Ruling Shores Up Landowners’ Claims Couple Gets To Keep Its Island On Lake Coeur D’Alene

Waterlogged stumps and a photo of farmer J.P. Healy’s turn-of-the-century dairy cows helped Judge Craig Kosonen decide an 89-year-old dispute over Lake Coeur d’Alene’s shoreline Friday.

The “ordinary and high water mark” of Lake Coeur d’Alene is 2,121 feet, not 2,128 feet, Kosonen ruled in 1st District Court.

The ruling essentially means that private property extends another seven feet under summer’s high water level - a consequence that’s sure to please waterfront property owners.

For Marvin and Sharon Erickson, it means that the Kidd Island Bay Homeowners Association can’t remove a small island during a proposed dredging project in the shallow bay.

According to the ruling, “if people own submerged land and they don’t want their land dredged, they can stop it,” concluded Will Pitman of the state Department of Lands.

The Ericksons took the state to court over ownership of the tiny patch of land in 1991. The Department of Lands considered the Erickson’s island an illegal fill that technically belongs to the state.

When Kosonen announced his ruling at the end of a three-week civil trial, “we felt exonerated,” Marvin Erickson said Friday.

The Ericksons bought their island in 1989 from Art and Sue Fall for $1,000. They own 2-1/2 acres, but most of it is submerged. The entire island is below the 2,128-foot lake level.

They have no special plans for the island, except to visit it in the summer with their houseboat, and maybe put in a picnic table or gazebo.

“All we got to do was keep 2-1/2 acres of mud,” Erickson said. “But there’s another 30,000 acres around the lake that this will affect.”

Lakefront disputes have often centered around where the ordinary and high water mark of the lake is. Anything beneath that level is legally the state’s property.

In the summer of 1992, a Sanders Beach homeowner had a sunbather arrested for trespassing when the woman would not move to another part of the beach.

The city dropped the charges when the prosecuting attorney was unable to determine where the line was between public and private property.

“It’s never been cleared up,” said Ed Anson, one of the Ericksons’ attorneys. “No case ever, in the history of the state, has settled this. This did it.”

Kosonen’s ruling, if it stands, “will give you total control of your beach property so no one could claim that they had a right to be there,” explained Scott Reed, a local attorney involved in other lakeshore disputes.

Will Whelan, a deputy attorney general for the Department of Lands, said it’s too early to know whether the state will appeal the ruling.

A similar decision was made in 1988 by a district court jury in a lawsuit filed by 28 North Idaho landowners against Washington Water Power. The landowners sued because their land was flooded above the historic 2,121 level by the Post Falls dam.

On appeal, a confidential out-of-court settlement released WWP from liability. In addition, the previous ruling was declared null and void, and court transcripts were shredded.

In 1991, the Idaho Legislature passed a law giving property owners one year to make claims against WWP for flooded property.

“The evidence showed conclusively that there was agricultural value to the land lying between the elevations of 2121 and 2128 prior to the flooding of the land … by the Post Falls dam,” Kosonen said Friday.

“Cougar Bay was a dairy pasture. Of course, now it’s a lake,” he said.

When the lake is low, pre-dam tree stumps are visible between 2,121 feet and 2,128 feet.

Erickson’s attorneys argued that the dam flooded them. Experts testified the trees could not have grown if the area was under water as much as it is now.

Although Kosonen saw a long line of experts pass through his courtroom during the trial, he credited Erickson for digging up some of the most convincing evidence.

Retired and wanting to keep the costs of the lawsuit down, the Ericksons pored over old newspapers and documents from state archives.

For example, Erickson found an affidavit from a Wolf Lodge Bay homesteader who lost his land and had to sell his livestock after the dam was built.

“All his homestead was underwater,” Erickson said. “Water was 1-1/2 feet from his doorstep.”

The law office of John Magnuson, who joined Anson in representing the Ericksons, is cluttered with boxes of evidence for the trial that was mostly gathered by his client.

Magnuson once asked Erickson why he wanted to spend so much time and energy on the case.

“I said, ‘It’s just a small island,”’ Magnuson recalled. “And he told me, ‘Yeah, but it’s my island.”’

, DataTimes ILLUSTRATION: Color photo

MEMO: This sidebar appeared with the story: THE RULING The 1st District Court ruling essentially means that private property extends another seven feet under summer’s high water level at Lake Coeur d’Alene.