
    ANDERSON et al., Appellants, v. RAY et al., Respondents.
    (156 N. W. 591.)
    (File No. 3770.
    Opinion filed March 4, 1916.
    Rehearing denied April 11 ,1916.)
    1. Waters — “Navigable Lake” — “Public Waters” — Rights oí Public as to Recreative Resort — Statute.
    A meandered lake covering several thousand acres1 when at high-water mark, whose depth depends entirely ‘ upoñ the seasons, being two to four feet' deep in seasons following unusual rain-'or snowfall, but which- in a succession of dry seasons contains water in bü,t a few of the lower portions of its -bed, and which may have an underground-outlet, is a “navigable'lake,” within the meaning of Laws- 1913, Ch. 18; authorizing -county commissioners to construct artesian wells for the' ¡purpose of maintaining water in meandered lakes to make' them available for rowing, fishing, fowling, bathing,.--and for other -purposes,' and such waters are “public waters” belonging to- the .-state for the .benefit of the-people, and should-be,-preserved-as -places of recreation. • • ■ . ■ ■ •
    2.- Waters — Navigable Lake — -Receding Waters — Reliction. -
    -That during a series of dry seasons the water in a- meandered lake recedes until the greater ¡part of the: entire bed is dry, but during11 thirty-five- years no permanent diminution of water flowing into it was experienced, does not show, a reliction of land on its border by a permanent retirement of water therefrom.
    S.Appeals — Review—Rake Bed Rands — Erroneous Finding of Re-licted Rand — Harmless Error — Statute.
    In a suit by riparian owners to enjoin filling of a large meandered lake with artesian waters, pursuant to Laws 1913, Ch. 18, for purposes of recreation therein specified, no reliction of the bed of the lake having occurred to vest .title thereto in riparian proprietors-, held, that a conclusion of law that title to all relicted lands of said lake was in the state, is erroneous and' misleading, as implying that the state took titlei by reliction, and that reliction had taken place; but it is not prejudicial as against plaintiffs.
    4. Navigable Waters — Meandered Rake Bed — Title to Submerged Non-relicted Rand — Public Rights — Statute.
    Thei state is the owneir of the bed of a meandered lake on whose borders adjacent to riparian proprietors no relicted land exists; such ownership being subject to the limitations of Civ. Code, .Sec. 192, declaring that ownership of land below the water of a navigable lake is regulated by federal or state laws; and the state holds such title in .trust for the benefit of the public.-
    5. Same — Meander Line of - Rake — Boundary of Riparian Owner’s Rand — Row-water Mark Distinguished from Meander Riñe— Statute.
    Under Civ. Code, Sec. 289, a riparian proprietor takes title to- the low-watea- mark of a navigable lake, his qualified ownership not being limited to the meander line.
    6. Waters — Rake Waters Between High and Row-water Mark— Right of Public to Use, as Against Riparian Owners — Injunction — Statute
    The title of a riparian owner of land between high and low-wafer mark in a meandered laker being qualified or limited by and subject to the rights of the public, held, that the state may raise the level of the waters by flowage from artesian wells, sufficient ;to make them available for fishing, rowing, bathing, etc., under Laws 1913, Ch. 18, and such owners may not enjoin their use for those purposes.
    
      7. Same — Meandered Rake Bed — “High-water” Mark — Duration of Occupancy of Water as Test.
    “High-water” mark, as applied to fresh-water lakes, and as a line between riparian owners and the public, means a watermark, being coordinatei with the limit of the lake-bed occupied •by water sufficiently long and continuously to destroy its value for agricultural purposes; and is a question of fact to be determined in each case.
    
      Appeal from Circuit Court, Brule County: Hon. FRANK B. Smith, Judge.
    Action by O. E. Anderson and others, against Fred Ray and others, to enjoin the raise of water in a 'meandered lake from flowage from artesian wells. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.
    Affirmed.
    
      Broten & Brown, for Appellants.
    
      C. C. Caldwell, Attorney General, Byron S-. Payne, Assistant Attorney General, and B. R. Slifer, State’s Attorney; for Respondent.
    (1) To point one of the opinion, Appellants cited: Harrison v. Fite, 148 Fed. 781, 78 C. C. A. 447, (Ar.lc.); 29 Cyc. 293; Bolsa Land Co- v. Burdick, 90 Pac. 532 (Cal.) ; Micelli v.' An-drus, 120 Bac. 737 (Ore.) ; People v. Economy Light and Power' Co, 89 N. E. 760 (Ill.).
    ■ Respondents cited: State v. Korrer, (Minn.) 148 N. W. 617, 621; State ex rel. Cates v. West Tenn. Land Co, 127 Tenn. 579, 158 S. W. 746, 32 Ann. Cas. 1043; Attorney General v. Woods, 108 Mass. 436; 1 Lewie, Eminent Domain, (3rd Ed.) pp. 113, 115; Shulte v. Warren, 218 Ill. 108, 75 N. E. 783, 13 L. R. A. (N. $.) 743; Runyard v. Ice Co, 142- Wis. 471, 125 N. W. 931; State v. Jones, (Iowa) 122 N. W. 241.
    (2) To point two> of the opinion, Respondent cited: Sapp v. Frazier, 51 La. Ann. 1718, 26 So. 378, 72 Am. St. Rep. 493; Stover v. Jack, 60 Pa. 339, 100 Am. Dec. 566.
    (3) To point three of the opinion, Appellants cited: Sec. 17, Enabling Act.
    Respondents cited: Civil Code, Sec. 289.
    (4) To point four of the opinion, Appellant cited: Olson v. Pluntamer, 6 S. D. 364; Hardin v. Jordan, 140 U. S. 371, II. Sup. Ct. 808; Sobeifert v. Briegel, 96 N. W. 44 (M'inn.) Sherwin v. Bitzer, 106 N. W. 1046 (Minn.) Calkins v. Plart, 118 N. Y. S. 1049; Foss v. Johnstone, no P’ac. 294 (Cal.) Rhodes v. Cissell, 101 S. W. 758 (Ark.) Conneaut Lake Ice Co. v. Quigley, 74 Atl. 648 (Pa.)
    Respondents cited: Illinois Cent. Ry. Co. v. Illinois, 146 U. S'. 387, 459, 36 L. Ed,. 1018; 8 Ency.' U. S. Slip, Crt. Rep, 821-83, 828, 830-1, 833-4, 839-40, and cases cited; Yol. 4, Ency. U. S. Supt. Crt. 'Repv rgy/ 160; and ca'ses cited; 'State v. Korrer, (Minn.) 148 N. W. 617, 621; Civ. Code, Secs. 191-2; Laws 1913, Oh. 18,'Sec.- i; Sec. 289, Civil -Code; V-ol. r, Farnum,-' Waters and Water Rights, Sec. 54; Sec. 1, Chap. 18o, Laws 1907; 40 Cyc. 630-7, and cases cited; Fuller v. Shedd, 161 Ill. 462, 44 N. E. 286, 33 L. R. A. 146, 52 Am. St. Rep'. 280.
    (5) To point five oí the opinion, Appellants cited: Cawlfield v. Smyth, (Ore.) 138 Pac. 227.
    Respondents cited: Civ. Code, Sec. 289; Security Land Co. v. Burns, 193 U. S. 167, 48 L. Ed. 662; Niles v. Cedar Point Club, 175 U. S. 300, 308, 44 L- Ed. 171; Horne v. Smith, 159 CJ. S. 40, 40 L. Ed. 68; Brown v. Cunningham, 82 Iowa, 512, 12 L. R. A. 583; Cox v. State, 3 Blackf. 193; 'Wright v. Day, 33 Wis. 260; Vol. 3, Ency„ U. S. Sup. Crt. Rep. 481; French v. 'Glenn Live Stock Co., 185 U. S. 47, 52, 46 L. Ed. 800.
    (6) To point, six of the opinion, Appellants cited: Boll v. Ostroot, 127 N. W. 577, 25 S. D. 513.; 30 Am. and Eng. Encv. of Law, 377 (2nd. Ed.)
   POLLEY, P. J,

Chapter 18,■ Laws of, 19x3, undertakes to empower the board of county commissioners, in counties where there may be meandered lakes;-to .construct artesian wells for the purpose of maintaining' a. sufficient quantity of water in such lakes to make them available for "rowing-, fishing, fowling, bathing, 01-other purposes”; and,, in .the spring, of 1913, the defendants, acting as the county auditor and board -of county .commissioners of Brule county, were about to cause the -construction, oí four artesian wells in that county for the purpose of filling and maintaining a sufficient stage of water .in what is-known as- Red Lake, to .make it available for the purposes-specified in -said- statute. •

. - -Red Lake is a meandered body of water with ah area of approximately 3,700 ■ acres, and plaintiffs are the owners of' land bordering thereon: "They-allege that; except■ during season of unusual rain or snowfall, the bed of said -lake is dry land, and that; because of their riparian ownership, they aré- the absolute owners in fee of all that part of said lake bed, from its edge -to- thd'-center of said lake bed, lying' opposite to-'-their lands. ' During many years in the past they have used considerable tracts of said lake bed as a place of making-hay and pasturing stock/ and they now’ seek, b.y injunction, tp prevent the filling of .-said lake b}r artificial means. . . . .

The 'depth of the water in said lake; and in fact whether ,it contains any water at all or not, depends -almost entirely upon the seasons. There are-several streams (one-of-which is known as Nelson’s creek- and is- 25 to 30 miles long) which- empty into the lake, but -there is no uniformity in the volume of-water they contain; and, during much, if not the greater -portion, of each year, they do not discharge any water at all into the lake. During -seasons of an unusual amount- of rain or following an unusual- fall of snow, the lake fills with water to a depth of-from- two to four, or more, feet over its entire bed; but, -during a succession of dry seasons, the water gradually dries up and. recedes from its shore line until it is in only a few of the lower portions of the lake bed that any water remains. There is some evidence tending to show—and the court found as a fact—that the lake has an outlet. This finding is assailed by the plaintiff on the ground that it is not supported by the evidence, and the evidence on this point is not very satisfactory. If the lake has an outlet, it is through an underground channel -that is by no means definitely located. But it is a significant fact that, no matter how great the volume of water that flow^s into the lake, it never rises above a certain level, and except at one place -designated by one of the witnesses, has never been known to rise above, or extend beyond, the meander line. The question of the outlet is not of much materiality, except that it negatives any assumption or probability that the water will, in the future, rise above or extend beyond the natural -high-water mark or submerge'any of the land -to which plaintiffs’ title is unqualified.

The size and depth of the lake and the purposes for which it has been used -during times of ordinary high water in the past show clearly that, if the water is maintained at ordinary high-water mark, it will be susceptible of all the uses named in said chapter 18, Laws of 1913. This places it in the class, designated in Flisrand v. Madson, 35 S. D. 467, 152 N. W. 796, as “naviga-bles lakes.” Such lakes are “public waters” -and belong to the state for the benefit of all the people. Such bodies of water are of value to the public as mere places of recreation, and ought to be preserved by the -state 'for such purposes, if for no other.

After a consideration of the record before us, we are of the opinion that much of what is said in the Flisrand case applies to the facts in this case. Plaintiffs are claiming' the land in, question as relicted land, and rely largely upon what is said in Olson v. Huntamer, 6 S. D. 364, 61 N. W. 479, in support of such claim; but that case is not analogous to this, and what is said in that case is not controlling in this. . That case was tried and determined upon the .theory that a reliction, in fact and in law, had occurred. It was a contest between two- individuals for a portion of a lake bed from which the water was assumed to. have permanently receded.

In this case no reliction is shown. During a series of dry seasons, the water gradually recedes from the shore line until the greater part of the entire lake bed becomes dry. This condition lias existed at different times within the past 35 years, but this is not a permanent condition. There has been no permanent diminution in the quantity of water that flows into the lake, and it is recognized by all parties that a rainy season or an unusually heavy lall of snow will fill it again. The testimony shows that, at the time of the trial, in July, 1913, practically the entire bed of the lake was dry, but it was conceded by counsel for plaintiffs, at the argument in this court, that it had since filled and was full of water at that time. This condition does not show a reliction. In the Flisrand case (speaking of what constitutes a reliction in law) this court said:

“Reliction is land added to a tract fronting upon the waters of a lake, pond, or stream, by the permanent uncovering of the land — the laying bare of the bottom by the, permanent retirement of the waters, never to return again. The temporary subsidence of the waters occasioned by thé seasons, or by periods of drought, does not constitute reliction in the sense of.an addition to the contiguous land. Reliction is said to rest in the law of nature, and is analogous to the right of the owner of a tree to its fruit. Reliction is a permanent change that takes place by gradual and imperceptible degrees. Where water periodically rises over land and then recedes, there is no reliction.”

In fact the term’ reliction, as it, is defined b.y courts and text-writers, implies an element of permanency of change in conditions that is not shown to exist, nor even suggested, by the facts in this case.

The trial court made the following conclusion of law:

“That the title to all the relicted lands within the meander line of said Red Lake distriot is in the state of South Dakota, subject to the disposal of proper legislation.”

Plaintiffs vigorously contend that this conclusion of law is erroneous. So far as the rights of plaintiffs are concerned, it is not prejudicial, but it is inaccurate and, to some extent, it is misleading. It implies that the state took -title by reliction. This is wrong: First, because, as we have already seen, ho reliction has ever taken place; and, second, the effect of a reliction, where a reliction has in fact taken place, is to divest the state of its title and to vest the same in the riparian owner. Olson v. H-untaaner, supra. Tested by the rule announced in the Flisrand case and the cases therein cited, the state is the owner of the bed of 'Red Lake subject, of course, to the limitation named in that case. Section 192, Civ. Code. In considering the question of ownership of the lake bed, in the Flisrand case, it is said:

“And when we say that the state is the owner of the bed of said lake we do not mean that the state is the proprietary owner in the sense that the state might -sell or otherwise dispose of same to private individuals for private ends, but that the state holds the title -to such lake bed in trust for the benefit of the public. Lamprey v. State, supra [52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541] ; People v. Kirk, 162 Ill. 138, 45 N. E. 830, 53 Am. St. Rep. 277; I. C. Ry. Co. v. Chicago, 173 Ill. 471, 50 N. E. 1104, S3 L. R. A. 408; Commissioners v. Fahrney, 250 Ill. 256-266, 95 N. E. 194; Fuller v. Shedd, 161 Ill. 462, 44 N. E. 286, 33 L. R. A. 146, 52 Am. St. Rep. 380.”

Again, the conclusion of law complained of' implies that the meander line is the boundary of plaintiffs’ land. This implication is erroneous and misleading, as it is the low-water line, and not the meander line, that limits the plaintiffs’ ownership. Section 289, Civ. Code. In the Flisrand case, the question of the -boundary line was disposed of in the following -language:

“Under this' view of the case the plaintiff had title‘.to the edge at low-water mark on said Take. ' Neither' high nor low- W-atef mark'means the highest or lowest -point reached:by 'the -Waters’'of a. lake during' periods of extreme and continued freshets, or periods of extreme and continued drought, but does mean tire high and' low points of variation of such waters under ordinary conditions, unaffected by either extreme. Farnham on Water Rights, p. 1461; Carpenter v. Board of Commissioners, 56 Minn. 513, 58 N. W. 295; Dow v. Electric Co., 69 N. H. 498, 45 Atl. 350, 76 Am. St. Rep. 189; Stover v. Jack, 60 Pa. 339, 100 Am. Dec. 566; McBurney v. Young, 67 Vt. 574, 32 Atl. 492, 29 L. R. A. 539. While the title of the riparian owner on navigable or public waters extends to ordinary low-water mark, still his title is not absolute, ..except to ordinary high-water mark, and as to the intervening .shore space between high and low water mark the title of the riparian owner is qualified or limited by and subject to the rights of the public. Sections. 192 and 289, Civil Code; Carpenter v. Board of Commissioners, supra; Stover v. Jack, supra. See note to Arnold v. Mundy, 10 Am. Dec. 388.”

The title of the riparian owner to the strip of land between high and low water mark being “qualified or limited by and subject to the rights of the public,” it becomes necessary to determine the extent to which the public may use or exercise control over said intervening strip, and whether the state may raise the water by artificial means and maintain it at a sufficient height to make it susceptible of the public uses named in said chapter 18, Daws of 1913. This, question was not involved in the Flisrand case, nor has it ever been presented to or decided by this court; but it has been the subject of frequent consideration by other courts, and it appears to have become a well-settled rule of law that, as to said intervening* strip, the state may not only use it for purposes connected with navigation, but may prevent it from being put to any use that would interfere with navigation. In Sisson v. Cumming*s, 35 Hun (N. Y.) 22, the court, in considering* this question, said:

“* * * The owner of land bordering- on waters where the tide ebbs and flows, or on inland navigable waters where the tide does- not ebb and flow, has a legal right to possess and occupy the land between high and low water mark, subject, however, to the right of the state to take the land for its own use, or to authorize it to be taken by a corporation for public use, and also subject to the right of the public to use it in aid of navigation. The adjoining owner may occupy to low-water mark for watering his stock, drawing water for irrigation or manufacturing; he may build 'wharves or occupy the land for any private purpose not inconsistent with the rights of the 'public.”

And, in Carpenter v. Board of Commissioners, 56 Minn. 513, 58 N. W. 295, the court, in -considering' the right of the public to appropriate the strip of land -between high and low water mark, said:

“While the title of a riparian owner on navigable or public waters extends to ordinary low-water mark, yet it is unquestionably -true that his title is not absolute, -except to ordinary high-water mark. As to the intervening space, the title of the riparian owner is qualified or limited by the public right. The state may not only use it for purposes connected with navigation without compensation, but may protect it from any use of it, even by the owner of the land, -that would interfere with navigation. It may be conceded, as claimed by respondent, that ‘within the banks, and below high-water mark, the public right is supreme, and that damages to riparian proprietors are damnum absque in-juria.”

And, upon the question “what is high-water mark,” the court further said:

“ 'High water/ as applied to the sea, of rivers where the tide ebbs and flows, has a definite meaning. It is- marked 'by -the periodical flow of the tide, excluding the advance of the water above the line, in the case of the sea, by winds and storms, and, in the case of the river, by floods and freshets. But, in the case of fresh-water rivers and lakes — in which -there is no- ebb and flow of the tide, but which are subject to irregu-lar and -occasional changes' of height, without fixed quantity or time, except that they are periodical, recurring with -the wet or dry seasons of the year —high-water mark, as a line between the riparian owner and the public, is to be determined by examining the bed -and banks, and ascertaining where the presence and action of the water are so common and usual, and -so long-continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects to nature of -the soil itself. ‘High-water mark’ means what its language imports — a water mark. It is co-ordinate with the limit of the bed of the water; and that, only, is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes! Ordinarily, the slope of the bank and the character of its soil are such that the water impresses a distinct character on the soil, as well as on the vegetation. In some places, however, where -the banks are low and flat, the water does not impress- on the soil any well-defined line of demarkation between the bed and the banks. In such cases, the effect of the water upon vegetation must be the principal test in determining the location of high-water mark, as a line between the riparian-pwner and the public.”

This latter case appears to be the leading case upon this subject, and has been followed or cited with approval in the following cases: State v. Kandiyohi County, 119 Minn. 132, 137 N. W. 298; Ephraim Creek Coal & Coke Co. v. Bragg et al. (W. Va.) 83 S. E. 190; State v. Nolegs et al., 40 Okla. 479, 139 Pac. 943; C. Beck Co. v. City of Milwaukee, 139 Wis. 340, 120 N. W. 293, 131 Am. St. Rep. 1061; Merrill et al. v. Board et al., 146 Iowa, 325, 125 N. W. 222; Stenberg v. Blue Earth County et al., 112 Minn. 117, 127 N. W. 496; Hobart v. Hall et al. (C. C.) 174 Fed. 433; Sun Dial Ranch v. May Land Co., 61 Or. 205, 119 Pac. 738; Hall et al. v. Hobart, 186 Fed. 426, 108 C. C. A. 348; State v. Korrer et al., 127 Minn. 60, 148 N: W. 617, 1095; Flisrand v. Madison, 35 S. D. 437, 152 N. W. 796.

Whether or not the character of the soil and vegetation along the shores of Red Rake is such as to indicate the high-water mark does not appear from the evidence in this case, but undoubtedly there are certain objects or indication's along said shore line from which such high-wa-ter mark can be ascertained. This is a question- that must be determined -by the facts at hand in each case. It might be that it could- be determined by the depth of the water in certain places, or it might be determined by -the natural -outlet ,if it has one, as was done in Merrill v. Board of Commissioners, supra.

This disposes of all the questions necessary to a determination of the whole case. It is our opinion, and we so hold, that, as to the strip of land below ordinary high-water mark, the title óf the appellants is subject to the supérior right of the public, that the state has the right to raise the water in the manner''provided by chapter 18, Laws of 19x3, and to maintain it at such ordinary high-water mark, by either natural or artificial means', and that such damage, if any, as may result to. -the appellants as riparian •owners, is. a damage for which -they are not entitled tO' recover.

The judgment and order appealed from are affirmed.  