Water Laws

May a riparian property owner construct a dock that extends from his property over an underwater lot partially owned by a neighboring riparian property owner?

Xu v. Sterling, No. A18-1741, 27-CV-17-7742, 2019 WL 3293469 (Minn. Ct. App. 2019) (unpublished)

Appellants alleged trespass and sought damages and a permanent injunction from respondent, who built a dock on respondent’s property that extended out over an underwater lot partially owned by appellants. Respondent denied that the dock trespassed onto appellants’ property, denied appellants’ allegation that his property does not abut the shoreline of Gleason Lake, and pleaded an affirmative defense of riparian rights, claiming that his property extended to the original shoreline of Gleason Lake.

The court of appeals affirmed the district court’s judgment that the wetlands of Gleason Lake extended onto respondent’s property. Therefore, both appellants and respondent were riparian owners. The Court of Appeals noted that it was not entirely clear whether the assertion of riparian rights is an affirmative defense to a trespass claim. However, the district court’s finding that the found the respondent was a riparian owner. This means that respondent had the right to build a dock that began on his property and extended into the lake water because a riparian owner possesses rights to use and enjoy the water that abuts his real property. Respondent’s status as a riparian owner negates the “unlawful entry” element of tortious trespass. The court of appeals affirmed the district court’s decision.

Does an easement to cross riparian property “for all lakeshore purposes” encompass the right to maintain a dock?

Schoeller v. Walker, A04-1828 (Minn. Ct. App. 2005) (unpublished)

The Walkers hold an easement to cross the Schoellers’ riparian property “for all lakeshore purposes and access to White Bear Lake.” The Court of Appeals found that this phrase unambiguously confers to the Walkers the right to maintain a dock, subject to applicable rules and regulations. The Court affirmed the district court holding that neither the Walkers nor the Schoellers have a superior docking rights, but rather that each must avoid unreasonable obstruction of the others’ use of the shoreline for docking and other lakeshore purposes.

Is “reasonable use” exceeded by a structure that ponds water on neighboring property where other means exist to address a landowner’s flooding problem?

Gillette v. Peterson, A03-997 (Minn. Ct. App. 2004) (unpublished)

The Minnesota Court of Appeals found that a landowner exceeded his right to “reasonable use” when he installed creek crossings without evaluating their impact, the crossings backed water up on the property of his upstream neighbor and caused the water to stagnate, and other methods such as ponding existed to mitigate flooding of his property. The Court also found that although the creek was not designated by the Department of Natural Resources as a public water until further downstream, a DNR permit was required for the road crossings because the crossings had the effect of changing or diminishing the course or current of the downstream water within the meaning of Minnesota Statutes §103G.245, subdivision 1(2).

How does "public waters wetland" designation affect a property owner's rights to exclude others?

Bronczyk v. State of Minnesota, 1996 WL 706852 (Minn. Ct. App. 1996)

The Department of Natural Resources (DNR) designated Columbus Lake as a protected public waters wetland in 1982. In determining the boundary of a public waters wetland under Minn.Stat. 103G.005, subd. 14 (Supp. 1995), the DNR made preliminary findings setting the "ordinary high water level" of Columbus Lake at the boundary of the lake, adjacent to Anoka County Road 23. Plaintiffs, who own land covered by Columbus Lake, sued the DNR, fearing that such an intersection would give the public legal access to their property.

The plaintiffs asked for a declaration, in the alternative, that: The ordinary high water level not be designated as the boundary of the Columbus Lake public waters wetland; They be allowed to exclude all members of the public from wetland types 1, 2, 6, and 7; and If the court does not find (1) or (2) above, then a taking has occurred because of the plaintiff's loss of their right to exclude the public. The court held that, under Minn.Stat. 103G.205, subd. 14 (Supp. 1995), public waters designation did not affect the existing rights of access. Public waters designation neither grants additional rights of access to the general public nor does it diminish other property owners' existing riparian rights of access. As a result, such designation does not diminish the rights which owners have to exclude others.

Because the court found the plaintiffs' right to exclude unaffected by either the public waters wetlands designation or the exact boundaries of the lake, the court refused to address the issue of a taking. The court also stated that the exact boundary of the wetland is a regulatory issue, and that the plaintiffs had not exhausted all their administrative remedies, as required prior to judicial action.

Who owns riparian land created by deposit of dredge spoils?

Reads Landing Campers Association, Inc. v. Township of Pepin, 546 N.W.2d 10 (Minn. 1996)

Over a period of twenty years, the U.S. Corps of Engineers conducted dredging operations on the Mississippi River near Pepin in order to improve navigation. The spoils of these dredges, over 1 million cubic yards, were deposited in front of private property owned by the Soo Line Railroad. The beach area thus created was rented by Soo Line to a series of tenants, the last of which sought a declaratory judgment as to the ownership of the dredge-created beach.

The Railroad and its lessee, Reads Landing Campers, argued that the land was created through "accretion," a process of small and imperceptible change which in Minnesota results in the property belonging to the riparian owner. Lamprey v. Metcalf, 53 N.W. 1139, 1143 (1893); see also Philadelphia Co. v. Stimson, 223 U.S. 605, 624 (1912). The court refused to characterize the dredge spoils as accretion because normally these changes are so slow as to be imperceptible while they are taking place. Clearly, the court said, these dredging operations were perceptible.

The Township of Pepin and the State of Minnesota argued that the beach's creation was more properly characterized as "avulsion," a sudden and abrupt loss or addition to the land, which does not change the underlying ownership interest. State v. Longyear Holding Company, 29 N.W.2d 657 (1947). Under this theory, the state would retain ownership, as the state had controlled the land when it was part of the streambed. The court likewise rejected avulsion, pointing out that the beach was created over a period of twenty years.

The court instead characterized the land as "gradually and periodically" created, and awarded the rights to such newly created land to the riparian landowner. The court relied on Minnesota's traditional support of a riparian owner's access to the water as the foundation of its decision for this new "class" of created land. The court further justified its holding by expressing its reluctance to deprive a landowner of access to the water due to the unsolicited actions of a third party which the landowner is powerless to stop, especially when such access is the principle source of the property's value.

What are the boundaries of federal easements acquired over "any water" under the Migratory Bird Conservation Act?

U.S. v. Johansen, 93 F.3d 459 (8th Cir. 1996)

In the early 1960's, the federal government purchased easements on the North Dakota farms of the Johansens for the purpose of maintaining waterfowl preservation areas under the Migratory Bird Conservation Act (codified as 16 U.S.C. 715 et seq. (1994)). The easements required that the owners not drain "any water, including lakes, ponds, marshes, swales, swamps, or potholes, now existing or reoccurring due to natural causes . . . by ditching or any other means[.]" The state of North Dakota consented to the acquisition of similar easements covering 1.5 million acres of farmland.

After two particularly wet years, the Johansens requested that the Fish and Wildlife Service (FWS) delineate the extent of its wetland easements. The FWS refused to delineate the boundary of its easement, arguing that any and all wetlands, including those developing during wet years, are subject to the easements. The Johansens proceeded to drain portions of their flooded farmlands in spite of the FWS position, and the U.S. Attorney charged them with draining a wetland in a Waterfowl Protection Area, a violation of 16 U.S.C. § 668dd(1994). The Johansens entered a conditional guilty plea and appealed.

Looking to the foundations of the wetland acquisitions program as it was conceived, the 8th Circuit Court of Appeals found that the program was designed to operate as a partnership between the federal government, the states, and individual farmers. The court interpreted the government's refusal to delineate the extent of its easements, combined with its subsequent prosecution of the farmers attempting to drain the surplus water, as evidence of the government's failure to act in the spirit of a partnership.

The court rejected the Fish and Wildlife Service's position that the easements were essentially boundary-less, holding that federal wetlands easements are limited to the acreage provided in the Easement Summaries. This meant that the land which the Johansen's drained was not in a Waterfowl Protection Area. As a result, the court found for the Johansens, overturning their lower court conviction.