquired title to lands under all navigable waters within its borders, subject to the limitation of the commerce clause of the federal constitution. Article 1, § 8, cl. 3. State v. Loy, 74 N.D. 182, 20 N.W.2d 668. Admission to statehood vests no title in the state to lands underlying non-navigable bodies of water. Title to such lands remained in the federal government or in persons to whom it had transferred title. United States v. State of Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267. If before statehood the United States issued an unrestricted grant of land to riparian owners the patentee's title extended to the center of the adjacent non-navigable body of water. Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140; United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465; State of Oklahoma v. State of Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771. This rule is recognized by this court in Brignall v. Hannah, 34 N.D. 174, 157 N.W. 1042, and in Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622.
In support of its claim the state cites paragraph 2 of Section 61-1501, RCND 1943, which provides, "A navigable lake' shall include any lake which shall have been meandered and its metes and bounds established by the government of the United States in the survey of public lands.' and Section 61-1502 which provides, 'By virtue of its police power the state shall be vested with the control of navigable lakes which have been meandered and their metes and bounds established by the government of the United States in the survey of public lands, within the ordinary high water mark, * * *.'
These statutes came into our law in substantially their present form as a part of Chapter 229, S.L.N.D.1935. They do not purport to vest title to property in the state. Obviously they could not divest owners of their lands and transfer property to the state without the payment of due compensation under the exercise of the powers of eminent domain.
We are here dealing with titles vested by patents from the United States. Such titles cannot be affected by the declaration of navigability contained in Section 61-1501, RCND 1943. The legislature may not adopt a retroactive definition of navigability which would destroy a title already vested under a federal grant, or transfer to the state a property right in a body of water or the bed thereof that had been previously acquired by a private owner. United States v. Champlin Refining Co., 10 Cir., 156 F.2d 769. A legislative declaration that all meandered lakes are navigable will not make them so if they are not navigable in fact, as against the pre-existing rights of riparian owners, unless compensation is made to such owners for the property thus injured or taken by the state. 56 Am.Juris., Waters, Sec. 185. Thus we reach the conclusion that the state may not now successfully assert title, on the ground of navigability, to lands lying beneath non-navigable waters unless those waters were in fact navigable at the time of statehood in the absence of subsequent conveyances to the state. Where patents were issued to riparian owners prior to statehood rights thereunder with reference to navigable or non-navigable waters would be determined as of the date of the patent.
Meander lines are not per se boundary lines. Their purpose is to fix limits for the determination of the quantity of land to be paid for. They are not limitations on title. Brignall v. Hannah, supra. The St Paul & P. R. Co. v. Schurmeier, 7 Wall. 272, 19 L.Ed. 74.
We now consider the evidence as to whether Fuller's Lake was a navigable body of water at the time the patents were issued if before statehood and at the time that North Dakota became a state if issued thereafter. The test is one of navigability in fact. Roberts v. Taylor, supra. The trial court determined that the lake was navigable and, that therefore the state was the owner of the land and water within the meander line. We now turn to the evidence regarding the question of navigability.
One witness came to the vicinity in 1882. He rowed a boat on the lake, some but not very much, while engaged in pleasure and hunting. He fixes the time at about 1908. Some places he could strike bottom with seven foot oars and some places he could not. He, together with another witness, cut ice on the lake in 1903, 1904, and 1905 which they sold in a nearby town. He is corroborated with respect to both the cutting of the ice and the use of a boat by the other witness.
In 1909 a ditch was dug by means of a floating dredge connecting Fuller's Lake with the south branch of Goose River. Thereafter the water level in the lake was lowered to a considerable extent. During the drouth years of 1934 to 1936 the main body of water disappeared. The center of the lake became a marsh with the exception of a channel which was formed by the drainage ditch. A highway was later constructed along the section line extending...
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