Vernon and Arlene West are the record title owners of Government Lot 3, Section 2 Township 47 North, Range 4 W.B.M., Kootenai County, Idaho, which lot abuts the westerly shore of Lake Coeur d'Alene, a navigable lake. Guy and Patricia Dumais contracted to purchase lot 3 and another lot from the Wests in May, 1970. The Dumaises plan to develop, subdivide, and sell the lots. Until 1935, a privately operated, commercial ferryboat ran between Harrison, Idaho, and Spokane Point, a designation which is located on the shoreline
Since approximately 1945, a houseboat has been moored to pilings driven into the lake bed at the point where the ferryboat docked. Mr. and Mrs. James E. Smith purchased the houseboat in 1965 and have since paid personal property taxes on it and occupied it intermittently. The houseboat is connected to the shore by a catwalk two feet in width which terminates on the turnaround of the public roadway. Plaintiffs' exhibit 1, a scale drawing of the shore and the houseboat, also indicates that there is a somewhat larger floating dock structure owned by respondents interposed between the houseboat and the catwalk.
At a date not disclosed by the record, but apparently after 1890, the predecessor of the Washington Power Company raised the level of Lake Coeur d'Alene several feet by constructing a dam at Post Falls, Idaho. The record does not indicate the elevation or location of the natural high water mark of the lake before the dam was built. According to the record the Washington Power Company has generally maintained the level of the lake at approximately 2,128 feet above sea level since 1910. According to plaintiffs' exhibit 1, when the water is at the average of 2,128 feet, the edge of the water is 13 feet from the edge of the maintained portion of the turnaround. The artificial post-1910 high water mark is shown to be 7 feet further inland and thus approximately 6 feet from the edge of the maintained portion of the turnaround. The slope of the bank from the traveled edge of the turnaround to the water's edge is fairly steep. The plaintiffs' plat indicates that the side of the houseboat closest to shore is approximately 53 feet from the edge of the water at the 2,128 foot level.
The Wests and the Dumaises brought suit to compel the Smiths to move the houseboat and its appurtenances or in the alternative, to pay $10,000 damages. They allege that the maintenance of the houseboat and its appurtenances constituted an undue interference with their littoral rights. Appellant Dumais testified that the houseboat in its present position hindered his development plans. The Smiths cross-complained for an injunction to prevent the appellants from interfering with their peaceful use of the houseboat in its present location.
The parties stipulated that Mr. Madison, who owned lot 3 when the houseboat was first moored there, was aware of its existence, that the houseboat did not interfere with any use he was making of the property, and that, during his ownership, he never requested that it be removed. They further stipulated that Mr. Madison and his wife conveyed the property to the Lafferty Transportation Company, a corporation, (name later changed to L.T. Land Company) in March, 1959, and that during the corporation's ownership of the property, the then occupiers of the houseboat would notify the corporation when logs which the company was storing in the bay got loose. They further stipulated that Vernon and Arlene West acquired lot 3 in September, 1968, and that the houseboat did not interfere with any use they were making of the property until they contracted to sell it to the Dumaises.
The following findings and conclusions of the district court are undisputed. The houseboat and the pilings to which it is moored are located below the natural high water mark of the lake on lands belonging to the State of Idaho. (This finding appears based on evidence not in the record before us.) Appellants' littoral rights include the right of access to the lake without unreasonable interference from other persons entitled to use the navigable waters of the lake. The county road easement does not sever appellants' land or cut off their right of access to the lake along that portion
However, the appellants contend that the district court erred in making these further findings and conclusions: The terminus of the county road (the turnaround) is at the water's edge. The houseboat does not unreasonably interfere with the appellants' right of access to the lake. The only point where the appellants are hampered in obtaining access to the lake is at the point where the walkway from the houseboat comes to land on the public roadway. The respondents are making use of a public way as a means of ingress and egress to the navigable waters of the lake. Because the houseboat has been maintained in its present location for over 20 years, and was there when the Dumaises contracted to purchase the property, the appellants are estopped, and barred by the statute of limitations, from demanding removal of the houseboat.
From the decree of the district court denying them both injunctive relief and damages, the Wests and Dumaises have appealed. The appellants assign error to findings and conclusions of the district court other than those enumerated above, but an examination of those alleged errors is not necessary for a resolution of this case.
One of the salient features of the shores of navigable lakes is the convergence of the rights and interests of the state, the public and the littoral landowner. The State of Idaho holds title to the beds of all navigable bodies of water below the natural high water mark for the use and benefit of the whole people.
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,
The decision of the district court is implicitly based on two alternate grounds.
Subject to regulation by the state, the public is entitled to use the waters of Lake Coeur d'Alene for navigational and recreational purposes.
The littoral owner's right of access to the lake, free from unreasonable interference, attaches to all points of his shoreline,
We turn now to an examination of the question of whether the Smiths have acquired a private prescriptive right to maintain their houseboat and catwalk as presently located. It is important to note here that any prescriptive right which the Smiths may have acquired pertains only to their position in relation to the owners of lot 3. A private person cannot obtain a prescriptive right against the state with respect to navigable waters,
Therefore, we must examine the question of whether the Smiths have acquired a prescriptive right to maintain the houseboat in its present location, keeping in mind that our decision can have no effect on the rights of the state or the county with regard to the location of the houseboat. We feel that the general rules relating to the acquisition of private prescriptive easements may properly be applied to this case.
At this point, it is necessary to note the differences between easements appurtenant and easements in gross.
The Smiths' ownership of the houseboat cannot be equated with ownership of an estate in land. Therefore, any prescriptive right which the Smiths may have acquired to maintain their houseboat permanently moored and connected to the land would be in the nature of an easement in gross, or purely personal right, rather than a right appurtenant to the ownership of the houseboat. This fact is important because, under the general rule, supra, easements in gross are not assignable. Furthermore, a right gained by prescription is confined to the right as exercised during the prescriptive
In order for a claimant to establish that he has acquired a private prescriptive easement by adverse use, he must submit "reasonably clear and convincing"
Although language in one Idaho case,
The general rule is that proof of open, notorious, continuous, uninterrupted use of the claimed right for the prescriptive period, without evidence as to how the use began, raises the presumption that the use was adverse and under a claim of right.
There is substantial evidence that during the Smiths' ownership of the houseboat, it was moored in its present position
Thus, respondent has prescribed part of appellants' littoral rights. Therefore, insofar as the judgment of the district court held that the appellants are barred from demanding the removal of the houseboat and catwalk, the judgment is affirmed. As mentioned, supra, this decision can have no effect on the rights of the state and the county with regard to the location of the houseboat.
Judgment affirmed. Costs to respondents.
DONALDSON, C.J., and SHEPARD, McFADDEN and BAKES, JJ., concur.
Thus the appellants' contention that the county road right-of-way is limited to the flat, traveled, portion of the turnaround is without merit.
When the lands over which the prescriptive easement is claimed are wild, unenclosed, or unimproved, the presumption of adversity does not apply. In such a case, it is presumed that the use by the claimant was permissive. Trunnell v. Ward, supra note 21; Cox v. Cox, supra note 21; 28 C.J.S. Easements § 68 p. 737 (1941). Appellants have suggested that lot 3 is wild land and urges the application of the presumption of permissive use to this case. From the record, it is apparent that lot 3 is not "wild land" in the sense contemplated by the exception to the general rule. Therefore, the appellants are not entitled to the benefit of the presumption of permissive use.