State v. Korrer

• Decision Date: 11 September 1914
• Docket Number: No. 18551[4].,18551[4].
• Citation: 148 N.W. 617,127 Minn. 60
• Parties: STATE v. KORRER et al.
• Court: Minnesota Supreme Court

127 Minn. 60

148 N.W. 617

STATE

v.KORRER et al.

No. 18551[4].^*

Supreme Court of Minnesota.

Sept. 11, 1914.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Injunction by the State against Eliza Korrer and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Syllabus by the Court

A meandered lake, approximately 150 acres in extent, naturally suitable for boating, bathing, hunting, fishing, and other beneficial public uses, on the shore of which is situated a village of 2,000 inhabitants, is a public or navigable body of water.

National bodies of water are classed as navigable or nonnavigable. The term ‘navigable,’ as used in this connection, has been extended beyond its technical signification. It is unnecessary that the water should be capable of commerce of pecuniary value. The division of waters into navigable and nonnavigable is but another way of dividing them into public and private waters. If a body of water is adapted for use for public purposes it is a public or navigable water.

Under the English common law the crown owned the soil under the tide water and also the soil under the water of navigable rivers up to the point reached by the flow of the tide. The soil under fresh water rivers above tide water and the soil under fresh water lakes belonged to the owners of the shore land.

In the United States each state determines for itself the question of the ownership of the soil underlying its public waters. The United States government never owned the soil under public waters, and its patent to the shore land does not pass title to the land under the water. This belonged to the states, and if the reparian owner has acquired it at all it is by the favor or concession of the state. In Minnesota the title of the proprietor of abutting lands extends to low-water mark. The title to the soil under the waters below low-water mark is held by the state, not in the sense of ordinary absolute proprietorship, but in its sovereign governmental capacity, for common public use, and in trust for the people of the state, for the public purposes for which they are adapted. This rule applies to all public waters, lakes as well as streams.

The shore owner has well-defined riparian rights in the adjacent water and the soil under it below low-water mark. These rights include the right of access, the right to accretions and relictions, the right to wharf out and the right, absolute as respects every one but the state, to improve, reclaim and occupy the surface of the submerged land out to the point of navigatility for any private purpose.

These rights are not unrestricted, but are subject to the control of the state. The state has power to conserve the integrity of its public lakes and rivers. The riparian owner has no right against the protest of the state to destroy the bed of a public lake for the private purpose of taking ore therefrom.

The question is not wholly one of interference with present public use. The fact that in the opinion of the court the portions of the lake in controversy are, during low-water mark, not capable of any substantial beneficial use does not prevent the state from objecting to its diversion to a private use foreign to the public uses of the water and the soil under it.

The fee to the soil between high and low water is in the abutting owner subject to the right of the public to use or reclaim it for public purposes. The shore owner has the right during periods of recession of water to take ore from this space, provided the state does not require it for public purposes and provided he shall not measurably interfere with the utilization of it for such prospective uses.Lyndon A. Smith, Atty. Gen., and C. Louis Weeks, Asst. Atty. Gen., for the State.

Washburn, Bailey & Mitchell, of Duluth, for certain respondents.

John Brennan, of Duluth, for respondent White Iron Lake Iron Co.

HALLAM, J.

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] 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 150 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 2,000 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] 2. Natural bodies of water are classed as navigable or nonnavigable. 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 nonnavigable 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 is navigability for any other purpose.’ Grand Rapids v. Powers, 89 Mich. 94, 50 N. W. 661,14 L. R. A. 498, 28 Am. St. Rep. 276.

‘Many, if not the most, of the meandered lakes of the state are not adapted to, and probably will never be used to any great extent for, commercial navigation; but they are used-and as population increases, and towns and cities are built up in their vicinity, will be still more used-by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city purposes, cutting ice, and other public purposes which cannot now be enumerated or even anticipated. To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot perhaps be now even anticipated.’ Mitchell, J., in Lamprey v. State, 52 Minn. 181, 199-200, 53 N. W. 1139, 1143 (18 L. R. A. 670, 38 Am. St. Rep. 541).

See, also, C., M. & St. P. Ry. Co. v. 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] 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 and 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, Davies' Rep. 149, 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....