IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35323-2008
LAKE CDA INVESTMENTS, LLC, and )
CHRIS KEENAN, ) Coeur d’Alene, April 2010 Term
)
Plaintiffs-Respondents, ) 2010 Opinion No. 63
)
v. ) Filed: June 2, 2010
)
IDAHO DEPARTMENT OF LANDS; ) Stephen W. Kenyon, Clerk
THE IDAHO STATE BOARD OF LAND )
COMMISSIONERS; and, THE STATE OF )
IDAHO, )
)
Defendants-Appellants, )
)
and )
)
IDAHO DEPARTMENT OF )
TRANSPORTATION, )
)
Intervenor-Appellant. )
Appeal from the District Court of the First Judicial District of the State of Idaho,
in and for Kootenai County. The Hon. John T. Mitchell, District Judge.
The judgment of the district court is affirmed in part and reversed in part.
The Hon. Lawrence G. Wasden, Attorney General, Boise, for appellants. David
Stanish argued on behalf of the Idaho Department of Lands and Chris Kronberg
argued on behalf of the Idaho Department of Transportation.
John F. Magnuson, Coeur d‘Alene, for respondents.
EISMANN, Chief Justice.
This is an appeal from a judgment of the district court vacating the denials of the
respondents‘ applications for dock permits on Lake Coeur d‘Alene and awarding judgments for
court costs and attorney fees against the Idaho Department of Lands and the Idaho
Transportation Department. We affirm the judgment vacating the denial of the dock permits, and
we reverse the judgments for court costs and attorney fees.
I. FACTS AND PROCEDURAL HISTORY
Lake CDA Investments, LLC, and Chris Keenan (Landowners) each own property littoral
to Lake Coeur d‘Alene. In 1911, one of the Landowners‘ predecessors in interest granted
Kootenai County a sixteen-foot wide easement across the properties for a road. In 1925, that
easement was expanded by grant to fifty feet in width. In 1940, another predecessor in interest
conveyed a right of way across the properties to the State of Idaho. That deed (1940 Deed)
purported to grant the State a right of way that was 125-feet wide. The legal description of the
right of way extended a considerable distance out into the lake. Only 0.92 acres of the right of
way was on the grantors‘ property, and the remaining 1.240 acres consisted of state-owned
lakebed. The 1940 Deed did not purport to transfer any riparian rights to the state, or to
extinguish the grantors‘ riparian rights. The State widened the existing road into a four-lane
highway. On that portion of the highway at issue in this case, the State placed substantial fill
into the lake along the shoreline in order to widen and straighten the road.
In the 1990‘s, the Idaho Transportation Department removed the two lanes of the
highway bordering on the lake and erected a guardrail along that portion of the highway to divide
the remaining two traffic lanes from the strip of land from which the two traffic lanes were
removed. That strip of land was converted into a bicycle/pedestrian trail and a park. On October
2, 1998, the Transportation Department and the Idaho Department of Parks and Recreation
(Parks Department) entered into a written agreement under which the Transportation Department
agreed that it will ―[r]etain jurisdiction, responsibility for, and provide maintenance of the traffic
roadway surface,‖ and the Parks Department agreed that it will ―[a]ccept in full and every respect
the maintenance and operation of and responsibility for the section of the bicycle/pedestrian
trail.‖
The State Board of Land Commissioners has the power to grant encroachments in aid of
navigation in or above the beds of navigable lakes, I.C. § 58-1303, which includes Lake Coeur
d‘Alene. It exercises that power through the Idaho Department of Lands. I.C. § 58-101. For
convenience, they will both be referred to as the ―Land Board.‖
2
In July 2006, Lake CDA Investments, LLC, submitted an application seeking permission
to construct a single family dock that would be contiguous with the shoreline of its property. In
November 2006, Chris Keenan submitted an application seeking permission to construct a
single-family dock that would be contiguous with the shoreline of his property. The
Transportation Department objected to both applications. The Land Board combined both
applications for hearing before a hearing officer, who held an evidentiary hearing on March 30,
2007.
A surveyor employed by the Transportation Department testified that in his opinion the
1940 Deed made the Landowners‘ riparian rights ―subordinate to the easement‖ in front of their
properties. His testimony indicated that he believed the easement granted by the 1940 Deed
extended out into the lake.
On May 18, 2007, the hearing officer issued his proposed findings of fact, conclusions of
law, and recommendation. He held that ―[i]t is established precedent in Idaho that a right-of-way
can sever riparian rights‖; that ―the littoral right became subordinate to the ‗highway‘ with the
1940 Right-Of-Way Deed‖; and that ―[w]hen that subordination occurred, the property lost those
parts of their littoral rights which support the ability to wharf out.‖ He concluded that without
those littoral rights, the owners of the properties were not qualified to apply for a dock permit.
He also concluded that the Transportation Department still owns the highway; that the
navigational encroachments will be placed on the highway; and that the Department believes
―the navigational encroachments will potentially compromise the road prism and potentially
limit their ability to maintain and repair that road prism and therefore [it] will not authorize, or
permit, the subject navigational encroachments.‖ This latter finding was based upon conclusory
hearsay testimony provided by the surveyor who testified on behalf of the Transportation
Department.
The hearing officer recommended that the dock permits be denied. The Land Board
accepted the hearing officer‘s findings of fact and conclusions of law and denied the dock
permits.
The Landowners each timely filed a petition for review with the district court. The
Transportation Department sought and was granted permission to intervene, and both appeals
were consolidated. The district court held that neither the 1940 Deed granting the State an
easement down to the ordinary high water mark nor the State‘s action in placing fill in the lake
3
affected the Landowners‘ littoral rights. The court therefore vacated the Land Board‘s decisions
denying the Landowners‘ respective applications for dock permits. The court also held that the
Landowners were entitled to an award of court costs and attorney fees pursuant to Idaho Code §
12-117. It awarded judgments for court costs and attorney fees totaling $23,128.51 against the
Land Board and Transportation Department, and they both timely appealed.
II. ANALYSIS
The denials of the Landowners‘ applications to construct navigational encroachments
were subject to review by the district court pursuant to Idaho Code §§ 58-1305(c) and 58-
1306(c). The Land Board‘s decisions must be affirmed unless its findings and conclusions are:
(a) in violation of constitutional or statutory provisions; (b) in excess of its statutory authority;
(c) made upon unlawful procedure; (d) not supported by substantial and competent evidence; or
(e) arbitrary, capricious, or an abuse of discretion. Dupont v. Idaho State Bd. of Land Comrs.,
134 Idaho 618, 621, 7 P.3d 1095, 1098 (2000). ―When the district court acts in its appellate
capacity, we review the decision of the district court to determine whether it correctly decided
the issues presented to it on appeal.‖ Idaho Dept. of Health and Welfare v. Doe, 148 Idaho 124,
126, 219 P.3d 448, 450 (2009).
A. Did the 1940 Right-of-Way Deed Extinguish the Grantors’ Littoral Rights?
In reaching its decision, the Land Board stated, ―It is established precedent in Idaho that a
right-of-way can sever riparian rights.‖ It then held that the littoral rights associated with the
Landowners‘ properties were subordinate to the highway easement granted by the 1940 Deed
and that ―[w]hen that subordination occurred, the property lost those parts of their littoral rights
which support the ability to wharf out.‖ Without those littoral rights, the Board held that the
Landowners were not qualified to apply for dock permits. The district court held that the 1940
Deed granted the State only an easement1 and that the easement did not extinguish any of the
grantors‘ littoral rights.
1
When the 1940 Deed was granted, the State took only an easement. Idaho Code Annotated § 39-301 (1932)
provided:
Public acquires only an easement. – By taking or accepting land for a highway, the public
acquires only the right of way and the incidents necessary to enjoying and maintaining it. All
4
The Land Board argues that the district court erred because the easement granted by the
1940 Deed is subject to the Transportation Department‘s easement. According to the Board,
―The Land Board‘s finding that the Applicants‘ use of the shoreline for docking purposes was
subject to ITD‘s use of the same for highway purposes pursuant to the 1940 right-of-way deed
was supported by well established principles of easement law.‖ It is not clear what the Land
Board understood the width of the easement to be. Not all of the testimony of the surveyor who
testified regarding this issue on behalf of the Transportation Department is preserved in the
record.2 However, it appears from his testimony that he believed the size and location of the
easement are reflected in the 1940 Deed. The Land Board‘s findings referred to the easement
without stating its size.
The 1940 Deed did not grant an easement over the land at issue. Under Idaho law, a
littoral owner on a navigable lake takes title down to the ordinary high water mark as it existed in
1890 when the State was admitted into the union, and the title to the lakebed below the ordinary
high water mark is held by the State in trust for the use and benefit of the public. In re Sanders
Beach, 143 Idaho 443, 453, 147 P.3d 75, 85 (2006). Because they did not own the land below
the ordinary high water mark, the grantors under the 1940 Deed could not convey an easement to
the State in the lakebed below the ordinary high water mark. They could not grant an easement
in land they did not own. Williams v. Sherman, 36 Idaho 494, 507, 212 P. 971, 976 (1922). The
easement they granted only extended down to the ordinary high water mark. The State then
added fill on State land (the lakebed below the ordinary high water mark) in order to widen the
highway to four lanes and to straighten it. It later removed the two traffic lanes closest to the
lake, and that land became a bicycle/pedestrian trail and a park. That trail and park are located
trees within the highway, except only such as are requisite to make or repair the road or bridges on
the same land are for the use of the owner or occupant of the land.
That statute had existed since territorial times. Idaho Terr. Rev. Stat. § 860 (1887). In 1953, the legislature
amended the statute so that it would read as follows:
Public acquires fee simple title. By taking or accepting land for a highway, the public
acquires the fee simple title to said property. Providing that the person or persons having
jurisdiction of such highway may take or accept such lesser estate as they may deem requisite for
their purposes.
Ch. 100, § 1, 1953 Idaho Sess. Laws 134, 135. No party has challenged on appeal the district court‘s finding that
the 1940 Deed granted only an easement.
5
on the fill. If the Landowners were granted their requested dock permits, the ramps from the
docks to the shore would end on the fill. Because the Transportation Department does not have
an easement over the fill, the littoral rights could not be subject to such nonexistent easement.
The Transportation Department argues that the district court erred in concluding that this
case is not controlled by Bowman v. McGoldrick Lumber Co., 38 Idaho 30, 219 P. 1063 (1923).
That case held that the owner of lots abutting on Lake Coeur d‘Alene did not have any littoral
rights along that portion of the shoreline over which there was a railroad right of way that
extended down to the ordinary high water mark of the lake. The Bowman court based its
decision upon the conclusion that ―the nature of the grant made in this case as to the right of way
and station grounds is a base, qualified, or limited fee and is more than a mere easement, giving
the exclusive possession and right of use of the land for the purposes contemplated by the law.‖
Id. at 33, 219 P. at 1064 (emphasis added).
Analysis of the Bowman decision should begin with the decision of the United States
Supreme Court in Missouri, Kansas and Texas Railway Co. v. Roberts, 152 U.S. 114 (1894),
which was an action in ejectment to recover possession of lands held by the railroad company
pursuant to the Act of July 26, 1866 (14 Stat. 289). The Act included a provision stating, ―That
the right of way [200 feet wide] through the public lands be, and the same is hereby, granted to
said Pacific Railroad Company, southern branch, its successors and assigns, for the construction
of a railroad as proposed . . . .‖ § 6, 14 Stat. 289, 290. The Supreme Court held that ―[t]he title
to the land for the 200 feet in width thus granted vested in the company, either upon the passage
of the act of congress, July 26, 1866, or upon the construction of the road . . . .‖ 152 U.S. at 116.
Four years later, in Territory of New Mexico v. United States Trust Co. of New York, 172
U.S. 171 (1898), the Supreme Court addressed the issue of what is meant by the phrase ―right of
way‖ in the grant of a right of way to a railroad. The Court stated, ―So, this court in Railway Co.
v. Roberts, 152 U.S. 114, 14 Sup. Ct. 496, passing on a grant to one of the branches of the Union
Pacific Railway Company of a right of way 200 feet wide, decided that it conveyed the fee.‖ 172
U.S. at 182. The Territory sought to distinguish that case on the ground that the distinction
between an easement and the fee was not raised. The Court responded to that argument by
stating, ―The difference between an easement and the fee would not have escaped his [Mr.
2
Much of his testimony is pointing to what is shown on exhibits, but where he was pointing is not preserved in the
record.
6
Justice Field‘s] attention and that of the whole court, with the inevitable result of committing it
to the consequences which might depend upon such difference.‖ Id. It also added, ―But if it may
not be insisted that the fee was granted, surely more than an ordinary easement was granted, one
having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of
the fee, and, like it, corporeal, not incorporeal, property.‖ Id. at 183 (emphasis added).
In Oregon Short Line Railroad Co. v. Stalker, 14 Idaho 362, 377, 94 P. 56, 60 (1907),
this Court addressed the nature of a railroad‘s right to land granted adjacent to its right of way for
―station-buildings, depots, machine shops, side-tracks, turn-outs, and water-stations‖ pursuant to
the Act of March 3, 1875. § 1, 18 Stat. 482, 482. The railroad‘s predecessor had complied with
the statutory requirements for obtaining a grant of land in Meridian, Idaho, for a station and
depot. The land office lost or misplaced the map designating the land granted and did not record
the grant on its plat. Thereafter, the government issued a patent to 160 acres of land, which
included the land granted to the railroad. The 160 acres were later platted, and the defendant-
appellant purchased four of the lots. The railroad brought an action to eject him from those lots,
claiming that they were part of the land granted to the railroad for station and depot purposes. At
that point, the railroad had never occupied or used any of that ground. The trial court granted
judgment for the railroad, and the purchaser of the four lots appealed. In holding for the railroad,
this Court stated:
There [Territory of New Mexico v. United States Trust Co. of New York, 172 U.S.
171, 183 (1898)] it is held that such grants have the ―attributes of the fee,
perpetuity and exclusive use and possession.‖ There is nothing in the contention
of counsel that the appellant who holds the legal title has the right to the use and
possession of said station ground until it is needed by the company, as the
company, under the authorities, has the exclusive right to the use, possession, and
occupation of the ground, whether its buildings and improvements cover it all or
not.
14 Idaho at 390, 94 P. at 65.
The railroad right of way at issue in Bowman v. McGoldrick Lumber Co., 38 Idaho 30,
219 P. 1063 (1923), was based upon the Act of March 2, 1899 (30 Stat. 990) under which
railroads could obtain rights of way through Indian reservations. The Bowman court noted that
this Act was similar to the Act considered by the court in the Oregon Short Line case. Id. at 33,
219 P. at 1064. In holding that a railroad right of way was a base, qualified, or limited fee and
7
more than a mere easement, the Bowman court quoted the above-quoted portion of the Oregon
Short Line decision. It then stated,
Under said decision it is apparent that the nature of the grant made in this
case as to the right of way and station grounds is a base, qualified, or limited fee
and is more than a mere easement, giving the exclusive possession and right of
use of the land for the purposes contemplated by the law; a reversionary interest
remaining in the United States to be conveyed by it to the person to whom the
land may be patented whose rights will be subject to those of the grantee of the
right of way and station grounds.
Id.3 Thus, the Bowman court based its holding that the landowner had no littoral rights because
of the railroad right of way that extended along the shore down to the ordinary high water mark
upon the understanding that the railroad right of way ―is a base, qualified, or limited fee and is
more than a mere easement.‖
Nineteen years later, the United States Supreme Court addressed the issue of grants for
railroad rights of way made under statutes enacted after 1871, which would include the statute
under which the right of way was granted in Bowman. In Great Northern Railway Co. v. United
States, 315 U.S. 262 (1942), the issue was whether the railroad had any right to the oil and
minerals underlying its right of way acquired under the Act of March 3, 1875. The Court noted,
―Beginning in 1850 Congress embarked on a policy of subsidizing railroad construction by
lavish grants from the public domain. This policy incurred great public disfavor . . . . After 1871
outright grants of public lands to private railroad companies seem to have been discontinued.‖
315 U.S. at 273-74. The Court held, ―The Act of March 3, 1875, from which petitioner‘s rights
stem, clearly grants only an easement, and not a fee.‖ 315 U.S. at 271. Thus, the Bowman court
was incorrect in holding that the railroad right of way ―is a base, qualified, or limited fee and is
more than a mere easement.‖ 38 Idaho at 33, 219 P. at 1064.
The Transportation Department contends that because the Bowman court incorrectly
based its decision upon the premise that a railroad right of way was a base, qualified, or limited
3
The Bowman court incorrectly stated that the quoted portion of the Oregon Short Line decision was speaking about
Missouri, Kansas and Texas Railway Co. v. Roberts, 152 U.S. 114 (1894). The Oregon Short Line court had quoted
from the Territory of New Mexico case, including that Court‘s discussion of the Missouri, Kansas and Texas
Railway Co. case. The Oregon Short Line court then wrote, ―And the court further said: . . . .‖ The court to which it
was referring was the court in the Territory of New Mexico case, but the Bowman court incorrectly wrote that it was
referring to the court in the Missouri, Kansas and Texas Ry. Co. case.
8
fee which is more than a mere easement, its opinion should now be read as holding that a mere
easement can extinguish littoral rights. The Department argues as follows:
In Bowman v. McGoldrick Lumber Co., 38 Idaho 30, 219 P. 1063 (1923),
this Court held that a railroad right-of-way, granted pursuant to an act of
Congress, ―is a base, qualified, or limited fee and is more than a mere easement,
giving the exclusive possession and right of use of the land for the purposes
contemplated by the law . . . .‖ Bowman, 38 Idaho at ___, 219 P. at l064. Based
on such reasoning, this Court held that the landowner, Bowman, had no riparian
rights where the railroad easement went down to high water mark of Lake Coeur
d‘Alene. Bowman, 38 Idaho at ___, 219 P. at 1065.
....
. . . . If [due to the decision in Great Northern Railway Co.] the grant was
an easement rather than a grant in fee, then clearly Bowman stands for the
proposition that an easement can sever or subordinate littoral rights attached to the
underlying property, thereby depriving the fee owner of the ability to exercise
such rights.
The Department‘s reasoning is flawed. It acknowledges that the holding in Bowman was
based upon the court‘s understanding that the railroad right of way ―is a base, qualified, or
limited fee and is more than a mere easement, giving the exclusive possession and right of use of
the land for the purposes contemplated by the law.‖ Nineteen years later, the United States
Supreme Court decided the Great Northern Railway Co. case, which showed that the Bowman
court mischaracterized the nature of the easement. If the Bowman court had known that the right
of way was only an easement, there is no logical reason to believe that the Bowman court would
have arrived at the same holding. Since it stressed as the basis for its decision that the railroad
right of way was more than a mere easement, there is no logical reason to believe it would have
reached the same result had it known that the right of way was only a mere easement.
The Department also argues that a highway right of way is not a ―mere easement,‖ but is
similar to a railroad easement, and therefore the Bowman holding should apply to this case.
Citing State ex rel. Burns v. Kelly, 89 Idaho 139, 403 P.2d 566 (1965), it argues that ―not even
the fee owner of the land underlying a public highway has the right to encroach on the highway
easement.‖ That case addressed the right of the State to compel a landowner to remove a sign
from a state highway right of way where the State had only an easement for the right of way.
The highway at issue in that case was a federal aid project, and federal regulations provided that
―all real property, including air space, within the right-of-way boundaries of a project shall be
devoted exclusively to public highway purposes.‖ Id. at 143, 403 P.2d at 567. The court
9
concluded that the landowner‘s sign ―constituted an encroachment thereon and a violation of
federal regulation.‖ Id. at 144, 403 P.2d at 568. There is no contention in this case that the
federal regulations at issue in State ex rel. Burns applied when the 1940 Deed was issued.
This Court has not resolved the issue of whether, under Idaho law, the owner of land
subject to an easement for a highway, road, or street can make use the land subject to the
easement as long as it does not interfere with the free flow of traffic. In City of Nampa v.
Swayne, 97 Idaho 530, 547 P.2d 1135 (1976), we noted a conflict in this Court‘s decisions, with
some holding that the landowner could do so and other cases indicating to the contrary. Id. at
533, 547 P.2d at 1138. We did not resolve that legal issue in City of Nampa because the
encroachments involved in that case actually did interfere with the lawful and usual use of the
highway surface. Id.
We addressed the difference between a railroad right of way and a canal right of way in
Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 277 P. 542 (1929). The plaintiff had
recovered a judgment against the canal company for the value of the plaintiff‘s bull that died as a
result of injuries sustained by it falling into a waste ditch or spillway controlled by the canal
company. On appeal, one of the arguments raised by the canal company was that its grant of a
right of way pursuant to federal law gave it the rights of an absolute owner, that it was entitled to
the exclusive possession of the right of way, that the plaintiff‘s bull was trespassing, and that the
canal company could only be liable for wantonly or willfully injuring it. The canal company
contended ―that by this grant [of a right of way] it acquired the same rights as railroads acquire
under similar grants.‖ 47 Idaho at 626, 277 P. at 544.
In rejecting that argument, the Coulsen court reasoned that the grant of a railroad right of
way was substantially different from other grants for rights of way because of the character of
the contemplated use. A railroad must have exclusive possession of and complete dominion over
its right of way, enjoying the rights which usually attend fee ownership. That distinguished
railroad rights of way from other rights of way, including that for the canal. The court stated as
follows:
A grant of land to a railroad for right of way purposes is substantially different
from any like grant for other purposes. The character of the contemplated use
makes it different. It is intended that the use by a railroad company will be
perpetual and continuous. A railroad company performs a public service and is
burdened with a public duty. In the performance of that duty it is held to the
exercise of the highest degree of care, and the complete, convenient, and safe use
10
of its right of way requires that its possession be exclusive—a possession not
shared with another; that it have complete dominion over its right of way and that
it enjoy all those rights which usually attend the fee.
....
Railroad rights of way are distinguished from other ways principally, if
not entirely, by the difference in use. There is not the same necessity for
exclusive possession of a right of way by canal companies as by railroads. The
reasons for according to railroads the right to the exclusive possession are not
applicable to canal companies. The use of right of way for a ditch or canal does
not require the exclusive possession of, or complete dominion over, the entire
tract which is subject to the ―secondary‖ as well as the principal easements.
Id. at 626-27, 277 P. at 544-45 (citations omitted).
As stated above, because of the character of the contemplated use, the grant of a railroad
right of way requires that the railroad company‘s possession be exclusive. ―[A]n exclusive
easement is an unusual interest in land; it has been said to amount to almost a conveyance of the
fee.‖ Latham v. Garner, 105 Idaho 854, 856, 673 P.2d 1048, 1050 (1983). ―Because an
exclusive grant in effect strips the servient estate owner of the right to use his land for certain
purposes, thus limiting his fee, exclusive easements are not generally favored by the courts.‖ Id.
Unlike a railroad right of way, an easement for a street, road, or highway is not granted
for the exclusive use of a private entity. It is likewise not even granted for the exclusive use of
the public entity owning the easement. ―[A]ll roads, streets and highways are held in trust by the
state and its political subdivisions for use by the public.‖ State ex rel. Rich v. Idaho Power Co.,
81 Idaho 487, 506, 346 P.2d 596, 606 (1959). An easement for a highway right of way is not
sufficiently similar to an easement for a railroad right of way to hold that the Bowman opinion
applies to highway easements.
In West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973), the issue of whether an easement
for a public road could extinguish littoral rights could have been, but was not, raised on appeal.
The plaintiffs owned a lot that was littoral to Lake Coeur d‘Alene. Their lot was crossed by an
easement for a county road that ended in a turnaround at the lake where a ferry formerly docked.
The easement extended down to the water‘s edge. The defendants owned a houseboat that was
moored to pilings driven into the lake bed, and they had a catwalk from their houseboat to the
road easement. In holding that the presence of the catwalk interfered with the plaintiffs‘ littoral
rights, we stated:
11
The littoral owner‘s right of access to the lake, free from unreasonable
interference, attaches to all points of his shoreline, and in the case before us, the
district court came to the undisputed conclusion that appellants’ right to access to
the lake was not extinguished by the county roadway easement. A fixed structure
connecting a houseboat to the shore, erected by a private person for his own
benefit, that permanently and continuously cuts off the littoral owner‘s access to
the lake at that point constitutes an unreasonable interference with the upland
owner‘s littoral rights and may properly be enjoined.
95 Idaho at 555, 511 P.2d at 1331 (footnotes omitted; emphasis added). Although it may be
reasonable to assume that had the West court disagreed with the district court‘s undisputed
conclusion, it would have so indicated. However, the court merely stated that the district court‘s
conclusion without expressly agreeing or disagreeing with it. We are now presented with the
issue, and we hold that an easement for a public street, road, or highway that extends down to the
ordinary high water mark of a navigable lake does not terminate the littoral rights of the
landowner whose property is subject to the easement. That is consistent with the general law.
―[L]and which is separated from water by a highway or street in which the landowner holds the
fee . . . is riparian land, regardless whether the highway is dedicated to public use or to private
use by a finite number of persons.‖ 78 Am. Jur. 2d Waters § 40 (2002). In addition, had the
State wanted to purchase the littoral rights when it acquired the easement under the 1940 Deed, it
could have done so.
B. Did the State’s Placing of Fill Along the Shoreline to Widen and Straighten the Road
Extinguish the Littoral Rights?
The Land Board did not address the issue of whether the State‘s action in placing fill in
the lake had any impact on their littoral rights. Based upon decisions from other jurisdictions,
the district court held that the fill added to the lakebed along the shore belongs to the riparian
owner. It therefore concluded that the State‘s action had no effect on the Landowners‘ littoral
rights. The Land Board contends that the district court erred in passing on the ownership of the
fill because that issue was not raised in the administrative proceedings. The Transportation
Department contends that the fill remains impressed with the public trust.
In Idaho Forest Industries, Inc. v. Hayden Lake Watershed Improvement District, 112
Idaho 512, 521, 733 P.2d 733, 742 (1987), we held that ―filled or otherwise drained trust land
must remain impressed with the public trust.‖ The lakebed below the ordinary high water mark
12
was public trust land before the fill was placed in the lake to widen and straighten the highway,
and the fill placed on that public trust land is likewise public trust land.
The placing of the fill did not eliminate the Landowners‘ littoral rights. The effect of the
fill was to move the water‘s edge away from the Landowners‘ properties. The Landowners
would have to cross the fill, which is public trust land, to access the lake. Without the fill,
littoral landowners would also have to cross public trust land in order to exercise their littoral
rights when the water level is below the ordinary high water mark. ―[O]ne of the basic rights
enjoyed by owners of properties upon a navigable lake is the right to have access to the waters of
such lake at the low water mark; this right is valuable and in many instances it is the controlling
aspect of the value of such lands.‖ Driesbach v. Lynch, 71 Idaho 501, 508, 234 P.2d 446, 450
(1951). Therefore, the fill placed on the lakebed by the State did not destroy the Landowners‘
littoral rights.
C. Can the Denial of the Dock Permits Be Upheld on the Ground that the Docks Would
Interfere with the Transportation Department’s Right of Way?
A Land Board regulation provides, ―Nothing in these rules shall excuse a person seeking
to make an encroachment from obtaining any additional approvals lawfully required by federal,
local or other state agencies.‖ IDAPA 20.03.04.020.03. It held that pursuant to such regulation
the Landowners could not obtain dock permits without encroachment permits from the
Transportation Department. The district court did not address this issue. Both the Land Board
and the Transportation Department argue on appeal that the Landowners were required to obtain
highway encroachment permits from the Department in order to obtain their requested dock
permits.
The Transportation Department argues, ―The ITD controls encroachments upon a state
highway right-of-way, and Keenan and Lake CDA have no more right to encroach upon such a
right-of-way without an ITD permit than a stranger to the title of their property.‖ The Land
Board argues that the Landowners needed encroachment permits from the Transportation
Department and that ―the Land Board is . . . free to deny a permit pending final approval from
applicable governmental agencies.‖
The Transportation Department‘s regulations define an ―encroachment‖ as ―[a]ny
authorized or unauthorized use of highway right-of-way or easements or the air space
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immediately above the highway right-of-way.‖ IDAPA 39.03.42.010.30. As explained above,
there is no easement on the fill where the ramp from the proposed docks to the shore would rest.
Thus, for there to be an encroachment, that portion of the fill would have to be part of the
highway right of way. A ―highway right-of-way‖ is defined as ―[p]roperty rights to land
generally designated for transportation purposes, open to the public, and under the jurisdiction of
a Public Highway Agency.‖ The land where the proposed ramps would rest is not ―land
generally designated for transportation purposes.‖ It is currently designated as a
bicycle/pedestrian trail and park.
―Appurtenant to his ownership of lake front property, the littoral landowner normally
possesses certain littoral rights. These include the right of access to the water, and, subject to
state regulation, the right to build wharves and piers in aid of navigation.‖ West v. Smith, 95
Idaho 550, 554, 511 P.2d 1326, 1330 (1973) (footnotes omitted). The proposed docks would be
out in the water, and the ramp connecting the docks would rest on that part of the shore
waterward from the bicycle/pedestrian trail. That land is public trust land, is not part of a
highway right of way, and therefore a highway encroachment permit was not required.4
D. Did the District Court Err in Awarding Attorney Fees against the Land Board and the
Transportation Department?
Pursuant to Idaho Code § 12-117, the district court awarded judgments against the Land
Board and Transportation Department for court costs and attorney fees totaling $23,128.51.
Both entities challenge that award on appeal. The version of Idaho Code § 12-117(1) that was in
effect when the district court awarded court costs and attorney fees provided:
Unless otherwise provided by statute, in any administrative or civil
judicial proceeding involving as adverse parties a state agency . . . and a person,
the court shall award the prevailing party reasonable attorney‘s fees, witness fees
and reasonable expenses, if the court finds that the party against whom the
judgment is rendered acted without a reasonable basis in fact or law. 5
The statute requires that the person and the state agency be adverse parties. The Land
Board first argues it ―was not an adversary to the Applicants below; instead, the Land Board,
4
There is nothing in the record indicating that the Land Board gave the Transportation Department or its
predecessor an easement over this land or any right to control it.
5
Effective March 4, 2010 the statute was amended. I.C. § 12-117(1) (Westlaw current through 2010 Reg. Sess.).
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through IDL, merely provided a forum for the Applicants and the objectors to present their
cases.‖ If the agency does not participate in the merits of the appeal to the district court, then it
and the person are not adverse parties, even if the agency made the decision being appealed.
Neighbors For Responsible Growth v. Kootenai County, 147 Idaho 173, 177, 207 P.3d 149, 153
(2009); Galli v. Idaho County, 146 Idaho 155, 161, 191 P.3d 233, 239 (2008). In this case, the
Lands Department did participate in the appeal seeking to defend its actions on the merits.
Therefore, it was a party adverse to the Landowners.
To be subject to an award of attorney fees, the party adverse to the prevailing party must
also have ―acted without a reasonable basis in fact or law.‖ I.C. § 12-117(1). The Land Board‘s
decision certainly has the appearance of being arbitrary and capricious. In a two mile stretch of
shoreline that included the locations of the Landowners‘ proposed docks, there were thirty other
private docks. In addition, about two months earlier the Land Board had approved, over the
objection of the Transportation Department, a dock permit for a property that had previously
been part of the same parcel as the Landowners‘ properties. However, we have not previously
expressly ruled that an easement for a public road that extends down to the ordinary high water
mark does not extinguish the littoral rights of the servient estate. Therefore, we hold that the
Land Board and Transportation Department did not act without a reasonable basis in fact or law
in arguing against the Landowners‘ appeals to the district court.
We have held that ―I.C. § 12-117 provides the exclusive basis upon which to seek an
award of attorney fees against a state agency.‖ State v. Hagerman Water Right Owners, Inc.
(HWRO), 130 Idaho 718, 723, 947 P.2d 391, 396 (1997). Because that statute also applies to the
award of ―witness fees and reasonable expenses,‖ it would also provide the exclusive basis for
awarding court costs. We therefore reverse the district court‘s award of court costs and attorney
fees against the Land Board and Transportation Department.
E. Are Landowners Entitled to an Award of Court Costs and Attorney Fees on Appeal
Pursuant to Idaho Code § 12-117?
The Landowners are not entitled to an award of court costs and attorney fees on appeal
unless the Land Board and/or Transportation Department ―acted without a reasonable basis in
fact or law.‖ I.C. § 12-117(1) (Westlaw current through 2010 Reg. Sess.). The district court
held that the Landowners owned the fill placed in the lake to widen and straighten the road. The
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Appellants did not act without a reasonable basis in fact or law in challenging that holding. We
therefore do not award attorney fees on appeal to the Landowners.6
III. CONCLUSION
We affirm the judgment of the district court vacating the Land Board‘s final order dated
May 21, 2007, and we reverse the judgments against the Land Board and the Transportation
Department for court costs and attorney fees. We do not award court costs or attorney fees on
appeal.
Justices BURDICK, J. JONES, HORTON and J. Pro Tem REINHARDT CONCUR.
6
We express no opinion as to whether the current version of Idaho Code § 12-117 would apply to this appeal. In
2010, the Legislature amended Idaho Code § 12-117 and made the amendment effective on March 4, 2010, and
retroactive to May 31, 2009. The prior version of the statute provided that in appropriate cases a court could award
―in any administrative or civil judicial proceeding.‖ In Rammell v. Idaho Department of Agriculture, 147 Idaho 415,
210 P.3d 523 (2009), we held that the prior version of the statute did not authorize the administrative agency to
award attorney fees because it was not a court, nor did it authorize a court hearing an administrative appeal to award
attorney fees for proceedings in the administrative agency. Id. at 422-23, 210 P.3d at 530-31. In doing so, we
stated, ―the language of the statute reads ‗in any administrative or civil judicial proceeding,‘ which could either
mean (1) in any administrative proceeding or civil judicial proceeding, or (2) in any administrative judicial
proceeding or civil judicial proceeding. We now hold that the statute means the latter . . . .‖ Id. A civil judicial
proceeding would be a civil lawsuit filed in court, and an administrative judicial proceeding would be the appeal of
an administrative proceeding to a court. In 2010, the legislature amended the statute to allow administrative
agencies to award attorney fees under the statute. In doing so, it changed the wording so that the statute applies ―in
any administrative proceeding or civil judicial proceeding.‖ I.C. § 12-117(1) (Westlaw current through 2010 Reg.
Sess.). Because we defined the words ―civil judicial proceeding‖ to mean civil lawsuits, which may not include
appeals of administrative proceedings to a court, the statute as amended may not now apply to such appeals.
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