State v. Korrer
| Decision Date | 11 September 1914 |
| Docket Number | Nos. 18,551 - (4).,s. 18,551 - (4). |
| Citation | 127 Minn. 60 |
| Parties | STATE v. ELIZA KORRER and Others.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county against Eliza Korrer, Edmund N. Korrer, Annie L. Korrer, John Brennan, White Iron Lake Iron Co., Albert B. Coates, Martha R. Coates, and Euclid Iron Mining Co. to enjoin defendants from interfering with the public waters of Longyear lake, from removing the iron ore under said lake and the natural waters thereof, from removing the iron ore from under that part of the bed of said lake which would be covered by the waters thereof in the natural condition of said lake at the time of the commencement of the action but for the erection by defendants of the embankment or dump mentioned in the complaint, and for an accounting as to any ore unlawfully removed prior to or pending the action. The case was heard before Cant, J., who made findings and ordered judgment in favor of defendants. From the judgment entered pursuant to the order for judgment, plaintiff appealed. Reversed.
Lyndon A. Smith, Attorney General, and C. Louis Weeks, Assistant Attorney General, for appellant.
Crassweller, Crassweller & Blu, Washburn, Bailey & Mitchell, John Brennan and T. L. Doyle, for respondents.
John R. Van Derlip, as amicus curiæ, filed a brief supporting the position of respondents.
The bed of Longyear lake contains deposits of iron ore both between high and low-water mark and below low-water mark. Defendants own land abutting on the lake. Upon their taking steps to remove the ore beneath the bed of the lake, and for that purpose to fill in the lake bed from the shore to a point some distance below low-water mark, the state brought this action to restrain them. Both the state and the defendants claim a proprietary interest in the ore underlying the bed of the lake. The real issue involved is whether the state has such interest in this body of water and the bed thereof that it may enjoin the defendants from filling in and reclaiming the bed of the lake for the purely private purpose of removing the underlying ore. We shall address ourselves to this issue.
A consideration of this question requires some examination into the character of this lake and into the history of the rights of the government and of the riparian owner in waters of this character.
1. The first question is: What is the character of this body of water? The trial court found "that Longyear lake is a meandered public body of water * * * having an area of more than one hundred and fifty acres in extent * * * that within the entire natural limits of said lake the same during high water is naturally suitable for boating, bathing, hunting, fishing and other beneficial public uses; that on the shore of said lake and in the main on the westerly shore thereof * * * is situated the village of Chisholm, having a population of more than two thousand inhabitants." The finding in substance is that these facts constitute Longyear lake a "public body of water." This finding is sustained by the evidence.
2. Natural bodies of water are classed as navigable or non-naviigable. The term "navigable," as used in this connection, has been extended beyond its technical signification and embraces many bodies of water not navigable in the ordinary sense of that term. The division of waters into navigable and non-navigable is but another way of dividing them into public and private waters, and navigable waters embrace all bodies of water public in their nature. It is not necessary that the water should be capable of commerce of pecuniary value. If a body of water is adapted to use for public purposes other than commercial navigation, it is held to be public water, or navigable water, if the old nomenclature is preferred. Boating for pleasure is considered navigation, as well as boating for mere pecuniary profit. "Navigability for pleasure is as sacred in the eye of the law as * * * navigability for other purposes." City of Grand Rapids v. Powers, 89 Mich. 94, 50 N. W. 661, 14 L.R.A. 498, 28 Am. St. 276. Mitchell, J. in Lamprey v. State, 52 Minn. 181, 199, 200, 53 N. W. 1139, 1143, 18 L.R.A. 670, 38 Am. St. 541. See also Chicago, M. & St. P. Ry. Co. v. City of Minneapolis, 115 Minn. 460, 133 N. W. 169, Ann. Cas. 1912D, 1029.
Applying these rules, it must be held that this lake is a public body of water and is governed by the law applicable to public or navigable fresh water lakes.
3. The next question is: What are the respective rights of the state and the riparian proprietors in such public waters? It has been said that under the early common law there was no assertion of public right in the waters or the soil under them, and that all land under water which could be profitably used passed by the grants of the crown into private ownership. Farnham, Waters & Water Rights, § 36, p. 166. This may be true, but this private right received no recognition in any early judicial decision and received very little attention from the early commentators. In the reign of Elizabeth a lawyer named Digges advanced the theory that the proprietorship of all tide water and tide land, together with accretions and relictions, was in the crown, and that all use of the shore below high-water mark by the adjacent proprietors was illegal. Farnham, Waters & Water Rights, § 36, p. 167. The assertion of this alleged right by the crown was much opposed, and the claim was modified by royal concession and later by legislation, so that the title of the crown was to be considered as held for public uses and subject to certain riparian rights. The theory that the crown owned the title to the soil of navigable rivers up to a point reached by the flow of the tide of the sea was probably an outgrowth of this same doctrine. As applied to rivers this theory received judicial recognition early in the reign of James I, when, in the case of The Royal Fishery of the Banne, Davis Rep. 55, 56 (Moore, H. & L. of Foreshore & Seashore, 248) it was held that "every navigable river, so high as the sea flows and ebbs in it, is a royal river." See also Bulstrode v. Hall, 1 Sid. 148. Whatever its origin, the rule that the soil of tidal navigable rivers belongs to the crown has been consistently followed for several centuries as the common law of England. Lord Adv. v. Hamilton (1852) 1 Macq. (H. of L.) 46.
This doctrine did not apply to navigable fresh-water streams above tide water or to fresh-water lakes. There were few such streams and practically no such lakes in England, and the law applicable to such bodies of water received scant attention. Apparently there were no judicial decisions clearly defining rights in fresh-water lakes or rivers prior to the separation of the colonies from England. It is worthy of note that Blackstone, in his Commentaries published on the eve of the Revolution, makes no mention of this subject at all. After the Revolution, and in 1787, there was published a manuscript, written more than 100 years before by the eminent jurist and commentator, Sir Matthew Hale. This contained the following: De Juris Maris, Part I, c. I. These views were not at once accepted as settling the law of England. In 1863 doubt was expressed as to whether the soil of lakes belongs to the owners of the land on either side "ad medium filum aquæ." Marshall v. Ullewater Steam Navigation Co. 3 Best & S. 742; and as late as 1883 Lord Denman said in Williams v. Wilcox, 8 Ad. & El. 336, that the question whether the soil of public navigable rivers above the flow of the tide was at common law in the crown or the owners of the adjacent land was "a point perhaps not free from doubt." The views of Sir Matthew Hale are now, however, recognized as the common law of England. Hindson v. Ashby (1896) L. R. 2 Ch. Div. 78; Orr Ewing v. Colquhoun, L. R. 2 App. Cas. 839; Scott v. Napier (H. of L.) 7 Ct. of Sess. Cas. 35 (1869) (a Loch of Scotland); Bristow v. Cormican (1878), L. R. 3 App. Cas. 641 (a Lough of Ireland).
4. In the United States the rule is not uniform. The common law of England, as it existed at the time of the separation of the colonies, is followed here as far as applicable to our conditions. But, in the first place, the common law of England on this subject was not then well settled, and, secondly, the authorities are not agreed as to whether conditions are so similar here in this respect as to require the adoption of what is now established as the English rule. A classification of waters based upon the ebb and flow of the tide has been rejected in many cases as unsuited to our conditions, and it was long ago said by the United States Supreme Court: ...
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