State v. Kuluvar

• Decision Date: 04 October 1963
• Docket Number: No. 38903,38903
• Citation: 123 N.W.2d 699,266 Minn. 408
• Parties: STATE of Minnesota, Respondent, v. H. L. KULUVAR, Appellant.
• Court: Minnesota Supreme Court

Page 699

123 N.W.2d 699

266 Minn. 408

STATE of Minnesota, Respondent, v. H. L. KULUVAR, Appellant.

No. 38903.

Supreme Court of Minnesota.

Oct. 4, 1963.

Syllabus by the Court

1. Where a judgment of conviction entered upon a verdict remains unexecuted in an essential part, there is no waiver of the right to appeal from the judgment.

2. The international boundary waters of Rainy Lake are subject to concurrent regulation by the state and the International Joint Commission created by the 1909 Treaty of Ghent between the United States and Great Britain; but the mere fact of overlapping jurisdiction over such waters does not forbid state regulation of them in the absence of proof that such regulation conflicts with the exercise of jurisdiction by the dominant Federal authority.

3. Minn.St. 105.42, an integral part of the water resources law of Minnesota (§§ 105.37 to 105.55), imposing criminal sanctions for interfering with public waters by any change in the cross-section of such waters detrimental to any public use or enjoyment to which the waters may be susceptible, is not an unconstitutionally vague penal statute, nor does it deprive a riparian owner of his property without due process of law.

4. The evidence is not sufficient to support a judgment of conviction for a violation of Minn.St. 105.42 where the evidence shows only that a change was made in the cross-section of public waters but does not show that such change was detrimental to the public interest.

Mandt Torrison and Bundlie, Kelley & Torrison, St. Paul, Eugene T. Williamson, International Falls, for appellant.

Walter F. Mondale, Atty. Gen., Frank J. Murray, Deputy Atty. Gen., Lawrence J. Vaubel, Sp. Asst. Atty. Gen., St. Paul, John D. Furuseth, County Atty., International Falls, for respondent.

ROGOSHESKE, Justice.

Defendant appeals from a judgment of conviction following a verdict finding him guilty of violating Minn.St. 105.42, relating to interference with public waters subject to state control. Defendant is a partner in the operation of a resort located on a bay of Rainy Lake known as Jack Fish Bay. The resort, Northernaire Floating Lodges, is situated on five platted lots, a part of Forest Point, which the partnership purchased from the state through Koochiching County in September 1957. Each lot is 100 feet in width, the total being 500 feet from east to west. The lengths of the lots vary. Each begins at a dedicated east-west access road and runs south to the irregular shoreline of the lake. Defendant's most easterly lot, Lot 35, extends a substantial distance farther into the lake than the other lots, forming a point where its easterly boundary extends to the shoreline. From this point, the shoreline of this lot recedes sharply inland toward the west to Lot 34, the water in front of this lot presumably being quite shallow. Lot 36, the west line of which is the east line of defendant's tract, is also a part of the point, the shoreline of which recedes slightly inland toward adjoining Lot 37.

The waters of Rainy Lake were made international boundary waters by the Webster-Ashburton Treaty of 1842. The water levels are controlled through the dams of the O & M Paper Company and are subject to regulation and control by the International Joint Commission, consisting of six members, established by the Treaty of Ghent made by the United States and Great Britain in 1909. Sometime in 1958, defendant obtained a permit from the United States Corps of Engineers to improve the floating of boats into his resort. The permit was not offered into evidence and we are not informed of its precise language and purpose, but it is unchallenged in the record that under this permit defendant dug a channel adjacent to the easterly boundary line of Lot 35 for the purpose of providing a flotation way for watercraft. From the testimony and exhibits introduced, it appears that the channel was constructed by excavating part of Lot 35 for about 300 feet. The evidence does not disclose to what extent, if any, the natural point of Lot 35 was extended into the waters of the bay. The excavated materials were deposited upon the easterly part of Lot 35 against cribbing or pilings which were placed along the easterly boundary line of defendant's tract, creating what might be described as a wharf. As a survey map indicates, numerous large pilings were also placed around the point and three rows extended along the westerly edge between the wharf and the channel. The work of originally constructing the channel was not included in the charge against defendant. About November 28, 1960, and again in March 1961, admittedly without a permit from either Federal or state authorities, defendant employed the contractor who dug the original channel to clean it out. This contractor, called by the state, testified that he spent more than a week in removing ice, rock, muskeg, and clay from the channel bed which was then mainly below the surface of the ice and water. The materials removed were deposited on both sides of the channel, that on the east being placed on the wharf previously described and that on the west forming an island in front of Lot 34 parallel to the channel and extending beyond the point of Lot 35. The channel lay between the wharf and the island. When the survey from which the map was drawn was made on March 23, 1961, the island created measured 300 feet in length and at no point was it less than 35 feet in width. Its highest point above the water level was in excess of 10 feet. The highest point above the water level of the wharf was about 7 1/2 feet. The record does not reveal the height of the wharf as it existed before the operations in November and March. The contractor explained that he had been unable to do a 'good job' originally because of the large amount of rock, and that his efforts in November and March were for the purpose of 'just cleaning out the old channel' and not to dig a new one.

This activity formed the basis of the charge filed against defendant. The proceedings appear to have been provoked by the complaints of the owner of Lot 36, adjacent to which the wharf was created and against the west line of which some of the additional materials removed were deposited. The complaints resulted in an investigation by the local game warden and thereafter this prosecution was instituted. The information alleged that on or about November 28, 1960, defendant 'did wrongfully and unlawfully change the cross-section of certain public waters, to wit: Rainy Lake, by then and there digging and moving from one place to another from the bed of said lake certain soil, sand, gravel, and other materials therein,' without previously obtaining a written permit from the commissioner of conservation in violation of § 105.42.

Section 105.42 is one of the sections of our water resources law (§§ 105.37 to 105.55) revised and codified after a legislative interim study in 1947. The pertinent provisions of § 105.42 are:

'Except in the construction and maintenance of highways when the control of public waters is not affected, it shall be unlawful for the state, any person, partnership, association, private or public corporation, county, municipality or other political subdivision of the state, to * * * in any manner * * * change or diminish the course, current or cross-section of any public waters, wholly or partly within the state, without a written permit from the commissioner previously obtained.'

The trial court instructed the jury that the charge required proof 'first of all: that Rainy Lake and particularly Jack Fish Bay is public water; secondly, that the defendant did the work here complained of in the lake bed of Rainy Lake so that it changed the cross-section, and by changing the cross-section it would be widening, filling, or deepening--that is the changing of the contour of the bed of the lake; third, that the act was committed in Koochiching County; fourth, the defendant had no written permit therefor from the Department of Conservation; and fifth, that it was against public interest.' Defendant was found guilty and sentenced to pay a $400 fine and serve 4 months in jail, his commitment being tentatively stayed upon certain conditions. Thereafter, defendant paid the fine and, after hearing before the court, was found in default of performance of the conditions and ordered committed.

1. The state moves to dismiss the appeal upon the ground that defendant waived his right to review, citing State ex rel. Weich v. City of Red Wing, 175 Minn. 222, 220 N.W. 611. It is claimed that defendant not only paid the fine, but also undertook to comply with the conditions to effect a suspension of the jail sentence, thus acquiescing in the judgment which in effect now stands fully executed. The conditions imposed required, among other things, that defendant secure a permit from the commissioner of conservation for the work already done and that he negotiate a settlement of his dispute with his neighbor. Defendant was required to report to the court within 60 days; and any unreasonable actions by third parties, as well as the efforts and good faith of defendant to accomplish compliance, were subject to further review by the sentencing court to determine finally whether commitment to jail should be ordered or suspended. At the postponed hearing, defendant related his efforts to comply and claimed that his neighbor's demands for damages or, in the alternative, for purchase of his property were unreasonable. He also testified that he understood that the state was holding his application for permit in abeyance pending his reaching an agreement with his neighbor. The court found defendant's efforts inadequate and his attitude disobedient of the court's order.

Whatever may have justified the court in exercising discretionary authority to impose a severe sentence, the conditions required to avoid commitment were most extraordinary and, to say the least, of questionable...