West v. Smith

• Citation: 511 P.2d 1326,95 Idaho 550
• Decision Date: 05 July 1973
• Docket Number: No. 11044,11044
• Parties: Vernon J. WEST et al., Plaintiffs-Appellants, v. James E. SMITH and Mrs. James E. Smith, husband and wife, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 1326

511 P.2d 1326

95 Idaho 550

Vernon J. WEST et al., Plaintiffs-Appellants, v. James E. SMITH and Mrs. James E. Smith, husband and wife, Defendants-Respondents.

No. 11044.

Supreme Court of Idaho.

July 5, 1973.

J. T. Knudson, Coeur d'Alene, for appellants.

James W. Givens, Lewiston, for respondents.

McQUADE, Justice.

Vernon and Arlene West are the record title owners of Government Lot 3, Section 2 Township 47 North, Range 4 W.B.M., Kootenai County, Idaho, which lot abuts the westerly shore of Lake Coeur d'Alene, a navigable lake. Guy and Patricia Dumais contracted to purchase lot 3 and another lot from the Wests in May, 1970. The Dumaises plan to develop, subdivide, and sell the lots. Until 1935, a privately operated, commercial ferryboat ran between Harrison, Idaho, and Spokane Point, a designation which is located on the shoreline of lot 3. A county road, which was acquired by prescription, runs in a northsouth direction near the shore of lot 3 and culminates in a widened turnaround at the point where the ferry formerly docked. The road continues along the lake shore south from the turnaround, but that portion of the road is privately owned.

Since approximately 1945, a houseboat has been moored to pilings driven into the lake bed at the point where the ferryboat docked. Mr. and Mrs. James E. Smith purchased the houseboat in 1965 and have since paid personal property taxes on it and occupied it intermittently. The houseboat is connected to the shore by a catwalk two feet in width which terminates on the turnaround of the public roadway. Plaintiffs' exhibit 1, a scale drawing of the shore and the houseboat, also indicates that there is a somewhat larger floating dock structure owned by respondents interposed between the houseboat and the catwalk.

At a date not disclosed by the record, but apparently after 1890, the predecessor of the Washington Power Company raised the level of Lake Coeur d'Alene several feet by constructing a dam at Post Falls, Idaho. The record does not indicate the elevation or location of the natural high water mark of the lake before the dam was built. According to the record the Washington Power Company has generally maintained the level of the lake at approximately 2,128 feet above sea level since 1910. According to plaintiffs' exhibit 1, when the water is at the average of 2,128 feet, the edge of the water is 13 feet from the edge of the maintained portion of the turnaround. The artificial post-1910 high water mark is shown to be 7 feet further inland and thus approximately 6 feet from the edge of the maintained portion of the turnaround. The slope of the bank from the traveled edge of the turnaround to the water's edge is fairly steep. The plaintiffs' plat indicates that the side of the houseboat closest to shore is approximately 53 feet from the edge of the water at the 2,128 foot level.

The Wests and the Dumaises brought suit to compel the Smiths to move the houseboat and its appurtenances or in the alternative, to pay $10,000 damages. They allege that the maintenance of the houseboat and its appurtenances constituted an undue interference with their littoral rights. Appellant Dumais testified that the houseboat in its present position hindered his development plans. The Smiths cross-complained for an injunction to prevent the appellants from interfering with their peaceful use of the houseboat in its present location.

The parties stipulated that Mr. Madison, who owned lot 3 when the houseboat was first moored there, was aware of its existence, that the houseboat did not interfere with any use he was making of the property, and that, during his ownership, he never requested that it be removed. They further stipulated that Mr. Madison and his wife conveyed the property to the Lafferty Transportation Company, a corporation, (name later changed to L. T. Land Company) in March, 1959, and that during the corporation's ownership of the property, the then occupiers of the houseboat would notify the corporation when logs which the company was storing in the bay got loose. They further stipulated that Vernon and Arlene West acquired lot 3 in September, 1968, and that the houseboat did not interfere with any use they were making of the property until they contracted to sell it to the Dumaises.

The following findings and conclusions of the district court are undisputed. The houseboat and the pilings to which it is moored are located below the natural high water mark of the lake on lands belonging to the State of Idaho. (This finding appears based on evidence not in the record before us.) Appellants' littoral rights include the right of access to the lake without unreasonable interference from other persons entitled to use the navigable waters of the lake. The county road easement does not sever appellants' land or cut off their right of access to the lake along that portion of the shore of lot 3 traversed by the road.

However, the appellants contend that the district court erred in making these further findings and conclusions: The terminus of the county road (the turnaround) is at the water's edge. The houseboat does not unreasonably interfere with the appellants' right of access to the lake. The only point where the appellants are hampered in obtaining access to the lake is at the point where the walkway from the houseboat comes to land on the public roadway. The respondents are making use of a public way as a means of ingress and egress to the navigable waters of the lake. Because the houseboat has been maintained in its present location for over 20 years, and was there when the Dumaises contracted to purchase the property, the appellants are estopped, and barred by the statute of limitations, from demanding removal of the houseboat.

From the decree of the district court denying them both injunctive relief and damages, the Wests and Dumaises have appealed. The appellants assign error to findings and conclusions of the district court other than those enumerated above, but an examination of those alleged errors is not necessary for a resolution of this case.

One of the salient features of the shores of navigable lakes is the convergence of the rights and interests of the state, the public and the littoral landowner. The State of Idaho holds title to the beds of all navigable bodies of water below the natural high water mark for the use and benefit of the whole people. ¹ Ordinarily, in Idaho, a riparian owner (on a navigable river or stream) or a littoral owner (on a navigable lake) takes title down to the natural high water mark. ² On this appeal, the respondents seem to urge that the long-continued maintenance of Lake Coeur d'Alene at its artificial level has conferred title to the lake bed, up to the artificial high water mark on the State of Idaho. However, ownership of title to the lake bed between the natural and artificial high water marks is immaterial to our decision.

Appurtenant to his ownership of lake front property, the littoral landowner normally possesses certain littoral rights. These include the right of access to the water, ³ and, subject to state regulation, ⁴ the right to build wharves and piers in aid of navigation. ⁵ The right of access has been said to be a valuable right and, 'in many instances * * * the controlling aspect of the value of (littoral) lands.' ⁶

The decision of the district court is implicitly based on two alternate grounds. First, that the Smiths, in mooring their houseboat in its present position, are merely exercising a right which is incident to the public right of navigation, i. e. docking on a public lake with a catwalk connecting the houseboat to the public road. The alternate implied basis of the district court's decision is that the Smiths have acquired a private prescriptive right against the appellants and that the appellants are estopped from demanding the removal of the houseboat. We will first consider whether the Smiths are entitled to maintain the houseboat and catwalk in place by virtue of their membership in the navigating public. It must be noted here that the Smiths do not claim a right of moorage at that point as successors of the ferryboat proprietors.

Subject to regulation by the state, the public is entitled to use the waters of Lake Coeur d'Alene for navigational and recreational purposes. ⁷ The right of the general public to navigate on navigable waters has been said to include the right of temporary anchorage. ⁸ We will assume that the public has the right to navigate on the waters of a navigable lake regardless of who holds title to the land under a particular part of the water. ⁹ There is substantial and competent evidence to support the district court's finding that the county road right-of-way at the location of the turnaround extends to the water's edge and this finding will not be disturbed. ¹⁰ However, the fact that a public roadway adjoins waters on which the public has a right to navigate, does not give one member of the public, acting solely for his private benefit, the right to install a fixed structure from the roadway into the water, which permanently interferes with the littoral owner's right of access to the lake from that point. ¹¹

The littoral owner's right of access to the lake, free from unreasonable interference, attaches to all points of his shoreline, ¹² and in the case before us, the district court came to the undisputed conclusion that appellants' right to access to the lake was not extinguished by the county roadway easement. A fixed structure connecting a houseboat to the shore, erected by a private person for his own benefit, that permanently and continuously cuts off the littoral owner's access to the lake at that point constitutes an unreasonable interference with the upland owner's littoral rights and may properly be enjoined. ¹³ To permit the Smiths to maintain their catwalk in its present position solely on the basis that they are exercision a right belonging to...