June 2, 2010 in Idaho

High court: Road easement doesn’t erase dock rights

By The Spokesman-Review
 

BOISE - Just because a road easement was granted years ago along someone’s lakefront property doesn’t mean the property owner has given up the right to build a dock on the lake, the Idaho Supreme Court ruled Wednesday.

The high court’s clear ruling puts an end to the Idaho Transportation Department’s repeated objections to certain lakefront landowners’ dock permits, and an attorney for the two landowners who won the case said he estimates another half-dozen Lake Coeur d’Alene owners are ready to submit their dock permits now that this case has been decided.

The case involved two owners of adjacent vacant lots in the Silver Beach area, east of the Beach House Restaurant along East Coeur d’Alene Lake Drive. That road, the former route of I-90 east of Coeur d’Alene, now has two lanes of traffic plus a bikeway park along the lake; former owners of the land gave ITD a road easement along the lakeshore in 1940.

ITD argued that the road easement eliminated the owners’ dock rights, and the Idaho Land Board agreed and denied both dock permits in 2006. But others in similar situations had gotten such permits for years, including one issued just two months earlier.

“You go down from either one of these two properties a mile, there’s over 30 docks,” said attorney John Magnuson, who represented both landowners, Chris Keenan and Lake CDA Investments LLC. “There’s a dock on the property each side of it.”

The two owners appealed the Land Board’s denial of their dock permits, and they not only won in district court, they were awarded attorney fees totaling $23,000.

The Idaho Supreme Court, in its ruling on Wednesday, upheld the lower court’s decision, but reversed the award of attorney fees. Such awards can be made only when the losing party acted “without a reasonable basis in fact or law.” The high court said no court had previously specifically ruled that road easements don’t cut off dock rights, so there was a basis for the Land Board and ITD’s arguments. But the justices, in a unanimous decision authored by Chief Justice Dan Eismann, made that specific ruling.

“We hold that an easement for a public street, road or highway that extends down to the ordinary high water mark of a navigable lake does not terminate the littoral rights of the landowner whose property is subject to the easement,” Eismann wrote.

“Littoral” rights are the rights to build a dock extending out from waterfront property. ITD had argued that the property owners had no more right to “encroach” on the easement area than any stranger.

Idaho state Rep. Bob Nonini, R-Coeur d’Alene, hailed the high court’s ruling, which he called “just super news.” Nonini introduced legislation in 2008 to declare ITD wrong and the landowners right; it passed the House narrowly, but died by one vote in a Senate committee.

One wrinkle to the case: It only affects property where the road easement along the lakeshore was granted prior to 1953. That’s because after that time, ITD acquired full title to land it wanted for roads, rather than just easements.

But Magnuson said there could be property affected by the ruling on lakes all over the state, as the time between statehood and 1953 was when Idaho was building roads around many of the state’s lakes.

He said his clients are disappointed at the reversal of the attorney fee award. “They found themselves in the position of being the guinea pigs for the denial of dock permits based on this theory of an administration creation,” he said. “It was just a policy position adopted by some unelected official that tried to put it through.”

The case doesn’t affect the ongoing dispute over Sanders Beach in Coeur d’Alene, where lakefront property owners have sought unsuccessfully to build private docks in a public swimming area.


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