Stephen L. Orr, Shirlee Orr, Ronald E. Cameron, Randy Sevde, And Colleen Katerie Sevde ( 2007 )

IN THE SUPREME COURT OF IOWA
No. 140 / 04-1968
Filed July 20, 2007
STEPHEN L. ORR, SHIRLEE ORR,
RONALD E. CAMERON, RANDY
SEVDE, and COLLEEN KATERIE
SEVDE,
Appellees,
v.
JEFFREY MORTVEDT and
SUSAN MORTVEDT,
Appellants.
Appeal from the Iowa District Court for Hamilton County, Timothy J.
Finn, Judge.
The defendants appeal from the district court’s ruling declaring the
property interests of multiple owners of a lake formed in an abandoned
quarry. AFFIRMED.
Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellants.
William J. Koehn and Heather L. Palmer of Davis, Brown, Koehn,
Shors & Roberts, P.C., Des Moines, for appellees.
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HECHT, Justice.
The defendants appeal from the district court’s ruling denying their
request for reformation of a deed and declaring: (1) they have the right to
use and enjoy only that portion of a man-made lake covering an abandoned
rock quarry within the legal description of their deed; (2) the plaintiffs may
erect a fence, berm or other structure in the lake marking the borders of
their properties; and (3) the plaintiffs may drain the water covering their
respective properties and reopen the quarry. We affirm.
I. Background Facts.
The Twedt family owned a rock quarry and land surrounding it in
Hamilton County. The mining of the quarry was discontinued, and the
excavated area consisting of approximately thirty acres became a lake filled
by ground water springs and normal rainwater run-off. The Twedt family
subsequently sold the real estate in a series of transactions over a period of
years. Each of the transactions resulted in the conveyance of a portion of
the lake bed and land surrounding it.
In the first transaction, Randy Sevde and Colleen Katerie Sevde
purchased approximately twenty acres of the lake bed along with adjacent
land situated east, south and west of the lake in 1994. In the second
transaction in the series, Jeffrey and Susan Mortvedt purchased a tract
west and north of the lake, including the northern tip of the lake bed, in
1996. In 1998, Stephen and Shirlee Orr acquired a parcel situated
primarily on the east side of the lake and including that part of the lake bed
located between the parts previously purchased by the Sevdes and the
Mortvedts. In the last conveyance of relevance to this case, the Orrs soon
thereafter conveyed a portion of the property they had acquired, including a
part of the lake bed, to Ronald Cameron.
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A boundary dispute arose between the Mortvedts and the Orrs.
The Mortvedts contended their property extended to the water’s edge on the
west side of the lake. The Orrs disagreed, claiming a survey undertaken
and filed of record at the time of the Mortvedts’ purchase confirms that the
Mortvedts’ east boundary line lies west of the water’s edge and establishes
that the Orrs own a narrow strip of land on the west side of the lake. This
boundary dispute escalated when the Orrs cut down trees and planted
other vegetation on the disputed narrow strip of land. Disharmony also
resulted from the neighbors’ inability to agree about their respective rights
to use the lake. The Sevdes and the Orrs objected when the Mortvedts
used, for fishing and boating, parts of the lake beyond the boundaries of the
lake bed owned by the Mortvedts.
The Orrs, the Sevdes, and Cameron filed this action seeking: (1) a
resolution of the boundary dispute between the Orrs and the Mortvedts; (2)
an adjudication of whether the owners of the lake bed have a legal right to
access the entire lake or only that portion of the lake within the legal
descriptions of their respective deeds; (3) a declaration that they have the
right to drain the water covering their property and fence it; (4) a
determination that they are entitled to exclusive possession, use and
enjoyment of the minerals located within their respective properties; and (5)
compensatory damages for trespass and injunctive relief to prevent future
trespasses by the Mortvedts.
The Mortvedts filed a counterclaim seeking a declaration that: (1) they
have a legal right to use the entire lake; (2) the plaintiffs have no right to
drain the water from the lake and reopen the quarry; (3) the plaintiffs be
required to restore the lake water level to that which prevailed when the
Mortvedts purchased their property in 1996; and (4) the plaintiffs have no
legal right to install or maintain a fence in the lake. The Mortvedts also
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sought reformation of their deed to conform it to the understanding of
the parties to the 1996 conveyance: that the Mortvedts’ east property line
extends to the lake water’s west edge. They also requested compensatory
damages for the loss of the trees removed by Stephen Orr from the narrow
strip of land claimed by both the Mortvedts and the Orrs.
After a bench trial, the district court filed a decision declaring in
relevant part: (1) the parties are entitled to the exclusive possession, use
and enjoyment of the water covering the real estate described in their
respective deeds; (2) the parties own any minerals located on the real estate
described in their respective deeds; (3) the Mortvedts are prohibited, absent
express written permission, from entering upon or using the water
overlaying the properties owned by the Sevdes, the Orrs, and Cameron, who
are legally entitled to construct a fence, berm or other structure to mark the
boundaries of their properties; and (4) the Sevdes, the Orrs, and Cameron
are entitled to drain the water covering, mine minerals from, and restore
wetlands upon their properties. The court denied the defendants’
counterclaim.
The Mortvedts appeal, contending the district court erred in
concluding: (1) the lake is not “public water” as defined by Iowa Code
sections 455B.261(17) and 455B.262(3) (2003); (2) their deed should not be
reformed; and (3) they are not entitled to damages for the loss of the trees
destroyed by Stephen Orr.
II. Scope of Review.
This case was filed and tried in equity. Our review is de novo.
Breitbach v. Christenson, 541 N.W.2d 840, 843 (Iowa 1995).
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III. Discussion.
A. Reformation of the Mortvedt Deed.
The Mortvedts contend the district court erred in failing to reform
their deed to locate the boundary between their property (“Parcel C”) and
that of the Orrs (“Parcel B”) at the water’s edge on the west side of the lake.
As the parties seeking reformation, the Mortvedts introduced evidence and
requested a finding that their deed does not describe the intended boundary
line. See Kendall v. Lowther, 356 N.W.2d 181, 187 (Iowa 1984) (stating that
the party seeking reformation bears the burden of establishing by clear and
convincing evidence that a written instrument fails to reflect the contracting
parties’ intent). The Mortvedts offered evidence tending to prove their
grantor intended the water’s edge on the west side of the lake would be the
eastern boundary of the property conveyed to the Mortvedts. This evidence
included the contract between the grantor-estate and the Mortvedts
describing the property to be conveyed as “[i]ncluding all land west and
north of [the] water.” The Mortvedts also offered the testimony of Loren
Twedt, a co-executor of the grantor-estate, and Eldon Boswell, a realtor for
the estate, who both affirmed such intent. The plaintiffs objected to the
Mortvedts’ offer of the real estate contract and the testimony of Mr. Boswell
and Mr. Twedt on the grounds that such evidence violated the parol
evidence rule and the statute of frauds.
In its decision rejecting the Mortvedts’ prayer for reformation of their
deed, the district court concluded Boswell’s testimony and the real estate
contract violated both the parol evidence rule and the statute of frauds. The
court also concluded the remedy of reformation is not available to the
Mortvedts because the Orrs, whose property interest in the disputed strip of
land would be directly affected if the remedy were granted, were not parties
to the Mortvedts’ deed.
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We need not address the Mortvedts’ contention that the
district court erred in its ruling on the parol evidence and statute of frauds
objections because the district court correctly concluded the remedy of
reformation is unavailable to the Mortvedts under the circumstances of this
case. We will only order reformation of a deed against a party to it, a person
in privity with a party, or a person with notice of the relevant facts. See
Burner v. Higman & Skinner Co., 133 Iowa 315, 316, 110 N.W. 580, 580
(1907). Reformation will not be ordered to the prejudice of innocent third
persons. 76 C.J.S. Reformation of Instruments § 54 (1994); see also Lee v.
Brown, 482 So. 2d 293, 297 (Ala. 1985) (declining to reform a deed to the
detriment of an adjoining landowner who was an innocent purchaser);
Statler v. Painter, 133 S.W.3d 425, 429 (Ark. Ct. App. 2003) (same); Schlenz
v. Dzierzynski, 481 N.E.2d 287, 290 (Ill. App. Ct. 1985) (same); Chandelle
Enters. LLC v. XLNT Dairy Farm, Inc., 699 N.W.2d 241, 247-48 (Wis. Ct. App.
2005) (same). Notwithstanding the Mortvedts’ assertions to the contrary, we
find the Orrs were innocent third parties as to the transaction between the
Twedt estate and the Mortvedts.
Stumbo & Associates Land Co. was hired to prepare a survey when
the Mortvedts purchased their land from the Twedt estate in 1996. That
survey of Parcels B and C describes the real estate by metes and bounds
and denotes the boundary between the parcels as a straight line running
from essentially north to south, as shown on the illustration below:
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The legal description of Parcel C in the Mortvedts’ deed to Parcel C refers
expressly to the Stumbo survey.
The Mortvedts contend, however, that the Stumbo survey put the
Orrs on inquiry notice of the Mortvedts’ claim that the boundary between
the two parcels is marked by the water’s edge rather than the straight, solid
boundary line shown on the survey. The Mortvedts support their position
by reference to a dotted line denominated by the surveyor as “edge of water”
and drawn on the survey adjacent to the straight, solid line to illustrate the
approximate location of the water’s edge on the west side of the lake.
Although the survey did note in this way the approximate location of the
water’s edge in relation to the east boundary line identified in the Mortvedts’
deed, we conclude the Orrs were not on inquiry notice of any mutual
mistake made by the grantor-estate and the Mortvedts in the deed’s
description of that boundary line.
8
A reasonably prudent person would interpret the survey as an
illustration of the boundary legally described in the Mortvedts’ deed and as
confirmation that the Mortvedts had not acquired from their grantor the
narrow strip of land on the west side of the lake that is the subject of this
dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and
survey would cause a prudent subsequent purchaser to further inquire into
the deeding parties’ intentions and to consequently discover any
discrepancy between those intentions and the legal description in the deed.
See Bedford v. Kravis, 622 So. 2d 291, 295 (Miss. 1993) (“[I]f in any . . .
deed or conveyance there is contained any recital sufficient to put a
reasonably prudent man on inquiry as to the sufficiency of the title, then he
is charged with notice of all those facts which could and would be disclosed
by a diligent and careful investigation.” (emphasis removed)); 76 C.J.S.
Reformation of Instruments § 58 (“[A] party is not an innocent purchaser if he
. . . was conscious of having the means [to discover a mutual mistake] and
did not use them as an ordinarily prudent and diligent person would have
done, or if there were circumstances sufficient to put him on inquiry [notice
of the deeding parties’ mistake].”); cf. Luker v. Moffett, 38 S.W.2d 1037,
1041-42 (Mo. 1931) (reforming a deed where a purchaser was on inquiry
notice of the boundary line). Indeed, contrary to the Mortvedts’ contention,
the survey and deed taken together would lead a reasonable person to
believe the Mortvedts’ east boundary did not extend to the water’s edge.
The surveyor’s notation of the “edge of water” provided express notice on the
face of the survey that the metes and bounds description of the property
purchased by the Mortvedts did not extend eastward to the edge of the
water. Because the Orrs were not on inquiry notice of the claimed mistake
in the legal description within the Mortvedts’ deed, they were innocent
9
purchasers whose property interest in the narrow strip of land at issue in
this case cannot be compromised by reformation of the Mortvedts’ deed.
Our resolution of this issue dictates that we must affirm the district
court’s determination that the Mortvedts have no claim for damages as a
consequence of Stephen Orr’s removal of trees from the narrow strip of land
on the west side of the lake.
B. Ownership of the Lake Bed; Use and Control of the Lake Water.
We next address the parties’ competing legal claims as to their rights
to access the surface waters of the lake for boating and fishing, to fence or
otherwise establish physical boundaries on the surface of the lake
demarcating their respective claims to ownership of parts of the lake bed,
and to drain the water from the lake. As we have noted, the district court
concluded the parties have a legal right to go upon and use only the water
overlaying the lake bed they own; and consequently, without the consent of
the other lake bed owners, the Mortvedts may not go upon or use the water
overlaying the plaintiffs’ property.
The public generally has a right of access to navigable watercourses.
See State v. Sorensen, 436 N.W.2d 358, 361-63 (Iowa 1989) (concluding the
public trust doctrine requires the State to protect the public’s right to use
navigable watercourses). Accordingly, if the lake at issue in this case is
navigable, the plaintiffs have no right to exclude the Mortvedts from using
and enjoying any part of it. The determination of whether a watercourse
was navigable at common law depended on the presence or absence of the
tidal ebb and flow of water. McManus v. Carmichael, 3 Iowa 1, 3-6 (1856).
But the jurisprudence of this country has extended the definition of
“navigable” to refer to watercourses “susceptible of use for purposes of
commerce” or “possess[ing] a capacity for valuable floatage in the
10
transportation to market of the products of the country through
which it runs.” Monroe v. State, 175 P.2d 759, 761 (Utah 1946) (internal
quotation marks and citation omitted). “Navigable water has been likened
to a public highway,” McCauley v. Salmon, 234 Iowa 1020, 1022-23, 14
N.W.2d 715, 716 (1944), “used or usable as a broad highroad for
commerce.” Mountain Props., Inc., v. Tyler Hill Realty Corp., 767 A.2d 1096,
1100 (Pa. Super. Ct. 2001). The landlocked body of water which is the
subject of this case consists of only approximately thirty acres and has
never served as a highway of commerce. It has been used primarily for
recreational purposes and is clearly nonnavigable.
The navigable or nonnavigable status of a watercourse generally
determines whether the bed of a watercourse is owned by the state or by
private parties. “In Iowa, the legal title to the beds of all navigable lakes to
the high-water mark is in the state in trust for the use and benefit of the
public.” State v. Nichols, 241 Iowa 952, 967, 44 N.W.2d 49, 57 (1950);
accord Peck v. Alfred Olsen Constr. Co., 216 Iowa 519, 529, 245 N.W. 131,
136 (1932) (noting the legal title to a navigable lake is in the state). But “[i]f
a body of water is nonnavigable, it is privately owned by those who own the
land beneath the water’s surface and the lands abutting it, and may be
regulated by them.” Mountain Props., Inc., 767 A.2d at 1099-1100. The
nonnavigable lake in this case is thus privately owned by the parties
because each of their deeds includes part of the lake bed.
We have not previously been asked to decide the fighting issue
presented by the parties now before the court: Whether the owner of part of
the bed of a nonnavigable lake has the legal right to use and enjoy the
entire lake, or only that part covering the lake bed described in his deed?
The authorities on this issue are divided. The majority rule, often referred
to as the “common law rule,” dictates that one is entitled to exclusive use
11
and enjoyment of that portion of the nonnavigable lake covering the lake
bed one owns. Wehby v. Turpin, 710 So. 2d 1243, 1247 (Ala. 1998); Ace
Equip. Sales, Inc. v. Buccino, 869 A.2d 626, 634 (Conn. 2005); Anderson v.
Bell, 433 So. 2d 1202, 1204 (Fla. 1983); Lanier v. Ocean Pond Fishing Club,
Inc., 322 S.E.2d 494, 496 (Ga. 1984); Sanders v. De Rose, 191 N.E. 331,
333 (Ind. 1934); Black v. Williams, 417 So. 2d 911, 912 (Miss. 1982);
Mountain Props., Inc., 767 A.2d at 1099; Smoulter v. Boyd, 58 A. 144, 146-
47 (Pa. 1904); White’s Mill Colony, Inc. v. Williams, 609 S.E.2d 811, 818
(S.C. Ct. App. 2005); Wickouski v. Swift, 124 S.E.2d 892, 894 (Va. 1962);
Ours v. Grace Prop., Inc., 412 S.E.2d 490, 494 (W. Va. 1991). In
jurisdictions following the common law rule, owners of the lake bed may
fence off their lake bed to promote their exclusive use and enjoyment. The
common law rule thus conforms to the familiar legal maxim cujus est solum,
ejus est usque ad coelum et ad inferos—“[w]hoever owns the soil owns
everything up to the sky and down to the depths.” Nichols v. City of
Evansdale, 687 N.W.2d 562, 566 (Iowa 2004) (citing Black’s Law Dictionary
1712 (8th ed. 2004)).
A lesser number of jurisdictions have adopted what has been
described as the “civil law rule.” 1 This rule holds that owners of any part of
a nonnavigable lake are entitled to reasonable use and enjoyment of the
entire surface of the lake, not merely that part covering the bed they own.
Duval v. Thomas, 114 So. 2d 791, 795 (Fla. 1959); Beacham v. Lake Zurich
Prop. Owners Ass’n, 526 N.E.2d 154, 157 (Ill. 1988); Beach v. Hayner, 173
1One scholar has noted that the rule commonly referred to as the “civil law rule”
was not derived from either the civil law tradition of post-Roman continental Europe or
ancient Rome, but rather from decisions of Scottish courts in the nineteenth century, and
that the “common law rule,” which pre-dates the English common law, actually originated
in Roman civil law. See Nicholas Harling, Non-navigable Lakes and the Right to Exclude: The
Common Misunderstanding of the Common Law Rule, 1 Charleston L. Rev. 157, 176-77
(2007). While we have no quarrel with the author’s historical analysis, we choose to refer to
the two rules by the names ascribed to them by other American courts.
12
N.W. 487, 488-89 (Mich. 1919); Snively v. Jaber, 296 P.2d 1015,
1019 (Wash. 1956).
The Mortvedts contend our legislature has codified the civil law rule
in Iowa Code chapter 455B. Iowa Code section 455B.262(3) (2003)
provides:
Water occurring in a basin or watercourse, or other body of
water of the state, is public water and public wealth of the
people of the state and subject to use in accordance with this
chapter, and the control and development and use of water for
all beneficial purposes is vested in the state, which shall take
measures to ensure the conservation and protection of the
water resources of the state. These measures shall include the
protection of specific surface and groundwater sources as
necessary to ensure long-term availability in terms of quantity
and quality to preserve the public health and welfare.
“Watercourse” is defined in the same chapter to include
any lake . . . or other body of water or channel having definite
banks and bed with visible evidence of the flow or occurrence
of water, except lakes or ponds without outlet to which only
one landowner is riparian.
Iowa Code § 455B.261(17). The Mortvedts assert the lake in this case fits
neatly within the definition of a watercourse. The body of water has several
riparian land owners, definite banks, and a bed. As it is filled with water at
all times, the lake must be said to have a “visible occurrence of water.” An
outlet located in the southwest corner of the lake allows water to escape and
flow toward a nearby creek if the volume of water should exceed the
capacity of the lake’s banks.
We conclude the district court correctly rejected the Mortvedts’
contention. Chapter 455B expresses the State’s policy to protect lives and
property from floods and to promote the orderly development, wise use,
protection, and conservation of the State’s water resources. The statute
does not expressly address the nature and extent of the property interests of
multiple owners of landlocked nonnavigable lakes. We are not persuaded
13
that the legislature intended for chapter 455B to prescribe the
relative rights of multiple owners to use and enjoy landlocked privately
owned watercourses.
In the absence of legislative direction on the issue, we must determine
whether the common law rule or the civil law rule should prevail in Iowa.
Advocates of the civil law rule claim it is to be preferred because it avoids
“the difficulties presented by attempts to establish and obey definite
property lines.” Beacham, 526 N.E.2d at 157. Where, as in the case now
before the court, multiple parties claim an ownership interest in an
unfenced lake, it may be difficult to discern precisely where the boundaries
of one’s property are located. The civil law rule avoids this problem by
granting the owner of part of a nonnavigable lake bed access to the entire
lake. The rule arguably “promotes rather than hinders the recreational use
and enjoyment of lakes.” Id. Perhaps more importantly, the civil law rule
discourages the placement of fences or other barriers along boundary lines
in the water that “frustrate the cooperative and mutually beneficial use” of
water resources, id., and arguably promotes the aesthetic enjoyment of
those who use them.
Notwithstanding the notable positive features of the civil law rule,
however, we reject it and join the majority of jurisdictions that have adopted
the common law rule. The principal advantage of the rule we adopt today is
its consistency with prevailing norms of real estate ownership in this state.
The common law rule recognizes the legal significance of property
boundaries and protects the interests of owners when neighbors are
unwilling or unable to coexist cooperatively. Finally, we adopt the common
law rule as the default rule, realizing that the several owners of
nonnavigable lakes may bargain among themselves to adopt other mutually
14
acceptable arrangements for the use and mutual enjoyment of water
resources.
IV. Conclusion.
The Mortvedts’ deed cannot be reformed under the circumstances of
this case. The district court correctly concluded: (1) the plaintiffs have the
legal right to exclude the Mortvedts from access to parts of the lake covering
the lake bed owned by the plaintiffs; (2) the plaintiffs are legally entitled to
drain and fence the water covering their respective properties and reopen
the quarry; and (3) the Mortvedts’ damage claim for the destruction of trees
on land owned by the Orrs is without merit.
AFFIRMED.
All justices concur except Cady, J., who dissents.
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#140/04-1968, Orr v. Mortvedt
CADY, J. (dissenting).
I respectfully dissent from the majority’s adoption of the common law
rule regarding littoral rights in nonnavigable waters in Iowa. The decision of
the majority is based largely on its allegiance to “one of the oldest rules of
property known to the law that the title of the owner of the soil extends, not
only downward to the center of the earth, but upward usque ad coelum.”
Hannabalson v. Sessions, 116 Iowa 457, 461, 90 N.W. 93, 95 (1902). The
“logical extension” of this rule leads one to conclude “[a]n owner ‘is entitled
to exclusive dominion over his land, including the areas above and below its
surface.’ ” Andrea B. Carroll, Examining a Comparative Law Myth: Two
Hundred Years of Riparian Misconception, 80 Tul. L. Rev. 901, 907 (2006)
(citation omitted) [hereinafter Carroll]. Indeed, the logical extension of the
rule in this case leads the majority to conclude lake bed owners of
nonnavigable lakes have absolute ownership in the waters above their
lands. But such an extension is not justified because it is based on the
anachronistic rule that our property rights “ ‘extend from heaven to hell.’ ”
Id. (citation omitted). The march of time, the evolution of society, and the
inherent differences between land, water, and air clearly demonstrate they
do not. The majority’s adoption of what is called the “common law rule”
only furthers this antiquated abstraction. See id. at 940 (suggesting the
common law rule should be called “the Roman rule,” “traditional rule” or
“exclusive dominion” rule instead).
Moreover, the application of such a rule to Iowa today is
unreasonable. As the majority recognizes, the rule presents difficulties in
“attempt[ing] to establish and obey definite property lines,” and leads to
“impractical consequences,” such as the “erection of booms, fences, or
barriers.” Beacham v. Lake Zurich Prop. Owners Ass’n, 526 N.E.2d 154,
16
231–32 (Ill. 1988). The Scots recognized and solved this problem
long ago. See Carroll, 80 Tul. L. Rev. at 927 (“[T]he rule of free access to the
surface of nonnavigable lakes has its genesis nowhere but in the Scottish
legal system, and that it was born out of the Scots’ desire to simplify the
problems of boundary demarcation and enforcement on those water
bodies.”). Their solution was embodied in what could be called the “free
access” rule, or what the majority calls the “civil law rule.” See id. at 940
(suggesting the civil law rule should be called the “Scottish rule,” the
“modern rule,” or the “free access” rule). The reasonableness of the free
access rule is readily apparent—even to the majority. The majority correctly
recognizes it “promotes rather than hinders the recreational use and
enjoyment of lakes.” Beacham, 526 N.E.2d at 232. In addition, vis à vis the
exclusive dominion rule, it has several recognized advantages:
(1) the [exclusive dominion] rule is too difficult to follow with regard to lakes;
(2) there can be no private ownership in the waters or in the fish of a
nonnavigable lake and, thus, use of the surface should be open to all
riparian landowners, (3) common use of the surface of nonnavigable lakes is
customary; [and] (4) economic policy requires the adoption of the [free
access rule].
Carroll, 80 Tul. L. Rev. at 910 (footnotes omitted).
Nevertheless, the majority adopts the exclusive dominion rule. It
reasons that the principle is the “majority” rule, that owners could modify
the rule by private agreement, and that it comports with the property norms
in this state. In my view, these arguments are unpersuasive. First, the
traditional rule is definitely not, when put into context, the “majority” rule.
See Nicholas Harling, Non-Navigable Lakes & the Right to Exclude: The
Common Misunderstanding of the Common Law Rule, 1 Charleston L. Rev.
157, 170 & n.88, 183 (recognizing most courts have adopted the common
17
law rule, but that because “many other[] [courts] have been unduly
influenced by the common law rule’s historic mislabeling and a mistaken
belief that their decision places the state’s law squarely within the common
law tradition . . . no true majority rule exists in America”). Second, the
parties in this case clearly demonstrate that a private agreement between
them is nearly impossible so that when cases like this arise there really is
no other choice.
Finally, if the exclusive dominion rule is consistent with our prevailing
norms regarding real estate ownership, it is only because it is based on an
antiquated concept that fails to consider the nature of the property in this
case. The rule finds no support from those perhaps most familiar with
littoral rights. See Carroll, 80 Tul. L. Rev. at 919–27 (explaining the Scots’
adoption of a free access rule regarding Scottish lochs); Johnson v. Seifert,
100 N.W.2d 689, 696–97 (Minn. 1960) (adopting the free access rule for the
“land of a thousand lakes,” but also noting that it would not apply to “[a]
minor body of water which by its nature and character reasonably has no
overall utility common to two or more abutting owners”). It also fails to
recognize the distinction between water and land. See Carroll, 80 Tul. L.
Rev. at 910 & n.50 (explaining why the “common law rule is too difficult to
follow with regard to lakes”).
Perhaps most importantly, the free access rule is not detrimental to
prevailing norms. See Eric T. Freyfogle, The Particulars of Owning, 25
Ecology L.Q. 574, 585 (1999) (“This trend of tailoring rights to the land
poses little real threat to the core values of property. Once people see what
is going on, once they realize that property rights now depend in part on the
land itself, expectations can be adjusted and life can go on, with as much
economic growth, personal privacy, and civic harmony as ever before.”)
[hereinafter Freyfogle]. In fact, I do not believe a free access rule would
18
necessarily limit the existing property rights of lake bed owners,
such as the Orrs in this case. The free access rule simply “permits a
riparian landowner ‘to use the surface of the entire lake for fishing, boating,
and bathing as long as he does not unduly interfere with the rights of the
other [riparian landowner] proprietors.’ ” Carroll, 80 Tul. L. Rev. at 909–10
(quoting James W. Cullis, Note, Extent of Private Rights in Nonnavigable
Lakes, 5 U. Fla. L. Rev. 166, 176 (1952)).
Property law is not set in stone, but depends “entirely on the law of
the nation” where the property is located. Johnson & Graham’s Lessee v.
M’Intosh, 21 U.S. 543, 572, 5 L. Ed. 681, 688 (1823). It is perhaps
noteworthy that Illinois and Minnesota, apparently Iowa’s only two border
states that have considered the issue, have adopted the free access rule.
See Beacham, 526 N.E.2d at 157; Johnson, 100 N.W.2d at 696–97.
Moreover, in light of the benefits of the free access rule, it is not too much
for our law to require lake bed owners to permit the reasonable use of
surface water by other lake bed owners. This approach best reflects our
modern values of free use and enjoyment of lakes and streams in Iowa and
still protects the rights and ownership of lake bed owners by only permitting
others to use the surface water in a reasonable manner, and not
terminating any rights a lake bed owner has in the land.
I do not know how many Iowans share the shores of nonnavigable
lakes around the state so as to be affected by the holding in this case, but I
suspect there are many. In each instance, the inflexible rule adopted by the
majority could leave unwanted consequences. For example, it will permit
lake bed owners to build fences into the lake to mark boundary lines. It will
also give rise to claims of trespass for operating boats in waters over land
owned by another or for merely “casting a fishing line into water” over land
owned by another. Carroll, 80 Tul. L. Rev. at 908. We, of course, know of
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the uncivilized conduct exhibited by the property owners in this case.
This is not the Iowa our laws should create.
While the majority rule toasts the rugged and proud American spirit
of individualism and self-determination commonly tied to land ownership,
see Freyfogle, 25 Ecology L.Q. at 574 (“Among the peculiar traits of the
United States is its pronounced preoccupation with individual rights and its
tendency to discuss social problems in individual terms.”), these notions are
largely illusory when applied to lakes. The same self-control given to one
landowner is also enjoyed by the other landowners around the lake.
Without a shared, community approach and understanding, any single lake
bed owner can disrupt or destroy the common aspirations of living on a lake
for everyone else by exercising their individualism over the portion of the
lake they control. When individual control over a portion of the lake is the
desired goal, no person can share in the common attributes of life on the
lake. The better rule is a community approach to littoral rights, which the
free access rule accomplishes without diminishing our individual property
rights. See id. at 588 (“From water law there is the sensible [free access]
rule governing the surface use of nonnavigable lakes; in that case, too,
individual property rights are mingled and shared, without diminishing
their value.”). When we deal with our world’s resources, that is the best, if
not the only, policy to follow.
The policy behind the free access rule best reflects life in Iowa in the
twenty-first century. Rigid property rights of the past centuries should give
way to the simple and fair solution of boundary disputes offered by the
better reasoned free access rule. Our laws pertaining to land, air, and water
must begin to reflect that we coexist on Earth as one.