Webber v. Axtell

LEWIS, J.

(dissenting).

The decision is based upon the ground that the plaintiff, as riparian owner, was, by virtue of his patent, vested with a contingent interest in all relictions which might be subsequently developed.

According to the findings, it must be conceded that at the time of the second survey in 1885 the island had not become connected with the mainland by formation of the sand bar, although the lake had been falling gradually for several years. At the time his patent was issued, plaintiff acquired no right, title, or interest in the island upon any theory of the law. This is not within the doctrine of the Schurmeier case, for the reason that prior to 1885 there was a well-defined open and navigable portion of the lake between the shore and the island, and defendants’ title vested before plaintiff’s accrued. Plaintiff was not the owner at that time under the principles announced in the Tamprey casé, for the reason that, the lake being navigable, his line of ownership was limited to the water’s edge, and his title as riparian owner by reliction and accretion did not accrue in time to avail him.

I do not concur in the views upon which the decision rests, viz., that the riparian owner acquired with his patent to the shore land a contingent interest in and to the island, based upon the' possibility that at some future time, either by the action of or the recession of the waters, the island would become connected with the mainland, regardless of other rights subsequently acquired. In stating the general principles with reference to the title to such bodies of water, it is said in the case of Lamprey v. State, supra: Where a meandered body of water is in fact nonnavigable, the patentee of the land bordering on it takes to the middle of the lake, and, where the lake is navigable in fact, its waters and bed belong to the state in its sovereign capacity, and the riparian patentee takes the fee only to the water’s edge, but with all the rights incident to riparian ownership of navigable waters, including the rights of accretions formed or produced in front of his land by the action or recession of the waters; that such riparian *383rights rest upon the title to the bank or shore, and not upon the title to the soil under the water.

The only theory which seems at all debatable to justify the views of the majority as to a contingent interest is that the government released and abandoned all claim to the island by not having originally surveyed it, although it was designated as an island on the plat and was mentioned several times in the field notes. It may have been considered too small to warrant a survey, but how does that fact indicate an intention on the part of the government to relinquish all title in favor of the shore land? If we are to adhere to the doctrine that the riparian owner is limited to the shore line of navigable waters, with the incidental right of access, etc., I am unable to see upon what theory the government should be held to have abandoned its claim to the island in question merely because it was not included in the original survey. And, if such was the effect at that time, the government afterwards asserted its claim, had the island surveyed, and recognized the title of defendants’ grantors. At the time the government so took possession of the island in 1885, had it surveyed, and permitted defendants’ grantors to take possession and acquire title thereto, plaintiff had never asserted any right, title, or interest therein. The island in no manner originally entered into the computation to make up the number of acres applied for by him as a homestead. It was never treated either by him or the government as a part of his original claim.

On the other hand, as the evidence discloses, for a number of yéars plaintiff had acquiesced in the subsequent assertion of title by the government and those who settled thereon. While such acquiescence may not in law amount to an estoppel, it indicates very fully that up to that time, at least, plaintiff never asserted upon any ground whatever that he was entitled to the same. As bearing upon the question of title to islands under similar circumstances, the following cases may be considered: Steinbuchel v. Lane, 59 Kan. 7, 51 Pac. 886; People v. Warner, 116 Mich. 228, 74 N. W. 705; Bonewits v. Wygant, 75 Ind. 41; Harding v. Minneapolis Northern Ry. Co., 55 U. S. App. 257, 84 Fed. 287, 28 C. C. A. 419. The last-named case was one involving title to a part of an island in the Mississippi river at Minneapolis, and has an important bearing upon the question under discussion. My *384view, is that, if the government claimed the island before it was acquired by plaintiff by recession of the waters, and defendants’ grantors acquired title direct from the government before the alleged contingent interest in plaintiff became vested, they cannot be divested simply because subsequently a sand bar appeared, connecting the island with plaintiff’s land.

A new trial should be granted.