State v. Sorensen

• Decision Date: 22 February 1989
• Docket Number: No. 87-600,87-600
• Citation: 436 N.W.2d 358
• Parties: STATE of Iowa, Appellant, v. Harry C. SORENSEN, et al. Appellees.
• Court: Iowa Supreme Court

Page 358

436 N.W.2d 358

STATE of Iowa, Appellant, v. Harry C. SORENSEN, et al. Appellees.

No. 87-600.

Supreme Court of Iowa.

Feb. 22, 1989.

Thomas J. Miller, Atty. Gen., and John P. Sarcone and Michael H. Smith, Asst. Attys. Gen., for appellant.

Alan H. Kirshen of Kirshen & Kratville, Omaha, Neb., for appellees Sorensen Const., Inc., Harry C. Sorensen, and William Pietrowicz.

Jack E. Ruesch and Maynard S. Telpner of Telpner, Smith, Sawatzke & Ruesch, Council Bluffs, for appellee Nat. Guar. Ins. Co.

Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, CARTER, and ANDREASEN, JJ.

LARSON, Justice.

These interlocutory appeals arise out of a quiet-title action involving several parcels of land totaling approximately 150 acres and adjoining the Missouri River in Pottawattamie County. The principal issue is whether Iowa Code section 614.17 (1983), which bars claims to real estate predating 1970, applies to the state. The district court ruled that it did, thus barring the State's claims to several of the parcels of land. We granted the State's application for interlocutory appeal. In a separate interlocutory appeal, the defendants (to whom we will refer collectively as Sorensen) argue that the court should have barred the State's claims as to all of the land, and that it was error to dismiss their counterclaims against the State. We reverse and remand on the State's appeal and affirm on Sorensen's appeal.

The State claims the land was formed as an accretion to the bed of the river and therefore was owned by the State under established principles of accretion law. Sorensen claims that Sorensen Construction, Inc., is the owner under a long chain of deeds and that any claim by the State was lost under the time limitation of Iowa Code section 614.17. Related actions for breach of warranty under the deeds in Sorensen's chains of title are not involved in this appeal.

Iowa Code section 614.17 provides, in part:

An action based upon a claim arising or existing prior to January 1, 1970, shall not be maintained, either at law or in equity, in any court to recover real estate in this state or to recover or establish any interest in or claim to real estate, legal or equitable, against the holder of the record title to the real estate in possession, when the holder of the record title and the holder's immediate or remote grantors are shown by the record to have held chain of title to the real estate, since January 1, 1970, unless the claimant in person, or by the claimant's attorney or agent, ... within one year from and after July 1, 1980, files in the office of the recorder of deeds of the county in which the real estate is situated, a statement in writing, which is duly acknowledged, definitely describing the real estate involved, the nature and extent of the right or interest claimed, and stating the facts upon which the claim is based.

....

For the purposes of this section, such possession of real estate may be shown of record by affidavits showing the possession....

Sorensen relies on this section to support his argument that the State's claim is barred. He originally asserted in district court that the State's claim was also barred by Iowa Code sections 614.29 to 614.38, our forty-year Marketable Record Title Act. The trial was bifurcated to permit the court to rule on Sorensen's statute-of-limitation arguments under both sections 614.17 and the forty-year act. The court, in ruling on that facet of the case, determined only that section 614.17 applied, noting that Sorensen's original defense based on the forty-year act had not been pursued.

Apparently assuming Sorensen had abandoned this argument, the court made no findings or rulings in regard to it. Sorensen now reasserts the argument, although he did not request the court to rule on it by filing a motion under Iowa Rule of Civil Procedure 179(b) or similar motion. We therefore could consider the argument waived on appeal. See State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984); Arnold v. Lang, 259 N.W.2d 749, 753 (Iowa 1977). In any event, based on the public trust nature of this property, as discussed later, it is doubtful that the forty-year act would bar claims to public trust property, despite the act's specific inclusion of "governmental" as well as private claims. See Iowa Code § 614.33.

I. Application of Section 614.17 to the State.

The question of whether section 614.17 applies to the State is not a new one. We have been asked on several occasions to hold that all state claims are subject to its time bar. On each occasion, however, we have decided the case on other grounds. See, e.g., Lakeside Boating & Bathing, Inc. v. State, 344 N.W.2d 217, 223 (Iowa 1984) (party raising bar of section 614.17 failed to show requisite color of title); Marksbury v. State, 322 N.W.2d 281, 287 (Iowa 1982) (failed to prove possession); State v. Simmons, 290 N.W.2d 589, 594, cert. denied, 449 U.S. 842, 101 S.Ct. 123, 66 L.Ed.2d 50 (Iowa 1980) (same).

Sorensen's argument that section 614.17 applies to all state claims confronts a title standard of our bar association which states that no state claims are subject to bar under the statute. See Standard 10.01, Iowa Land Title Standards (6th ed. July 1984) ("Iowa Code section 614.17 is a valid marketable title act, and is a bar against claims arising prior to January 1, 1970, excepting claims owned by the State or the United States.").

The State relies on this title standard and asserts that no state claims are subject to barring under this statute. As a secondary position, the State argues that its claim may not be barred in this case, because the land is "public trust" property and may not be, in effect, lost by default. Sorensen argues that the purpose of section 614.17 is to add predictability and certainty in land conveyancing and that such purposes would be frustrated if any party, including the state, were to be excepted from it. It further points to the language in section 614.17 which provides that "any interest" must be preserved in order to avoid time bar of that section.

While we give "serious consideration" to our title standards, Simeon v. City of Sioux City, 252 Iowa 779, 785-86, 108 N.W.2d 506, 510 (1961); Tesdell v. Hanes, 248 Iowa 742, 750, 82 N.W.2d 119, 124 (1957), we stop short of holding that section 614.17 is inapplicable to any claims by the State. Because of the unique nature of the property involved here, it is only necessary to decide whether that statute may be used to bar claims to "public trust" property. We do not decide the broader question of whether section 614.17 bars all types of state claims.

Ownership of the bed of the Missouri River was granted to the State of Iowa under the equal footing doctrine when Iowa was admitted to statehood. See Block v. North Dakota, 461 U.S. 273, 277, 103 S.Ct. 1811, 1814, 75 L.Ed.2d 840, 847 (1983); Montana v. United States, 450 U.S. 544, 551, 101 S.Ct. 1245, 1251, 67 L.Ed.2d 493, 501 (1981). The state owns the bed of the river from the ordinary high-water mark to the center of the stream. Nielsen v. Stratbucker, 325 N.W.2d 391, 393 (Iowa 1982); Payne v. Hall, 192 Iowa 780, 783, 185 N.W. 912, 914 (1921); and the riparian owner owns to the ordinary high-water mark. Id. Any accretions to the bed of a navigable stream, in the form of islands, also belong to the state. Nielsen, 325 N.W.2d at 393; Payne, 192 Iowa at 783-84, 185 N.W. at 914; 2 Patton on Titles § 305, at 69 (1957). Even if an island eventually joins by accretion to the riparian shore and becomes permanently attached, the state continues to retain ownership. Holman v. Hodges, 112 Iowa

714, 718-20, 84 N.W. 950, 952 (1901). These general principles of law are not challenged in the present case.

While it is said that the state owns the bed of its navigable rivers, the incidents of its "ownership" are closely circumscribed. From the time statehood was granted to Iowa, Congress has made it clear that the state's control over navigable streams is subject to certain rights of the public. The original act admitting Iowa requires that navigable waterways be given special status--one which has come to be known as "public trust" property. That act provided:

The river Mississippi, and the navigable waters leading into the same, shall be common highways, and forever free as well to the inhabitants of said State, as to all other citizens of the United States, without any tax, duty, impost or toll therefor, imposed by the said State of Iowa.

An Act for the Admission of the States of Iowa and Florida into the Union, March 3, 1845, III Iowa Code at 1190.

The public trust doctrine is said to be traceable to the work of Emperor Justinian, based on the notion that the public possesses inviolable rights to certain natural resources. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa Law Review 631, 632-33 (1986) (hereinafter cited as Lazarus). The doctrine was adopted into the English common law and embraced by nineteenth century American jurists. Id. at 636. It appears that the interest of state government in public trust land is, in a sense, only that of a steward. In fact, it has been described by one of our cases as a burden, rather than a benefit. See Peck v. Alfred Olsen Constr. Co., 216 Iowa 519, 522, 245 N.W. 131, 132-33 (Iowa 1933).

In 1842, the United States Supreme Court discussed the concept of public trust in terms of the sovereign ownership of the beds of navigable waters. See Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 10 L.Ed. 997 (1842). What sovereign ownership actually meant was addressed in the landmark case of Illinois Central Railroad v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). In Illinois Central Railroad, the Supreme Court upheld a state statute which repealed an earlier statute permitting portions of Lake Michigan's lakebed to be sold. The Court ruled...