The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1888-07-01
LAKE SUPERIOR LAND co. VS..
EMERSON ET AL.

!. Riparian Rights - Nayigable waters
Soil below Low Water Mark.
As the title to the soil Under the water be-
low the lowwater mark in our nayigahle
lakes is in the state, the deed of the own
or OF the abutting shore. purporting only
to convey the soil under the water below
tae iow-w ater mark, is Imperative.
2. Same-Seyeraace from Auditing Shore.
Riparian rights belong and are incident TO
the a5ufting shore, and cannot be sew
cred and transferred apart from the shore,
so as to be rights i'm gross.
Z. same-Suiefing Tile.
A grantee of the abctring shore may main
ta.a an action against the grantee from
tne same granfori In prior deed, pur
porting To convey the soil under the
water. 10 remove the cloud upon his ri
pariau rights created by such deed.
iSyl,ahus By the Coart.l
Appeal from district court, ST Louis
County: Start. Judge.
Phelps & smith, for Thomas T.. Emerson
Il al, appellants White. Shannon & Rey-
n6lds, for Lake saperios Land Company,
Respondent.
GiidiIan, c. J. In 1855. the owner Of
what is known ~ '.Rices Point point
of land extending into that part of lake
superior now called trc bay of Duluth"
plated the same as town aud recorded
the plat. On the plat there were delineat-
ed certain blocks, numbered O., %, -. and
have since been duly vacated, 50 that they
now lie in one solid parcel OF land. which
is bounded on the east by the waters of the
bay. At Inc time of tle plating, said par
eel rs plated extended 10 aud beyond the
losy-water mark. and the hay front of The
parcel was then, ever since has leea,
aud now il under water. Taere were also
deiineatei, GU sad plat. in the water be
You'd the low-Nite marx, and where the
person then plating bad no title To the
land. Among the blocks so aelineaiesi in
the water. AID below the Iow-fa;er mark,
was one numbered IL. he said owner
thereapon conveyed blocks "a, -. 81. and
gj. and plaintiff now has the title so con
geyeG. ON the same Gay. said owner cx-
ecutod to one Wilson n deed pur-
porting to convey 10 him block III, and
Wilson subsequently executed to defend
ant a deed purportiny To convey said block
10 him. Plaintiffs In the actual Posses
sion OF the blocks 60 conveyed TO IL.
The chief question III the case is what
did the plaintiffs aud the defendants
gran,ors respectively get by the deeds from
the said ownerg That ewner owned the
land only 10 low water mark. The title 10
the soil beyond that, and under the water.
was In the state. The only rights he could
have beyond the low-wa,er mark were Ger
tain riparian rights incident to land bor-
dering upon nayigable stream or lake.
Among these were the right to enjoy free
premises and the nayigahie waters of the
lake, to build and maintain suitable land
ings. piers and wharyes on and in trout of
his land, aud TO extend the same thercfroni
into the lake to the point of navigaSiiffs,
even beyond low water mark: and this ex-
tent exclusively 10 oecupy for such and
Ike purposes to the bed Of the lake, sub
ordinate 10 the public paramount right of
navigation. B-ixpine Y. Railroad Co, -
Miiin-, III; DEPOT Co. Y. Brunswick. 81
MINI, 80. Il y W. Rep. s-s These rights
all pertain 70 the Use OF AUDITING ianfi In
connection With ths water. or Of the water
Ia connection with the land, The right to
Csc beyond losy-water mark rests upon the
title 20 the bank, aad not 10 the bed Of the
wate-. Diejriek V. Railway Co, a Wis
IN i, j. a risGt peculiar to the owner Of
the land bordering ON the lake ar stream,
sad not possessed by Others Morrill, v
Water Power Co, - Mimi. ~, NV
Rep. So, and cases cited. The owner of
the abuftiDs; land has the right 70 enjoy,
Tor the purposes of gain or pleasure,
all the facilities which the locafion Of his
land with reference Ia the lake affords
IiesGp!asHs Z. Ea.ipTy 60. q Wis. ia. Ii
exists F-Te assards, because the land has.
by nature the advantage Of being ashed
by the stream Lyon e. ffshEoaGsr's Co.
App. Cos. sss. The right is incident to
the land, belongs 10 II by nature We have
not found any case holding that it mas be
severed from the right 10 the abuifing
land. so As II become a right in gross; one
person owning exclusively the shore and
another the riparian right incident 10 H.
though owning no shore. As the owner O!
the saore has no title - the soil under the
water. he tan convey EGfhiar In the soil,
and Is he cannot convey the riparian righ;
severed FROM the shore, his Deed of con-
ycyaacc Of the SOIL under the water must
be imperative. Undoubtedly, he may re-
least has riparian right 10 the owner Of the
soll under the wzscT.-tbe state, or It's
grantee or heensee- Perhaps he may
transfer the right TO the owner Of shore
land. in connection with which il can be
used and enjoyed. though not directly
abuitiHg; hai that IS nos this case Ripar-
ian rights incident or appurtenanf Ia no
land cannot exist. No interest passed by
the deed under which defendant claims !
The grantee in that deed. and his grantees
must be presumed to have known the /
situation and character OF wba. the deed |
pnslso.fs to coaves. 20 that no e.fopTel
eouiss ari-e by reason II IL.
An action 10 remove the cicud on plain /
III title created by the deed can s,e main /!
tanned The deed Is valid on lis face. The /.
manner IN which block L. il deliBeated /
On the plat IL probably nosfce to parties MS
sGsning 10 purchase that block thsf /; lay .
eelos the low vater mark lf saeh were
tins fact But IL was not conclusive Of 4
hat .<st notwithstanding wha. appeared +
eT the plat b. be the situation Of the block
WITH respect 20 the water, IL might still he
shawn ~ such we-e the fact, thai the
aaosk Gle Rot he under water. The art
making Riec's point, as plated. pa-s cf
iht civ OF yaiuth. conneE t-e construed -
: transfer sr surrender BY the state OF Iis
i'ss 10 The SOL below los water marx
Judgment Alarmed
Mitchell, J.. Was absent, and task No
All IA sae decision.