October 22, 1976
Mr. Raymond R. DeGeest
State's Attorney
Charles Mix County Courthouse
Lake Andes, South Dakota 57356
OFFICIAL OPINION NO. 76-99
Authority of riparian landowners over land underlying navigable lakes when the lake is temporarily dry
Dear Mr. DeGeest:
You have requested an opinion from this office in regard to the following question:
QUESTION:
Does a riparian landowner have the legal right to prohibit hunting in the area located between the meander line and the high water line at the perimeter of Andes Lake at a time when such area consists of a dry lake bed, even though that particular riparian landowner pays real property taxes on the property between the aforementioned lines?
As I interpret your question, it focuses on the issue of what public rights remain in a navigable lake bed when the lake bed is temporarily dry. With respect to the matter of the meander line which you raise, the South Dakota Supreme Court has recognized that a meander line is not a boundary line and that the owner of land adjoining such meander line takes title to the high water mark of the stream or body of water, if navigable, lying adjacent thereto. Karterud v. Karterud, 195 N.W. 972. In the case of Olson v. Huntamer, 61 N.W. 479, our Supreme Court also quoted with approval from the case of Harden v. Jordon, 35 L.Ed. 429, as follows, on this point:
It has been the practice of the government from its origin, disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines.
With respect to the literal question you ask concerning the area between the meander line and the high water line, I believe the answer to your question is YES; the riparian landowner does have the right to exclude hunters from entering on that land. As I understood your question, however, the problem is not with the meander line but is in relation to the area of land which is below the normal high water mark in the lake bed of Lake Andes, which is now temporarily dry.
With respect to navigable lakes such as Lake Andes, the law of South Dakota is that the State holds title to the bed of the lake outwardly to the ordinary low water mark, and has a qualified ownership from thereon to the ordinary high water mark. Conversely, the riparian landowner owns the land down to the ordinary high water mark, absolutely, and has a qualified ownership from there inwardly to the ordinary low water mark, subject to the rights of the State as defined in Anderson v. Ray, 156 N.W. 591, and subject to the rights of the public to ingress to and egress from the lake. Clark v. Deisch, 162 N.W. 365 (1917). In Anderson, the South Dakota Supreme Court cited the case of Carpenter v. Board of County Commissioners, saying:
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 injuria."
In the case of Hillebrand v. Knapp, 274 N.W. 821 (1937), the South Dakota Supreme Court clearly held that with respect to land below the ordinary low water mark of a navigable lake, if the riparian right of ownership has not been extended by either acretion or reliction, such riparian landowners have no vested or prior rights to such land. Thus, it seems clear that with respect to the portion of the Lake Andes lake bed, below the ordinary low water mark, riparian landowners, as such, have no vested or prior right to that portion of the lake bed which would justify their excluding people from hunting on that land. It is my understanding of the facts in this situation that the subsidence of the waters in Lake Andes is temporary only, and does not constitute a permanent reliction in the sense of an addition to the contiguous land. Temporary non-navigability does not divest the State of title to the lake bed of a navigable lake below the normal low water mark and does not result in gradual and imperceptible increments to the lands of riparian landowners to constitute an addition by reliction to the contiguous land. Anderson v. Ray.
With respect to the question of how high water mark areas are distinguished, I refer you to the South Dakota Supreme Court decision of Anderson v. Ray, cited above, wherein the South Dakota Supreme Court addresses this matter specifically:
. . . 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 irregular 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 the 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 demarcation 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 owner and the public.
In Flisrand v. Madison, 152 N.W. 796, 800 (1915), our Supreme Court also stated in regard to this issue:
Neither high nor low water mark means the highest or lowest point reached by the waters of a lake during periods of extreme and continued drought, but does mean the high and low points of variation of such waters under ordinary conditions unaffected by either extreme.
In regard to the area of land between the low water mark and the high water mark, I believe the law recognizes that the riparian landowner has an interest in such lands which, in the fact situation you present, would authorize such landowner to restrict hunting on such land. I base this opinion on the recognition of the South Dakota Supreme Court in Hilleband v. Knapp, that riparian landowners upon navigable waters have certain rights in such navigable waters which are not dependent on the ownership of the soil under the waters, but which are based upon his title to the banks. In the case of Doemel v. Jantz, 193 N.W. 393 (1923), the Wisconsin State Supreme Court discussed in greater detail this general principle of law which the South Dakota Supreme Court recognized in Hillebrand v. Knapp. The argument there asserted, which supports the riparian landowner's right in this area, is that so long as there is water in the lake bed, between the low water mark and high water mark, the public waters may be used by the public for navigation and for certain recreational functions which are incident to the primary function of navigation. Navigation, however, is the foundation of the public use and this fundamental should not be lost sight of.
When the waters temporarily receed in a navigable lake between normal high and normal low water marks, the "navigability" of the lake is obviously affected. The State may protect the area from any use which would interfere with navigation, Anderson v. Ray, but the State does not, in my view, have a claim to the temporary dried up lake bed area between normal high and low water marks which is sufficient to preclude the riparian landowner from excluding hunting on that strip of land. Without actual "navigation" being presently possible in the area, the State's right to the intervening dry strip of land, between low water mark and high water mark, does not ripen so as to enable it to assert a public hunting right against the riparian owner's right to exclude hunting on that strip of land. The State's right to the land between low and high water mark of a navigable body of water rests on "navigation." I do not believe "navigation" is possible where there is no water present.
In summary, it is my opinion that the riparian landowner can exclude hunters from the portion of the dried up Lake Andes lake bed between the normal high water mark and the normal low water mark. With respect to the dried up lake bed between the center of the lake and the normal low water mark, it is my opinion that the riparian landowner has acquired no vested interest, right or title to such land which would allow him to exclude people from hunting on such property.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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