Opinion
No. 4282.
Argued March 3, 1954.
Decided May 27, 1954.
Meredith Bay in Lake Winnipesaukee is one of the public waters of the State held in trust for public use.
While littoral owners have rights in public waters more extensive than members of the public in general they have no right to build or make land by fill or to erect structures into the waters in front of their property so as to unreasonably interfere with the paramount rights of the public therein.
Such building by a littoral owner along the frontage of adjoining land, whether title to such land is privately or publicly held, is unreasonable and beyond the littoral owner's rights.
Rights to public lands and waters may not be acquired from the State by adverse possession, laches, estoppel or waiver.
The State is not estopped to assert public rights if its officials undertake to grant such rights without authority.
Hence, where a littoral owner of land on public waters graded an artificial area, below the natural high water mark, created from fill by the State in highway construction, such owner could acquire no rights thereto as against the State by virtue of any oral agreement with the Highway Commissioner without the necessary authority from the Governor and Council.
In such case, where the littoral owner acted in good faith in grading the artificial area the equities in the matter would permit a settlement of the common boundary with the State as owner of adjoining frontage and the granting of other equitable relief so that such owner would not be deprived of its shoreline.
BILL IN EQUITY, to determine a boundary line as between the State and the defendant and to remove cloud from title. Trial by the Court (Wheeler, C. J.) who made findings of fact and transferred without ruling the following questions of law:
"(1) Did the late Frederic E. Everett, Highway Commissioner, have authority under existing laws to enter into an oral agreement in behalf of the State with the Defendant, to the extent of granting title in fee to the so-called filled-in area?
"(2) Did the Governor and Council have authority under existing law to authorize and empower Everett to establish a boundary line between the land of the State and the land of the Defendant, the effect of which might give Defendant title in fee to a portion or all of the so-called filled-in area?
"(3) May a littoral owner of a great pond lawfully acquire title in fee simple to additional dry land by filling up the bed of such a pond with earth fill and rocks below the natural high water mark in the manner disclosed by the testimony in this case?"
The findings of fact, as to which there is little dispute, appear in the reserved case hereinafter quoted:
"The petitioner is the owner of a certain tract of land on the westerly side of Meredith Bay, bounded on the north by Cram Mill Brook and lying generally southerly of defendant's property, by virtue of a deed from Meredith Linen Mills, Inc. . . .
"The defendant is the owner of a certain tract of land which, at the time of the filling operations described herein, was bounded northerly by Winnipesaukee Street, westerly by Cram Mill Brook (opposite land of petitioner), southerly by said brook and Lake Winnipesaukee, and easterly by land of one Wallace . . . The said Meredith Linen Mills, Inc. and defendant were thus both littoral and riparian owners, the boundary between their properties being said Cram Mill Brook.
"This litigation arose as a result of a highway layout by a commission appointed by the Governor and Council. In July, 1947, the return of the commission provided for the laying out and construction of a new state highway closely adjoining the westerly shore of Lake Winnipesaukee in Meredith. South of the defendant's property, the layout provided a right of way fifty feet easterly from its center line, narrowing to thirty-three feet at Station 154, past defendant's property.
"In the taking, it was necessary for the State to take eleven hundred forty square feet of defendant's property. After some negotiations, the defendant accepted three thousand fifty-one dollars for that portion of its property made up of the following items: (1) Cost of moving filling station, twenty-eight hundred and eighty dollars; (2) Land at fifteen cents per square foot, one hundred and seventy-one dollars. The money was paid, and the president of the defendant's corporation signed a receipt stating that this sum was in full payment of all claims against the State for highway layout.
"It became necessary to relocate Cram Mill Brook some distance easterly of defendant's property and fill in a portion of the lake shore and brook channel for the new roadbed. Subsequent to the original settlement with the defendant, N. O. Whitford, Right of Way Engineer for the State Highway Department (since deceased) agreed with Charles Stafford, president of the defendant corporation, that in addition to the money settlement, the State would create artificially eleven hundred forty square feet of land at the mouth of said Cram Mill Brook. Instructions to this effect were transmitted to Robert Whittaker, Construction Engineer of the State Highway Department, to arrange this with the contractor. The contractor commenced construction August 4, 1947, and completed the job November 17, 1948.
"During the course of construction, it became necessary for the contractor, under its contracts, to remove from location approximately eighteen hundred and twelve cubic yards of unsuitable fill, for which it was paid seventy-five cents per yard. The shore of the lake southerly of defendant's property, being the nearest and most economical area for the disposal of said fill, the contractor sought and obtained permission of the defendant to deposit the fill on the southerly shore of defendant's property extending out into the lake. The filled-in area created by this operation is shown on Exhibit 2, divided into three parcels, designated `Gravel Area,' `Mowed Area,' `Rough Fill Area.' Representatives of the State Highway Department approved of the filling under the following conditions: (1) That the material must not be allowed to block the tail race entering the lake from the Meredith Linen Mills building, and, (2) the material must be deposited in such a way as not to form puddles or interfere with drainage from the highway. No authority was obtained from the Governor and Council or the Legislature to fill in the lake as described. The dumping was done openly and visible to all concerned, including the defendant. After the dumping operations commenced, the president of defendant's corporation, Charles Stafford, conferred with the late F. E. Everett, then Highway Commissioner, and offered to cancel his oral agreement with Whitford for the creating of eleven hundred and forty square feet of artificial land at the mouth of Cram Mill Brook if Everett would agree that defendant might have absolute ownership to the land created by said filling. Everett agreed to this arrangement, and the defendant commenced improvements, consisting of capping a portion of the rough fill with gravel and another area with loam and grass and partially constructing a wharf at the southeasterly end of the fill. The capping and grading cost the defendant approximately two thousand dollars. The wharf, about one-third completed, will cost twenty-five hundred dollars.
"Lake Winnipesaukee is a great pond or lake, with a natural highwater mark at elevation 504.32 above sea level. . . .
"The fill authorized by the Highway Commissioner and his agents eliminated the building of rip-rap along a portion of the lake shore otherwise necessary to hold the bed of the highway in place. The filling in of the area in question was connected with and a part of the building of the highway, and the filled-in area improved the landscaping of the highway and immediate vicinity.
"The matter was the subject of an informal conference or discussion with the then Governor and Council, of which the said Charles Stafford was a member, as a result of complaints by citizens of Meredith. The equities of the defendant's claim of title to the land was impliedly recognized, when at a meeting of the Governor and Council on June 14th, 1949, it was voted that Mr. Everett, then Highway Commissioner, be authorized under the authority of Section 27, 28 and 29 of Chapter 269, Revised Laws, to establish a boundary between the land of the State and land of the defendant. At a subsequent meeting of the Governor and Council, held July 5th, 1949, it was voted to defer action on the vote taken on said June 14th, until such time as an agreement could be reached by all parties in interest. Councilor Stafford refrained from voting at said meetings. No agreement was ever reached, and the instant proceedings resulted.
"The Court finds that in all its dealings with the State in connection with the land in question the defendant, through its president, Charles F. Stafford, acted honestly, openly and in good faith. The Court is not disposed to dispute the position of the State and town as to the law with respect to the ownership of the bed of a great pond. If the defendant is thus deprived of its title and use of the filled area as a result of an unauthorized and illegal oral agreement with agents of the State, it will be deprived of its shoreline. The equities weigh heavily in its favor.
"If the late F. E. Everett, then Highway Commissioner, had authority under existing laws to make an oral agreement with the defendant with respect to the filled-in area, the defendant should have a decree in its favor to the extent of such authority. The petitioners are not unreasonable, and recognize some justice in the defendant's claims but believe that they lack authority to enter into settlement negotiations without legislative authority. It is the position of the State and the town of Meredith that the State owns the bed of the lake to the natural highwater mark, and that the land artificially created by the fill could not become the property of the defendant by right of accretion or by right of alluvion, and the ownership to the land underlying a public lake cannot be alienated, except by legislative authority."
Other facts appear in the opinion.
Louis C. Wyman, Attorney General, George F. Nelson, Assistant Attorney General (Mr. Nelson orally), for the State.
Upton, Sanders Upton (Mr. Richard F. Upton orally), for the town of Meredith, as an intervening plaintiff.
Tilton Tilton (Mr. Robert P. Tilton orally), for the defendant.
It is a basic proposition which has become well settled by usage, statute and judicial decision that lakes and great ponds in New Hampshire belong to the public and are held in trust by the State for public use. R. L., c. 182, ss. 17, 18; Concord Company v. Robertson, 66 N.H. 1; Percy Summer Club v. Welch, 66 N.H. 180; State v. Sunapee Dam Co., 70 N.H. 458; Whitcher v. State, 87 N.H. 405. Meredith Bay in Lake Winnipesaukee, which is one of the boundaries of the lands owned by the parties to this dispute, is a part of one of the public waters of the State. Musgrove v. Cicco, 96 N.H. 141; Rothrock v. Loon Island, 96 N.H. 421. While the title of the State to the bed of the lake extends to the natural high water mark (Taggart v. Jaffrey, 75 N.H. 473), the defendant and other littoral owners have rights which are more extensive than those of the public generally. Willis v. Wilkins, 92 N.H. 400. Such littoral owners have the right to erect wharves and other structures into the lake which are superior to the rights of those who have only the rights of a member of the public. Dolbeer v. Company, 72 N.H. 562. Littoral owners may use the lakes and public waters in front of the property for recreational and other similar purposes in a more extensive manner than those who enjoy the rights to use the lake and public waters only as members of the public. Hoban v. Bucklin, 88 N.H. 73.
Although littoral owners have extensive rights in public waters, they are always subject to the paramount right of the State to control them reasonably in the interests of navigation, water storage and classification, health and other public purposes. Richardson v. Beattie, 98 N.H. 71; State v. Hutchins, 79 N.H. 132. Revised Laws, chapters 181, 182, 266, 267; Laws 1947, chapter 183 as amended. Since the State's rights in land and waters are not always enforced and protected with the same alacrity as private rights (State v. Company, 49 N.H. 240, 252), the Legislature has provided that no person can acquire title to State lands by adverse possession. R. L., c. 411, s. 6. For the same reason it has been decided that the State does not forfeit or lose its rights to public lands and waters by laches, estoppel or waiver. State v. Hutchins, supra; Trustees c. Academy v. Exeter, 90 N.H. 472, 495; St. Regis Co. v. Board, 92 N.H. 164, 169. Nor is the State estopped to assert public rights if its officers acted without authority. Ham v. Interstate Bridge Authority, 92 N.H. 268; State v. Cote, 95 N.H. 428. "It has been expressly decided that a state is not estopped by the unauthorized acts of its officers." Smith v. Epping, 69 N.H. 558, 560.
There is authority that a littoral or riparian landowner may add "made or filled land" (Watson v. Horne, 64 N.H. 416, 417) to his property assuming, of course, that it is a reasonable use of his property and not injurious to neighboring property or the public rights of the State. See Cheever v. Roberts, 82 N.H. 289. This right has sometimes been referred to as "a reasonable private right of using this public property." Dolbeer v. Company, 72 N.H. 562, 564. Even where the littoral owner limits the made or filled land to the shoreline of his own abutting property, he assumes the risk that his construction of a "wharf . . . or other thing, below the water's edge, being found to be unreasonable, and his structure being an abatable nuisance." Concord Co. v. Robertson, 66 N.H. 1, 20. It follows that the littoral owner has no right to build land or structures out from the lake frontage of his property if the same will unreasonably interfere with the paramount rights of the public to use the lake. To build them along the frontage of adjoining land, whether title to such land is privately or publicly held, would not only be clearly unreasonable but beyond the rights of the littoral owner.
The defendant's claim to title to the filled-in area stands or falls on the authority of the Highway Commissioner to grant it to him. The defendant received no conveyance to the filled-in area and, in any event, the conveyance to be binding required approval of the Governor and Council which was never obtained. R. L., c. 90, pt. 10, s. 11, as inserted by Laws 1945, c. 188. Although the Highway Commissioner had broad powers over highway matters which he exercised on behalf of the State (Id., s. 7) the sale, conveyance and lease of property acquired for highway purposes required the approval of the Governor and Council. Id., s. 11. The same rule applies to surplus property which is not immediately needed for the right of way proper. Id., pt. 7, s. 2. While this land transaction was entered into honestly, openly and in good faith, it could not be legally effective to transfer property from the plaintiff to the defendant. State v. Hutchins, 79 N.H. 132. The answer to question one is "no."
Question three is whether on the evidence in this case a littoral owner on a great pond may acquire fee simple title to additional dry land by filling up the bed of the great pond below the natural high water mark. For reasons hereinafter indicated the answer must be "no." An affirmative answer would result in serious and extensive encroachments on the public rights in public waters of the state, would place a premium on trespasses against the public right and encourage one littoral owner to develop his shore frontage at the expense of others. The whole history of the development of lakes and great ponds in this state militates against the allowance of such commercial developments without legislative sanction. Dana v. Craddock, 66 N.H. 593; State v. Welch, 66 N.H. 178; State v. Sunapee Dam Co., 70 N.H. 458; R. L., c. 267, ss. 47-50; Laws 1949, c. 307.
It is true that the filled-in area eliminated the building of rip-rap along a portion of the lake shore otherwise necessary to hold the bed of the highway in place. While the fill was thus connected with the highway project and improved the general appearance of the immediate vicinity, it does not follow that the land so created became the private property of the defendant. We know of no decision which allows a littoral owner to acquire fee simple title to fill deposited in a lake and thus accomplish its transfer from the public ownership to private ownership by grading and improving the filled land. 1 Powell, Real Property s. 160, pp. 624-625 (1949). If this was allowed it would be contrary to the statutory provisions punishing trespass on State lands and prohibiting private owners from acquiring title to State lands by adverse possession. R. L., c. 411, ss. 5, 6.
The answer to question two cannot be a categorical "yes" or "no." The exact point at which Cram Mill Brook ended and Lake Winnipesaukee began is difficult to ascertain. The State was not only the owner of public rights in Lake Winnipesaukee but owned certain land on the westerly side of the lake by virtue of the deed from Meredith Linen Mills and as to the defendant was an adjoining owner within the meaning of R. L., c. 269, ss. 27-29. While the defendant could not have compelled the State to determine the boundary line (Rothrock v. Loon Island, 96 N.H. 421), the State through the Governor and Council would have authority to settle a boundary dispute. The effect of this might well be to establish title in fee in the defendant to a minor portion of the filled-in area because of the uncertainty as to the location of the true boundary where the properties adjoin. Cf. Bailey v. Rolfe, 16 N.H. 247, 251, 252. It would not be possible to give the defendant title in fee to the whole of the area since the statute furnishes no authority for such procedure.
While we have answered the questions transferred there remains the further consideration whether there is any equitable solution to this case which will not deprive the defendant of its shoreline. The Court has found that the defendant has expended considerable money improving the property and that this was done openly, honestly and in good faith and that the "equities weigh heavily in its favor." Possible equitable solutions which may be considered by the parties and the Court include (1) legislative action (cf. Laws 1951, c. 280); (2) settlement of the boundary dispute by the Governor and Council and the defendant pursuant to R. L., c. 269, ss. 27-29; or (3) the one that was adopted in the somewhat analogous case of Tiffany v. Oyster Bay, 234 N.Y. 15.
As we understand the exhibits the defendant formerly had approximately one hundred feet of shore frontage while the State had two hundred twenty feet. If the defendant is to receive easement rights in the new shoreline in order to preserve the former proportions it would be entitled to ten thirty-seconds of the new two hundred sixty foot shoreline or eighty-one feet. This would involve establishment of a line from the dividing point on the new shoreline, to the defendant's southwesterly bound where the thread of the brook formerly ended and the lake began. The State would continue to hold in fee simple the area which was formerly the bed of the lake, subject to the special littoral rights of the defendant in so much thereof as lies between the portion of the new shoreline designated for the defendant's use, and the former shoreline of the land owned by it in fee. Tiffany v. Oyster Bay, supra. The rights would include the privilege to cross and recross the area for the purpose of using the frontage along the eighty-one foot section to build a wharf, boathouse or other similar structure and to exercise thereon the common privileges of littoral owners. Whitcher v. State, 87 N.H. 405, 409. This method of dealing fairly with changed conditions on public waters finds some support in Watson v. Horne, 64 N.H. 416, 417.
Remanded.
All concurred.