Matter of Ownership of Bed of Devils Lake , 1988 N.D. LEXIS 113 ( 1988 )

VERNON R. PEDERSON, Surrogate Justice,

dissenting.

In the past, this court has ruled that the state’s interest in a lake bottom and in the lands surrounding a navigable lake are lost to abutting private owners as the high water line receeds. Because the public trust doctrine was not considered, those rulings should not be relied upon as precedent in this case.

It is now clearly determined that certain property held in trust for the public cannot be alienated. See United Plainsmen v. N.D. State Water Com., 247 N.W.2d 457 (N.D.1976); Saetz v. Heiser, 240 N.W.2d 67 (N.D.1976); Small v. Burleigh County, 225 N.W.2d 295 (N.D.1974); Wenberg v. Gibbs Tp., 153 N.W. 440, 31 N.D. 46 (1915); and Walkott Township v. Skauge, 71 N.W. 544, 6 N.D. 382 (1897). See also Nat. Audubon Soc. v. Super. Ct. of Alpine Cty. 658 P.2d 709, 33 Cal.3d 419, 189 Cal.Rptr. 346 (1983).

Although everything said in Utah v. United States, 420 U.S. 304, 95 S.Ct. 1153, 43 L.Ed.2d 211 (1975) does not fully apply to this case, it’s reasoning is persuasive. It avoids what otherwise can be absurd results and supports the proposition that when other solutions are not reasonable, a meander line does provide a reasonable answer. A constantly moving property line can lead to absurd results (e.g. ownership of and right to produce oil or other minerals) and, in my view, provides no reasonable real property boundary for title purposes.

The judgment should be reversed.