State v. Rolio

• Decision Date: 25 November 1927
• Docket Number: 4575
• Citation: 71 Utah 91,262 P. 987
• Court: Utah Supreme Court
• Parties: STATE v. ROLIO

262 P. 987

71 Utah 91

STATE v. ROLIO

No. 4575

Supreme Court of Utah

November 25, 1927

Rehearing Denied December 21, 1927.

Appeal from District Court, Fourth District, Utah County; George P Parker, Judge.

Action by the State against Sylvester Rolio. From a judgment for defendant, plaintiff appeals.

REVERSED AND REMANDED, with directions.

Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty Gen., for the State.

George Y. Wallace, of Salt Lake City, for respondent.

Ball, Musser & Mitchell, of Salt Lake City, amici curiae.

STRAUP, J. THURMAN, C. J., and CHERRY, HANSEN, and GIDEON, JJ., concur.

OPINION

STRAUP, J.

This action was brought by the state to quiet title to a portion of the bed of Utah Lake, a fresh and navigable body of water. The court below sustained a general demurrer to the complaint. The state appeals.

In the complaint it is alleged that in 1879 the government of the United States granted to Andreas Hansen a patent to all of lots 1, 2, [262 P. 989] and 3, section 5, township 7 south, range 1 east, Salt Lake meridian. No further description of the granted lots is set forth. In the description no reference is made to the lake or that the lots extended to the meander line or water's edge of the lake. It is further alleged that the defendant, by mesne conveyances, long prior to the commencement of the action, became the owner of the land described in the patent; that, when the patent was issued, and when Utah in 1896 was admitted into the Union, the land described was riparian land, located along, and contiguous to, the then existing water's edge of the lake, in the county of Utah, state of Utah; that the lake is an inland, and a fresh and navigable, body of water, wholly within the borders of the state, unaffected by tides, and navigated by boats carrying freight and passengers; that, prior to the commencement of the action, and since Utah was admitted into the Union, pumping operations were carried on by divers persons and corporations on the lake whereby large quantities of water of the lake were removed, and the level of the lake thereby lowered, so that portions of the bed of the lake became unwatered, and the dry land rendered susceptible of farming and pasturage; that among such unwatered portions of the bed of the lake was an irregular strip running west 38 rods, south 80 rods, west 10 rods, south 80 rods, west 80 rods, to the water's edge of the lake, and thence north, following the water's edge to the place of beginning; that such strip is located between the land described in the patent and the present water's edge of the lake, but, when the patent was issued and Utah admitted into the Union, such strip was covered by the waters of the lake, "but because of said operation of said pumps, and not by accretion or reliction, the said strip became unwatered, and dry land suitable for farming and pasturage."

It is then further alleged that, pursuant to the enabling act approved 1894, Utah was admitted into the Union in January, 1896, on an equal footing with the original states, and that, upon its admission into the Union, it became "vested with the fee-simple title to the beds of all navigable waters located within its boundaries, including the entire bed of Utah Lake, and that it at all times since was and now is the owner in fee simple, in possession and entitled to the sole possession and the exclusive use, possession, and enjoyment of all said lands, 'described in the strip,' and of all other lands constituting the bed of said lake and located opposite said land" described in the patent. Then it is alleged that the defendant, as a riparian owner of land located contiguous to the lake, claims an estate and title to the bed of the lake and to the center of it, including the strip lying between the present water's edge of the lake and the land described in the patent, and that the defendant asserts that the state at no time acquired any, and that it had no right, title, or interest in or to the bed of the lake, but that such right, title, and interest to the center of the lake belonged to, and vested in, riparian owners of lands bordering on the lake; but the state further alleged that such claim of title on the part of the defendant was unfounded, and reasserted its own right, title, and interest in and to the whole of the bed of the lake, including the strip heretofore referred to, and prayed that the defendant be required to set forth whatever claim or interest he has, and that it be adjudged that his claim is groundless and unfounded.

It will be observed that in the complaint it is not averred that the defendant claimed title or possession of the strip, or of any unwatered land, under the doctrine or because of accretion or reliction, but on the ground that the defendant, as a riparian owner of land bordering on the lake, owned the bed of the lake oposite his land to the center of the lake, including the strip.

The demurrer, for purposes of the demurrer, of course admitted all the material allegations well pleaded in the complaint. Therein it is alleged that the state is the owner, in possession, and entitled to the possession, of the entire bed of the lake, including the unwatered strip, In an action to quiet title, the plaintiff may allege his title, ownership, and possession in general terms, and thereunder may prove whatever title he has. The demurrer therefore admitted such general allegations, unless the plaintiff, by other or specific averments, destroyed or materially impaired them. If a plaintiff, after alleging title in general terms, attempts to set out the facts or source of his title by specific averments, ordinarily the latter may be regarded as controlling the former, especially if the latter are inconsistent with the former. The only particulars in which the state has attempted to specify its title, or, rather, its source of title, are the allegations that it, in its sovereign capacity, upon its admission into the Union, became the owner in fee, and entitled to the possession of all lands underlying navigable waters within the state. Such allegations of source of title, being rather a statement of a legal conclusion, would not be admitted by a general demurrer, if the conclusion, as matter of law, were erroneous. But this court will judicially know what the law is in that respect. And what is judicially known may not be controverted by pleadings, or made issuable by them. We judicially know that, when Utah was admitted into the Union, title in fee to all lands underlying navigable waters within the state vested in the state in its sovereign capacity, and that such lands may be disposed of as it may elect, subject only to the paramount power of Congress to control such waters for purpose of navigation in commerce among the states and with foreign nations, a factor or element not here present. That is well settled. United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465; Commonwealth of Massachusetts v. State of New York, 271 U.S. 65, 46 S.Ct. 357, 70 L.Ed. 838; Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771; Brewer-Elliott Oil & Gas Co. v. United States , 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; Knight v. United States Land Ass'n, 142 U.S. 161, 12 S.Ct. 258, 35 L.Ed. 974; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 838, 35 L.Ed. 428; Packer v. Bird, 137 U.S. 661, 11 S.Ct. 210, 34 L.Ed. 819; Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224; Escanaba & L. M. Tansp. Co. v. Chicago, 107 U.S. 678, 2 S.Ct. 185, 27 L.Ed. 442; Northern Pac. R. Co. v. Hirzel, 29 Idaho 438, 161 P. 854. As shown by the authorities, such title is not acquired by any express grant of Congress, but by operation of law as an incident to the sovereignty of the state. The proposition is not disputed. In his brief the respondent admits that "title to the beds of navigable waters became lodged in the state on its admission into the Union." And in the brief of amici curiae, more properly called amici rei, it is stated:

"Utah Lake is navigable. The complaint so alleged and the general demurrer admits it. The title to the bed vested in the state of Utah at statehood. It is so alleged in the complaint, admitted in the demurrer, and conceded by the respondent."

Thus the general allegations in the complaint as to the state's title and ownership are in no particular impaired, but strengthened, by the further allegations as to the state's source of title. If the defendant, willing to admit that the state on its admission into the Union was vested with title and ownership of the bed of the lake, but desires to traverse the state's present title, ownership or right of possession, or to claim that the state, since statehood, in some manner has parted with, or become divested of, title, or that the defendant since acquired a right or title superior to that now claimed by the state, he is required to show that by answer or counterclaim. It of course is not claimed that the general demurrer could serve any such purpose.

If we correctly understand the brief and argument of the respondent and of his friends, it in effect is claimed that notwithstanding the general allegations of present title and ownership in the state, sufficient other allegations are therein made to show that the defendant, as a riparian owner, and not the state, has title to the bed to the center of the lake, including the strip. This, as we understand, is based on the allegations of the complaint that, when the patent from the government was issued to the defendant's predecessor in interest, the lands described in the patent were riparian lands, located along, and contiguous to, the then existing water's edge of the lake, from which it is...