Whiteside v. Norton

• Decision Date: 24 March 1913
• Docket Number: 3,780,3,787.
• Citation: 205 F. 5
• Parties: WHITESIDE v. NORTON. NORTON v. TALLAS.
• Court: U.S. Court of Appeals — Eighth Circuit

205 F. 5

WHITESIDE v. NORTON.

NORTON v. TALLAS.

Nos. 3,780, 3,787.

United States Court of Appeals, Eighth Circuit.

March 24, 1913

Luther C. Harris and Alfred Jaques, both of Duluth, Minn. (Theodore T. Hudson, of Duluth, Minn., on the brief), for appellant Whiteside.

Jed L Washburn, of Duluth, Minn. (William D. Bailey, Oscar Mitchell, and Albert C. Gillette, all of Duluth, Minn., on the brief), for George W. Norton, appellee and appellant.

John B Richards, Jr., of Duluth, Minn. (Daniel G. Cash, on the brief), for appellee Tallas.

Before HOOK and SMITH, Circuit Judges, and VAN VALKENBURGH, District judge.

VAN VALKENBURGH, District Judge.

This is a suit in equity brought by George W. Norton, as executor and trustee, complainant below, against Robert B. Whiteside, E P. Alexander, and Andrew J. Tallas as defendants. For clearness and convenience, the terms 'complainant' and 'defendant' will be used in this opinion.

The St Louis river flows into the western end of Lake Superior; at its mouth it widens into an estuary presenting more than one channel and broad expanses of water, all finally flowing into the lake proper through a natural entry between two points of land called, respectively, Minnesota Point and Wisconsin Point. One of these broader expanses, nearest the main body of the lake, is called 'Superior Bay,' another to the westward 'St. Louis Bay,' and a third still farther west 'Pokegama Bay.' As might be supposed, this estuary contains islands of greater and less size and prominence. The city of Duluth, Minn., with its environments is situated upon the north shore of these waters, and the city of Superior upon the southern or Wisconsin shore.

The St. Louis river for some distance from its mouth forms the boundary line between the states of Minnesota and Wisconsin. The enabling act, for the admission of the state of Wisconsin, described its boundary as running--

'through the center of Lake Superior to the mouth of the St. Louis river, thence up the main channel of said river to the first rapids in the same above the Indian village, according to Nicollet's map.'

The later enabling act, for the state of Minnesota, used terms more general, but consistent with the former description. The complainant, Norton, has for many years past been the owner of certain lands located on the northerly or Minnesota shore of these waters, about eight or ten miles above the points forming the natural entry, to which reference has been made. The defendant Whiteside, and his predecessors in title, have for many years been the owners of an island, known as 'Big Island,' lying south of the lands of Norton, and conceded to be in the state of Wisconsin. The distance between Big Island and the Norton lands is about 2,000 feet. Some time after the survey of Big Island there began to form in the waters between the lands of Norton and Whiteside a smaller island, which has since become a distinct body of land, and which forms the subject-matter of this controversy. At that time, and at all times prior to 1899, and perhaps until 1902, the main natural channel at this point ran within a few hundred feet of the Minnesota shore, in front of the Norton lands, and north of the small island thus formed between the lands of Norton and Whiteside. This island was claimed by Whiteside as appurtenant to his holding. Several years prior to the commencement of this action the defendant Tallas settled on the small island, which for convenience will be called the 'Tallas Island.' He built a cabin on it and claims title thereto by adverse possession. Later, in the superior court of Douglas county, Wis., the defendant Whiteside brought suit in ejectment against Tallas, which suit was still pending when the present action was instituted.

In the exercise of its power to improve navigation in the interest of commerce, the government of the United States dredged an artificial channel through these waters, whereby the navigable channel was established south of Tallas Island, and several hundred feet south of the former main natural channel, which ran north of that island. This work was begun in 1899 and completed in 1902. January 27, 1910, complainant filed his bill in the Circuit Court of the United States for the District of Minnesota, at Duluth, charging that, by reason of this change of channel, the cabin of the defendant Tallas intervened between said improved navigable and navigated channel and the shore of complainant's lands, and therefore was infringing upon the riparian rights and privileges of complainant incident and appurtenant to his said lands and estate; that the defendants Whiteside and Alexander also claimed some rights in and to this island as incidental to their ownership of Big Island; that none of defendants, however, had any right, title, or interest in said small island, save only such riparian rights in the defendants Whiteside and Alexander as might be incident or appurtenant to their other lands; that the occupancy of the defendant Tallas, and the claims of all the defendants worked a cloud upon the complainant's title and estate.

Complainant prayed that it be adjudged and decreed that he is the owner in fee simple of his lands upon the Minnesota shore; that the riparian rights and privileges incident thereto, and exclusively thereto belonging, be adjudged and decreed to extend out to the navigable and navigated channel established by the government, as aforesaid, free, clear, and discharged of any claims on the part of the defendants; that it be adjudged, determined, and decreed that neither the defendants, nor any of them, have any right, title, or interest whatsoever in or to the said small island or any lands appearing above the surface of the water lying or being between said improved channel and the shore of complainant's land; that said defendants be restrained from interfering with or impairing the full enjoyment by complainant of the riparian rights and privileges thus claimed by him to be incident to the ownership of his lands on the Minnesota shore, including the full rights of access, wharfage, or other improvements which he might see fit to make to reach out to the said navigable and navigated channel.

The defendant Alexander was made a party as the owner of a small parcel of the land composing Big Island. It was stipulated that his interest should be determined by the decision as to the defendant Whiteside, and for that reason he does not appear in these appeals.

So far as shown by the record, the defendant Tallas is the only party in actual possession of the island in controversy.

The trial court found the issues in favor of the complainant against the defendant Whiteside, but dismissed the suit as to the defendant Tallas, upon the ground that complainant's proper remedy was ejectment. The defendant Whiteside appeals from the decree entered against him, and the complainant appeals from that dismissing the suit against Tallas.

The defendant Whiteside contends that the Circuit Court was without jurisdiction, for the reason that the land in controversy is in the state and district of Wisconsin, and therefore beyond the jurisdiction of the federal court sitting in Minnesota. The complainant denies this, contending that the waters flowing between complainant's and defendants' land are not the St. Louis river, but an arm of Lake Superior; therefore that the terms of the enabling act fixing the boundary line in the middle of the main channel have no application; also that, even though this be the St. Louis river, nevertheless the dredging of the artificial channel by the government operated, in law, to shift the boundary line between the states; that consequently the premises forming the subject-matter of the action are located in Minnesota. The defendant Whiteside maintains that this is the St. Louis river and not an arm of the lake, and that in either event the middle of the main channel is the boundary line. The defendant Whiteside further claims that the title to the bed of the stream, to the center of the main natural channel, and therefore to all islands formed thereon, vested in him by virtue of his ownership of Big Island, and that such title cannot be divested by such artificial and arbitrary processes. This is denied by complainant, who asserts that the shore owner takes no title to the bed of a stream, but that such title vests in the states in their sovereign capacity; that all such titles are subject to the paramount right of the government to improve navigation, even to the extent of changing the boundaries between states, by altering the location of the navigable channel; that complainant's right of access, as a riparian owner, entitles him to extend not only to the natural navigable channel, but to an established navigated channel in front of his lands.

We are of opinion that the body of water at the locus in quo is a part of the St. Louis river-- a navigable river, as understood in the law. The reasons leading to this conclusion are several:

(a) The enabling act admitting the state of Wisconsin, and defining its boundaries, thus provided:

'Thence down the main channel of the Montreal river to the middle of Lake Superior, thence through the middle of Lake Superior to the mouth of the St. Louis river, thence up the main channel of said river to the first rapids in the same above the Indian village, according to Nicollet's map.'

It is conceded that the St. Louis river flows into Lake Superior at some point. That point is its mouth, and was so well defined to the legislative eye that it was referred to as a natural monument in describing the boundary of the new state. From the exhibits presented, the entry between Minnesota point and Wisconsin point conforms most logically to this...