Hillebrand v. Knapp , 65 S.D. 414 ( 1937 )

I am not able to agree with the majority of the court in this case. It has been the law since time immemorial that the land of a riparian owner is bounded by the water's edge, and if the water recedes, his boundary follows the water's edge until the water dries up entirely. This doctrine was recognized in the cases of Lamprey v. State (Metcalf), 52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 670. 38 Am. St. Rep. 541, and Hardin v. Jordan, 140 U.S. 371, 372, 11 S.Ct. 808, 838. 35 L.Ed. 428, and see section 498, R.C. 1919. The exact question involved in this case was before this court in Olson v. Huntamer, 6 S.D. 364, 61 N.W. 479. In the majority opinion the cases of Flisrand v. Madson, 35 S.D. 457, 152 N.W. 796, and Anderson v. Ray, 37 S.D. 17, 156 N.W. 591, are cited. The questions that were considered by the court in those cases are not involved in this case in any manner whatever. The only questions that were considered in those cases are the rights of the public in the water in a lake, and the right of the public to maintain the water level to high-water mark by artificial means. The right of a third party — a mere interloper — to exclude a riparian owner from the use of land laid bare by the recession of the water below his meander line was not involved, nor thought of, and certainly not considered by the court when those cases were decided.

The facts in this case are on all fours with the facts in Olson v. Huntamer, supra. But in that case the lake involved is referred to as a nonnavigable lake. This fact is stressed in the majority opinion. But no rights are based upon this fact, and in the Flisrand Case, it is made very clear that as far as the rights of a riparian owner are concerned there is no difference whatever between a navigable lake and a nonnavigable lake. Indeed, those terms have no significance whatever. If any lake in South Dakota is a navigable lake, then every lake in the state is a navigable lake; and if any lake in the state is nonnavigable, then every lake in the state is nonnavigable for they are all exactly alike, all flat bottomed shallow lakes. During wet seasons they fill with water to high-water mark, and during dry seasons the water recedes from the high-water mark until, if the drought continues long enough, they dry up altogether. In the Flisrand Case it is pointed out that the same lake may be both navigable and nonnavigable. In that case the court quoting from Lamprey v. State (Metcalf), supra, say: "If the term `navigable' is not capable of a sufficiently extended meaning to preserve and protect the rights of the people to all beneficial public uses of these inland lakes, to which they are capable of being put, we are not prepared to say that it would not be justifiable, within the principles of the common law, to discard the old nomenclature, and adopt the classification of public waters and private waters. But, however that may be, we are satisfied that, so long as these lakes are capable of use for boating, even for pleasure, they are navigable, within the reason and spirit of the common-law rule. When the waters of any of them have so far receded or dried up as to be no longer capable of any beneficial use by the public, they are no longer public waters, and their former beds, under the principles already announced, would become the private property of the riparian owners."

And again quoting from Lamprey v. State (Metcalf), supra: "What has been already said is sufficient for the purposes of the present case; but, to avoid misconception, it is proper to consider, what is the definition or test of `navigability,' as applied to our inland lakes. The division of waters into navigable and nonnavigable is but a way of dividing them into public or private waters — a classification which, in some form, every civilized nation has recognized; the line of division being largely determined by its conditions and habits."

The question involved in this case is discussed at length in Hardin v. Jordan, supra, Lamprey v. State (Metcalf), supra, Olson v. Huntamer, supra, and Flisrand v. Madson, supra, and the only conclusion that can be drawn from what is said in these cases when applied to the present case, is that the plaintiff is entitled to recover and that the judgment appealed from must be affirmed.