STATE EX REL. HAMAN v. FOX

McFADDEN, Justice.

This is an action brought by the Prosecuting Attorney of Kootenai County on behalf of the people of the state of Idaho to establish public rights in and to privately owned water front property on Lake Coeur d'Alene. The district court determined that the public had no right or interest in the property and gave judgment to the property owners. We affirm.

THE FACTS

Defendants-respondents C.R.W. Fox and Eileen Fox, husband and wife, and Burgess K. McDonald, personal representative of the estate of Carmelita K. McDonald, deceased, own adjoining residential properties in the City of Coeur d'Alene. The properties consist of two residential lots in the Lake Shore Addition Plat together with two water front parcels abutting the waters of Lake Coeur d'Alene. The water front property is separated from the platted lots by Lake Shore Drive, a dedicated public street. Respondents' homes and yards are in the platted lots to the north of Lake Shore Drive. The water front lots to the south of Lake Shore Drive are for the most part sandy beach. The beach lots are adjoined on both sides by other privately owned lots, which together comprise what is commonly known as Sander's Beach. The beach has no public access other than from the lake itself. But the public does have access to the lake via a deeded right-of-way to the west of respondents' property and via a ten-foot wide pathway to the east of respondents' property.

Respondents' beach property extends south from Lake Shore Drive to the ordinary mean high water mark of Lake Coeur d'Alene. Their adjoining lots have a combined lake frontage of 250 feet and a depth of from 60 to 75 feet. The property is subject to the seasonal fluctuations of high water in the spring and low water in the late summer and fall. The property is also subject to the washings and erosive forces of the lake.

For many years, at least since the 1920's, respondents and their predecessors have maintained seawalls to protect a portion of their property immediately south of Lake Shore Drive from the erosive forces of the lake. In 1971 respondents obtained the necessary building permits from the City of Coeur d'Alene and constructed a new concrete seawall. The new wall is a three-sided structure extending approximately 20 feet closer to the lake than the earlier walls and running the entire 250 feet across respondents' property. The wall does not interfere with swimming or boating on the lake, nor does it extend to the ordinary high water mark of the lake. The wall has, however, eliminated the public use of the enclosed area for sunbathing, picnicking and other related activities. It is this 20 feet by 250 feet enclosed area which is in dispute here.

This action was brought to force respondents to remove the seawall and to permanently enjoin them from further interfering with the alleged right of the public to use the enclosed areas. The complaint alleged that for over thirty years the general public had enjoyed complete freedom to use the beach for recreational purposes. It was alleged that by virtue of such public use respondents had impliedly dedicated the property to the general public or in the alternative that the public had acquired an easement thereon by prescription or by custom. It was also alleged that the wall interfered with the public trust in which the waters of the lake are held. After a trial to the court sitting without a jury, the people of the state of Idaho were adjudged to have no right or interest whatever to the property. The requested injunctive relief was denied, and judgment was entered in favor of respondents. This appeal followed.

STANDING

No governmental agency is in any way affiliated with this litigation and no rights of the State in its capacity as sovereign are concerned here. Nor does the City of Coeur d'Alene or Kootenai County claim any interest to this property. The action is brought by the Prosecuting Attorney for Kootenai County, but is brought solely on behalf of the people at large, i.e., the general public of the state.

A previous action relating to this property has been brought by the State of Idaho through the State Land Board and the Attorney General's office. The State there alleged that the seawall constituted a trespass upon the bed of the lake, but this claim was dismissed upon the stipulation that the wall in fact was situated entirely upon respondents' private property. The State also alleged the existence of public rights in and to the property by an implied dedication and/or an easement by prescription. But these claims were also dismissed upon the district court's determination that the attorney general was not the proper party plaintiff to assert such public rights. No appeal was taken by the State of Idaho from the dismissal of that action. In the present case, respondents likewise challenge the standing of the prosecuting attorney to bring the action on behalf of the people of the State of Idaho.

I.C. § 31-2604(1) provides that it is the duty of the prosecuting attorney:

In contrast, I.C. § 67-1401(1) provides that it is the duty of the attorney general

The difference between these two statutes insofar as this case is concerned centers around the attorney general's duty to represent the state in its sovereign capacity, while the prosecuting attorney has the additional duty to represent "the people" separately from the political entity of the state or the county. This difference is not a mere accident. The first statute enumerating the duties of the attorney general included prosecution of "all actions to which the people of the Territory of Idaho are a party." 1885, Thirteenth Session, Idaho Territory, p. 31. However, in 1887 this statute was amended to eliminate representation of the people of the state separately from the state in its sovereign status. The statute has remained unchanged in this regard to this day.

We are of the opinion that the legislative grant of authority to the prosecuting attorney to prosecute actions in which "the people are interested" amounts to a statutory grant of standing in the instant case. The statute empowers the prosecuting attorney to call upon the courts of this state for vindication of public rights which for all practical purposes would otherwise go unprotected. The rights contended for here are of this nature. This court therefore holds that this action is properly brought under I.C. § 31-2604(1) by the prosecuting attorney.

THE MERITS

A. Easement by Prescription.

Appellant claims a right on behalf of the general public of this state to use private property for recreational purposes. In order to establish such a right by prescription, a party must submit "reasonably clear and convincing proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period." West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973) (footnotes omitted). The prescriptive right cannot arise, however, if the use of the land is with the permission of the owner. West v. Smith, supra; Trunnell v. Ward, 86 Idaho 555, 389 P.2d 221 (1964); Cox v. Cox, 84 Idaho 513, 373 P.2d 929 (1962); Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961).

After hearing the testimony of some seventeen witnesses on the use of respondents' property, the trial court found "that the use herein by the public was open, notorious, continuous, and uninterrupted and with the knowledge of the defendants [respondents] for more than the prescriptive period." The court further found, however, that the public use was in fact "a permissive use" and that "the evidence herein does not establish an adverse or hostile use by the plaintiff [appellant] against the interest of the defendants [respondents] nor any act on the part of any member of the public that would give notice to the defendants [respondents] that the public was claiming an interest adverse to them." The court therefore concluded that no public rights had been established by prescription.

These findings, if supported by substantial and competent evidence in the record, will not be disturbed on appeal. I.R.C.P. 52(a); Skelton v. Spencer, 98 Idaho 417, 565 P.2d 1374 (1977); Idaho Water Resource Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976). We have carefully reviewed the record and conclude that there is substantial and competent evidence to support these findings.1 Even so, the court's finding that the use was by permission of respondents can only be sustained from that point in time in which respondents held title to the property. Respondents Fox acquired their property in 1948. Carmelita McDonald, now deceased, acquired hers in 1924. Appellant contends that the prescriptive rights to use the beach were acquired prior to 1948 and 1924, and that respondents took their fee interests subject to the already established public rights. We find it unnecessary to answer this contention. For the reasons stated below, this court is of the opinion that the "general public" or "the people of the state of Idaho" as distinguished from specific individuals cannot, absent specific statutory authorization, acquire prescriptive rights to private property.

As a starting point, it is important that the underlying legal rationale of a prescriptive right be discussed. Many courts have relied upon the fiction of the "lost-grant," i.e. it was presumed, from long possession under claim of right and with acquiescence of the owner, that there must have originally been a grant, from the owner to the claimant, which had become lost during the course of time. 2 G. Thompson, Thompson on Real Property, § 337, 171-80 (1961); 3 R. Powell, The Law of Real Property, § 413 (1977); 25 Am.Jur.2d, Easements, § 39, 452-53. Under the lost grant rationale, courts have held that the general public, considered apart from legally organized or political entities, could not acquire prescriptive rights because they could not receive a grant. Rosemann v. Adams, 398 S.W.2d 855 (Mo. 1966); Morgan v. McLoughlin, 5 N.Y.2d 1041, 185 N.Y.S.2d 801, 158 N.E.2d 498 (1959); Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760, 200 N.E.2d 282 (1964); Bioletti v. Sindoni, 135 N.J. Eq. 609, 39 A.2d 634 (1944). In Ivons-Nispel, Inc. v. Lowe, supra, in a case almost identical to the case at bar, the Supreme Judicial Court of Massachusetts stated that "We are of opinion that `persons of the local community' and the `general public' are too broad a group to acquire by prescription an easement to use private beaches for bathing and for recreational purposes. (citations omitted.)" 200 N.E.2d at 283.

Although Idaho long ago abandoned the fiction of the lost grant, we reach the same result as the Massachusetts court in holding that the general public cannot acquire prescriptive rights in private property. In Last Chance Ditch Co. v. Sawyer, an action brought by the property owner to enjoin 89 persons from permitting waste water to flow into the canal, 35 Idaho 61, 66-67, 204 P. 654, 655 (1922), the court stated

The statute of limitations discussed in Last Chance Ditch Co., supra, upon which prescriptive rights in Idaho are based, is I.C. § 5-203. This statute in effect gives an owner five years to take the necessary and appropriate legal action to have an unauthorized use of his property stopped. If the owner of the property fails to eject the trespasser or enjoin the unauthorized use, after five years his right to do so will be barred. But as against whom would the owner be barred? Only those who had actually made open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner, for the five year period. Those persons who had not made such use could be enjoined from further interfering with the owner's superior rights.

In West v. Smith, supra, where an individual claimant asserted a prescriptive right to moor his houseboat in front of another person's privately owned lake front lot and to maintain a catwalk onto the owner's property, this court held that any prescriptive right there acquired was purely personal to the individual claimant. The prescriptive right belonged exclusively to the actual user, and not to guests or assignees. The private owner could therefore exclude all others from making any unapproved use of his property.

As in West v. Smith, supra, the rights contended for here are in the nature of an easement in gross. Being a personal right, the rule is that one individual's prescriptive use cannot inure to the benefit of anyone else. Personal prescriptive rights are confined to the actual adverse user and are limited to the use exercised during the prescriptive period. West v. Smith, supra; Kirk v. Schultz, 63 Idaho 278, 119 P.2d 266 (1941); 2 G. Thompson, Thompson on Real Property, § 346, 264-66 (1961). The fact that hundreds of individuals have made use of respondents' property for the prescriptive period does not bar respondents from enjoining all future trespass to the property. Nor does the use of respondents' property by certain neighbors or friends or even total strangers accrue or inure to the benefit of others. We therefore hold that the "people of the State of Idaho" as distinguished from specific individuals cannot acquire prescriptive rights in and to private property absent some express statutory authority. The one situation where the legislature has allowed such public prescriptive rights is in public highways. When a right-of-way has been used by the general public for a period of five years and has been maintained at public expense, the right-of-way becomes a public highway. See I.C. § 40-103 and Meservey v. Gulliford, 14 Idaho 133, 93 P. 780 (1908). No similar statute applies to the facts of this case. The district court's denial of the prescriptive easement is affirmed.

B. Dedication.

Appellant contends that respondents have made an implied dedication of their property to the public. The district court put the burden on appellant to prove that respondents had by their acts or omissions intended to dedicate the land to public use. The court found that this burden had not been sustained. We concur.

The fundamental principles in this state regarding implied dedications are found in Village of Hailey v. Riley, 14 Idaho 481, 495, 95 P. 686, 691 (1908), quoted with approval in Simmons v. Perkins, 63 Idaho 136, 143, 118 P.2d 740, 744 (1941):

Appellant urges this court to adopt the reasoning of the California per curiam decisions, Gion v. City of Santa Clara and Dietz v. King, 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50 (1970), for the proposition that five years uninterrupted public use of private property creates a conclusive presumption of the owner's intent to dedicate. We decline the opportunity. Instead we adhere to the rule that a party claiming a right by dedication bears the burden of proof on every material issue. The intent of the owner to dedicate his land to public use must be clearly and unequivocally shown and must never be presumed. Simmons v. Perkins, supra; Hamerly v. Denton, 359 P.2d 121 (Alaska 1961); City of Scottsdale v. Mocho, 8 Ariz.App. 146, 444 P.2d 437 (1968); Dept. of Natural Resources v. Mayor and Council of Ocean City, 274 Md. 1, 332 A.2d 630 (1975); Laug v. Ottowa County Road Comm., 37 Mich.App. 757, 195 N.W.2d 336 (1972); Miller v. Roy W. Heinrich & Co., 257 Or. 155, 476 P.2d 183 (1970); Shia v. Pendergrass, 222 S.C. 342, 72 S.E.2d 699 (1952); Bonner v. Sudbury, 18 Utah.2d 140, 417 P.2d 646 (1966); Cummins v. King County, 72 Wn.2d 624, 434 P.2d 588 (1967); Carr v. Hopkin, 556 P.2d 221 (Wyo. 1976).

We find additional support for this rule in I.C. § 36-1604.2 That statute contains the following statement of legislative purpose: "The purpose of this section is to encourage owners of land to make private land and water areas available to the public without charge for recreational purposes by limiting their liability toward persons entering thereon for such purposes." The statute then sets forth various provision by which the private owner will enjoy limited tort liability in actions brought by the recreational user. Although the legislative intent in limiting the tort liability of the generous private owner is not directly on point here, we find it applicable by analogy. It seems incongruous for the legislature expressly to encourage the private owner to make his land available for public recreation and for this court to simultaneously presume that the private owner has thereby dedicated his property to the public use.

The district court found as a fact that "none of the present defendants [respondents] nor any of their predecessors ever intended to make any dedication of the disputed area to public use... . The plaintiff [appellant] did not carry his burden of proof in this regard." Our review of the record discloses substantial and competent evidence to support this finding. Respondents exercised dominion over the property by at various times personally ousting unwelcome users; at other times they enlisted the aid of the city police to do so. Trash cans mistakenly put on the property by the city were ordered removed by respondents. The deed executed in 1923 by John Taylor and Edith Taylor, respondents predecessors in title, conveying to the City of Coeur d'Alene a public right-of-way to the lake over property located to the west of respondents' property expressly limited the public rights to the narrow right of way and expressly prohibited interference with the rights of the private owners. This instrument, together with respondents' own affirmative acts of dominion and unequivocal testimony at trial negative any intent to dedicate the property to the public.

C. Custom.

Another theory advanced by appellant is that the public has by customary usage acquired recreation rights to respondents' property. This theory is based upon the English common law of custom, defined as: "a usage or practice of the people, which, by common adoption and acquiescence, and by long and unvarying habit, has become compulsory, and has acquired the force of a law with respect to the place or subject-matter to which it relates." Black's Law Dictionary 461 (rev. 4th ed. 1968). By the law of custom, the general public could, after many years of unrestricted common usage, acquire rights over private property. Post v. Pearsall, 22 Wend. 425 (N.Y.Ct.Err. 1839); 2 W. Blackstone, Commentaries 263; 2 G. Thompson, supra, § 335.

The acquisition of a right through custom in England required that the use "must have continued from time immemorial, without interruption, and as a right; it must be certain as to the place, and as to the persons; and it must be certain and reasonable as to the subject matter or rights created." 3 H. Tiffany, Law of Real Property, § 935 at 623 (3d ed. 1939). See also 1 W. Blackstone, Commentaries 75-78; 3 Powell, supra, § 414[9]; Public Access to Beaches, 22 Stanford L.Rev. 564, 582 (1970); 25 Univ. of Florida L.Rev. 586, 591 (1973). Virtually all commentators are agreed that, until recently, the law of custom was a dead letter in the United States. Aside from two New Hampshire cases decided in the 1850's no state had applied the doctrine. As recently as 1935 New York refused to accept customary usage as a means of claiming an easement in a private beach for bathing and boating. Gillies v. Orienta Beach Club, 159 Misc. 675, 289 N.Y.S. 733 (1935). The doctrine was exhumed, however, by the Supreme Court of Oregon in State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969), where it was held that the public had acquired customary rights to a privately owned dry sand stretch of beach on the Oregon sea coast. Because of the tract-by-tract limitations inherent in the prescription theory, the Oregon court chose to apply custom to claimed public use of oceanfront lands.

Whether the doctrine exists in this state is a matter of first impression. I.C. § 73-116 provides that "[t]he common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of decision in all courts of this state." There being no statute which expressly or impliedly rejects the doctrine of custom, this court is of opinion that the doctrine does obtain in Idaho. See Industrial Indem. Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970).

The district court applied the law of custom to the facts of this case and concluded that the requisite elements had not been established. The first element, use from time immemorial, means that the use has existed for so long that "the memory of man runneth not to the contrary." State ex rel. Thornton v. Hay, supra, 462 P.2d at 677. In the instant case, the district court found that usage commenced as early as 1912. We agree with the district court that this does not constitute "from time immemorial." The second requirement, that the use must be uninterrupted, is not met because of the fact that respondents had personally and with police assistance removed members of the public from their land. Without further burdening this opinion, suffice it to say that of the seven essential elements of a customary right, the trial court found adversely to appellant on six of them. We find ample evidence in the record to support the findings, and we therefore affirm the district court's denial of any customary rights in this case.

D. Public Trust.

Appellant's final argument is that respondents' lake front property is imbued with a public trust under the principles of the public trust doctrine. That doctrine's leading authority, Professor Sax of the University of Michigan School of Law, articulates the following as the "central substantive thought in public trust litigation":

J. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich.L.Rev. 473, 490 (1970) (emphasis in text).

It is undisputed that the land in contention here is private property, traceable to a patent from the United States Government in 1892. It is also undisputed that the seawall constructed by respondents lies above the ordinary mean high water mark of the lake and that it in no way interferes with navigability or the public's use of the lake's waters. Since no natural resource owned by the state is involved here the public trust doctrine is inapposite. The district court judgment is affirmed in all respects. Costs to respondents.

DONALDSON, BAKES, and BISTLINE, JJ., concur.

SCOGGIN, J., pro tem., dissents.