Johnson v. Johnson

SULLIVAN, J.,

Dissenting. — I am unable to concur with the majority of the court in the main principle of law involved in this case, and would merely dissent without expressing my views if I did not consider that the rule of law applied to navigable streams of this state was so at variance with the rule as laid down by the supreme court of the United States and the supreme courts of the Pacific Coast states and many other of the leading states of this country. As I view it, the rule laid down is so at variance with the best interests and rights of the people of the state and contrary to the decisions of so many of the courts of last resort of many of the states, that I cannot permit the decision to go unchallenged and without entering my earnest protest against the doctrine therein laid down, which I think is contrary to sound principles of public policy.

The supreme court of the United States is the court of last resort for the interpretation of all laws of Congress, and that court has interpreted many of the land laws of Congress, and has declared and passed upon the extent of the title conveyed by patents from the United States to riparian owners to lands bordering on navigable streams within the states and territories, and it would seem to me that the decisions of that *589 court upon the question of the extent of such grants should be accepted by this court, rather than the views of some of our state courts and the opinion of' a text-book writer whose practice and environment may have led him to express views to the effect that the common-law rule as to navigable rivers is better adapted to the wants of the people of this great nation, and ought to be applied to our great navigable streams and lakes, instead of the rule laid down by the supreme court of the United States. I am inclined to give greater weight to the decisions of the supreme court of the United States, especially when construing the extent of the grants of the United States to purchasers of the public lands, than my associates give to them.

One of the state court decisions recognized to be the ablest on the question of the extent of the title acquired under a United States patent by a settler on riparian lands is that of McManus v. Carmichael, 3 Iowa, 1 . That decision was rendered in 1856, and time has proven the wisdom of the rule there laid down, to wit: That the riparian owner, under a grant from the government, takes to high-water mark only. Gould in his work on Waters, 3d ed., sec. 72, refers to that case as one of the leading American authorities upon this subject, and referring to other decisions, that authority in sec. 67 of said work states that the doctrine that some of the states have held with regard to the private ownership of the beds of navigable waters above the tide, is at variance with sound principles of public policy, and the supreme court of the United States cites the case of McManus v. Carmichael, supra, as holding to the correct rule and as being consistent with the sound principles of public policy.

In Barney v. Keokuk, 92 U. S. 324 , 24 L. ed. 224, this question was given profound consideration by that great court. The common-law doctrine of navigable rivers and tide waters was reviewed. The condition existing between the extent and topography of the small British Island and that of the great American continent is there commented on. The influence of the common-law doctrine for two generations is declared to have excluded the admiralty jurisdiction from our great rivers *590 and inland seas, and it is stated how, nnder the influence of that doctrine, a number of the states of the Union adopted it without regard to the ownership of the soil under navigable waters above tide water, and then the court declared that such doctrine is at variance with “sound principles of public policy”; and further declared that there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. But in the face of that decision, the majority of this court have saddled on to this young commonwealth the antiquated, by-gone, obsolete, effete and discarded doctrine of the common law in that regard, which is not applicable to the conditions of this country, and has been rejected by many of the states of the Union and most, if not all, of the Pacific Coast states, including California, as well as by the supreme court of the United States.

In the case of Barney v. Keokuk, supra, the supreme court of the United States declared that the beds and shores of navigable streams properly belong to the respective states by their inherent sovereignty, and also declared that the United States has wisely abstained from extending its surveys and grants beyond the limits of high-water mark; while my associates hold that such grants do extend to the thread of the stream, regardless of this decision of the supreme court of the United States. It seems that my associates prefer to take the views of a text-book writer and the decisions of some of the states that have been hampered by the common-law rule which was intended to apply to a country whose longest river is but 300 miles in length, when our own Snake river is more than 1,000 miles long, to the opinion of the supreme court of the United States as to the extent of the government grant to settlers on navigable streams. The supreme court in that case further declares that all cases in which that court has seemed to hold to a contrary view or doctrine depended on the local laws of the state where such lands were situated, and my associates have quoted and rely upon those cases from the supreme court of the United States which were decided and depended upon the local laws of the state from whence such cases were taken, and not upon the sound principles of pub- *591 lie policy, which principles are referred to in the case of Barney v. Keokuk. In that decision, speaking through Mr. Justice Bradley, the court said:

“The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British Island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence, it laid the foundation in many states of doctrines, with regard to the ownership of the soil in navigable waters above tide water, at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines, where they have been applied, is for the several states themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject, the correct principles were laid down in Martin v. Waddell, 16 Pet. 367 , 10 L. ed. 997, Pollard v. Hagan, 3 How. (U. S.) 212, 11 L. ed. 565, and Goodtitle v. Kibbe, 9 How. (H. S.) 471, 13 L. ed. 220. These cases related to tide water, it is true; but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Chief, 12 How. (U. S.) 443, 13 L. ed. 1058, has declared that the Great Lakes and other navigable waters of the country, above, as well as below, the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its surveys and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most eases must depend, on the local laws of the states in which the lands were situated.”

*592 In Shively v. Bowlby, 152 U. S. 1 , 14 Sup. Ct. 548, 38 L. ed. 331, which is a very exhaustive opinion, and refers to and discusses numerous eases in regard to tide waters and navigable rivers, in referring to the extent of grants by Congress of portions of public lands within a state or territory, the court said:

“Grants by Congress of portions of the public lands within a territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water mart, and do not impair the title and dominion of the future state when created; but leave the question of the use of the shores by the owners of uplands to the sovereign control of each state, subject only to the rights vested by the constitution in the United States.”

It is there held that the grants by Congress of portions of the public lands within a state or territory to settlers thereon, though bordering on or bounded by navigable waters, whether tide water or not, convey of their own force no title or right below high-water mark, and do not impair the title and dominion of the state to the lands below high-water mark. In the face of that decision, my associates hold that such grants go to the center of the navigable stream, including all islands therein.

In the very celebrated case of the Illinois Central Ry. Co. v. People of the State of Illinois, 146 U. S. 387 , 13 Sup. Ct. 110, 36 L. ed. 1018, regardless of the decisions of the supreme court of the state of Illinois in regard to navigable waters, the United States supreme court held that the bed or soil of navigable waters was held by the people of the state in their character as sovereigns in trust for public uses for which they are adapted. By an act of the legislature, it had been undertaken to deprive the state of the fee and control over the bed and waters of the harbor of Chicago, and place the same in the hands of a private corporation, and the court there held that there could be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust under which he was bound to hold and manage it. The legislature of Illinois by that act endeavored to grant the fee to the *593 Illinois Central R. R. Co., its successors and assigns, to the bed of said harbor. Referring to tide waters and the rule of the common law with reference thereto, the court said:

“The same doctrine is in this country held to be applicable to lands covered by fresh water in the Great Lakes over which is conducted an extended commerce with different states and foreign nations.At one time the existence of tide waters was deemed essential in determining the admiralty jurisdiction of courts in England. That doctrine is now repudiated in this country as wholly inapplicable to our condition. .... When the reason of the limitation of admiralty jurisdiction in England was found inapplicable to the condition of navigable waters in this country, the limitation and all its incidents were discarded.The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the crown, which could alone exercise such dominion over the waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment, a reason as applicable to navigable fresh waters as to waters moved by the tide.”

And it is there held that the bed or soil of navigable waters in this country is held by the people of the state in their character as sovereign, in trust for public uses for which they are adapted. In that ease the legislature of the state had undertaken to deprive the state of its control over the bed of the harbor of Chicago by granting it in fee to the Illinois Central Railroad Company.

My associates appear to be trying to imitate the legislature of Illinois by attempting to convey in fee by judicial construction to the riparian land owners the title to the beds of our navigable streams, without any authority of law or permission granted by the sovereign people, and as I view it, contrary to the decision of the supreme court of the United States as to the extent of a government grant. We, no doubt, will have the same results under this decision that they have had in *594 Illinois and other states where the contrary doctrine is held, of the riparian land owner collecting toll from those using-the stream for transportation, for tying up their vessels to the shore, or for other purposes of navigation.

Not only that, but there are many islands in Snake river-containing from a few acres of land up to more than a hundred, that my associates have magnanimously bestowed upon, the adjacent riparian land owner as a gift, and, as I think,, contrary to the rights and interests of the people generally.

In the opinion of my associates, it is stated that in the-United States where the test of navigability is navigability in fact, the decisions in reference to the boundaries of land lying upon nontidal, navigable rivers are absolutely in conflict. "We concede that they are in conflict, but contend that my associates have taken the view contrary to the decisions of the United States supreme court, and as that court held in Barney v. Keokuk, supra, to be “at variance with sound principles of public policy,” as well as contrary to the decisions of many of the state courts. Mr. Justice Stewart suggests, after concluding that the authorities are in hopeless conflict, that the text-book writers are unable to determine accurately what the several courts have held. I would suggest that the decisions of the supreme court of the United States; upon this question are not in hopeless conflict. They do not give forth contradictory rules or doctrines, but hold to the one rule that sound principles of public policy require the title to the land under navigable waters to remain in the state. It is not the function of this court to grant and give away lands belonging to the state by adopting a doctrine which the supreme court of the United States has declared to' be at variance with sound principles of public policy, against which doctrine we have such a long list of decisions of courts of last resort of the states of the Union. Under such circumstances, this court should preserve the rights of the state and the people, and the state under proper regulations should protect the rights of the riparian land owner and the rights of all the people to the reasonable use of such streams and their beds and convey them to no private owner.

*595 In the case of Hardin v. Jordan, 140 U. S. 373 ., 11 Sup. Ct. 808, 35 L. ed. 428, the court held that the grants of the government for lands bounded by streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the land lies, and in a number of decisions the supreme court follows the decisions of the state courts so far as the title to the beds of navigable rivers is concerned. 'While that court states that it is contrary to or at variance with the “sound principles of public policy” to permit private ownership of the beds of navigable rivers, it sustains the decisions of the supreme courts of several states which are thus designated as “ at variance with the sound principles of public policy,” on the ground that after a territory becomes a state, the title to the beds of navigable streams is transferred to the state, and if the state desires to give it away and donate it without compensation to riparian owners, the supreme court of the United States will not interfere, unless it should be necessary to do so in order properly to regulate commerce, as it did do in Illinois Central Ry. Co. v. Illinois, supra. It is there declared that the right of the states to regulate and control the shores of navigable waters and the land under them is supreme, and it is there further held that it depends upon the law of each state as to what waters and to what extent this prerogative of the states over the beds of such streams shall be exercised. It is upon that theory that many of the decisions of the state courts have been sustained by the supreme court of the United- States. It is held that after statehood, the state holds the title to the beds of navigable streams, and that the state may dispose of them, if it desires to do so, to private owners. The decisions are to the effect that no such disposition shall interfere with the rights of the general government to regulate commerce on such navigable streams.

It is suggested by my associates that it is vitally essential to the public peace and to individual security that boundaries of land should be definitely fixed and that they are definitely fixed by taking the thread of the stream. This is not, and *596 cannot be, true in this state where many of our large streams from year to year change their thread. Only recently one of the large rivers of the state changed its thread more than a mile from where it was one year ago. The average high-water mark would be just as safe and certain a boundary as the thread of the stream. If one varies, as a rule the other also varies.

It is stated in sec. 76 of Gould on Waters, 3d ed., that “T-he true boundary line of a navigable stream or lake is the point to which the water usually rises in ordinary seasons of high water,” and I think that line just as definite and as certain of ascertainment as the thread of the stream.

It is perhaps useless for me to continue this subject further, but the decision of my associates, as I view it, is so at variance with the principles of sound public policy and the rights of the people, that I could not refrain from expressing my opinion upon the main principle of law involved in this case.

It has been suggested that there is no law of the United States transferring the beds of the navigable streams of Idaho to the state. We concede that there is no positive law of Congress to that effect, but under the construction given by the supreme court of the United States to the land laws of Congress, and to the grants of the government, as soon as a territory becomes a state, the title to the beds of all navigable streams goes to'the state. I would suggest that there is no law of this state authorizing this court to transfer lands belonging to the state to private ownership, as has been done in this case. The supreme court of the United States has the authority to construe the extent of grants from the United States government. This court takes the title to the beds of navigable rivers from the people and gives it to private land owners without any authority in law and without any jurisdiction in the court to do so. While generosity is recognized as a good quality of heart, it is not a very just rule for the courts to be more generous with the state’s property than it would be with its own property.

A long line of able decisions, standing at the head of which are those of the United States supreme court, holds that grants *597 of the government to settlers along navigable streams only extend to high-water mark, and why this young state should adopt the common-law rule in regard thereto is beyond my comprehension, for by so doing hundreds of acres of lands belonging to the public of the state are turned over to a few riparian private land owners, and as there are many islands in Snake river containing from a few acres up to more than a hundred, they are by this decision given to persons who did not purchase them and did not intend to do so. To such prodigality with the people’s inheritance, I am unalterably opposed. Why not protect the people’s rights by following the precedents of the strongest courts in the nation, rather than follow the decisions of courts which were hampered by and could not escape from the old common law and rule that is not at all adapted to the great rivers and lakes of the United States, one of which lakes would contain the British Island and the surface not then be half covered! There is a well-recognized line of decisions which hold that the riparian owners take to the low-water mark, and, as I view it, that rule would protect the interest of the people of the state much better than the one adopted by the majority of the court. In Johnson v. Hurst, 10 Ida. 308 , 77 Pac. 784 , this court held that the riparian owner took to the water line, not intimating that he took to the thread of the stream. However, in that case, the question of the ownership of the land between high and low water mark was involved, the parties apparently conceding that the riparian owners’ rights did not go to the thread of the stream.

For the reasons above set forth, I think that the beds of our navigable streams should forever remain in the state for the benefit and welfare of the whole people, under proper state regulation, and not gratuitously given to riparian owners by the courts of the state or by the legislature.

Petition for rehearing denied.