This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-1776

 

Newport Island Yacht Club, Inc.,

Plaintiff,

 

vs.

 

River Heights Marina, Inc., f/k/a Inver Grove Heights Marina, Inc.,

Appellant,

 

and

 

River Heights Marina, Inc., f/k/a Inver Grove Heights Marina, Inc.,

Appellant,

 

vs.

 

Glenn Urevig, et al.,

Defendants,

 

Twin City Marina, Inc.,

Respondent.

 

Filed April 9, 2002

Affirmed; motion denied

Robert H. Schumacher, Judge

 

Dakota County District Court

File Nos. C4918641, C0916224

 

 

Robert J. Polski, Jr., 1712 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101-1819 (for appellant)

 

Michael G. Hamilton, Tanner, Hamilton & Associates, P.A., 755 Westview Drive, Post Office Box 65, Hastings, MN 55033 (for respondent)

 

Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant River Heights Marina, Inc., f/k/a Inver Grove Heights Marina, Inc., challenges the district court's establishment of a fixed riparian boundary line between River Heights's marina and the marina belonging to respondent Twin City Marina Inc. River Heights contends that the district court (1) used an improper method for determining riparian boundaries; (2) erred by requiring River Heights to move its dock; and (3) erred by enjoining River Heights from using certain water space. Twin City moves this court for attorney fees incurred in defense of this appeal. We affirm and deny the motion for attorney fees.

FACTS

This case involves a riparian boundary line dispute between River Heights and Twin City. Twin City is the owner of real estate located on the shore of the Mississippi River backwater in the City of Inver Grove Heights. River Heights is the owner of shoreline real estate located directly south of and contiguous with Twin City's property. River Heights owns and operates a marina facility on its property. This marina is in direct competition with the marina owned and operated by Twin City.

The boundary dispute has been ongoing for approximately the last ten years and centers around the location of dock F, which is owned by River Heights, and whether dock F's location infringes upon Twin City's water space. The matter first came to trial before the district court in October 1993, and a judgment was entered thereafter. On March 9, 1994, the district court ordered an amended judgment requiring River Heights to remove the north "fingers" of dock F from Twin City's water space. The district court later clarified this to mean "all fingers."

River Heights subsequently appealed. On February 21, 1995, this court affirmed the district court. Newport Island Yacht Club v. Inver Grove Heights Marina, Inc., No. C5-94-1204, 1995 WL 70215, at *4-*5 (Minn. App. Feb. 21, 1995). On March 29, 1995, the Minnesota Supreme Court denied review. Thereafter, River Heights leased spaces on the north side of dock F. Consequently, Twin City sought relief from the district court by seeking enforcement of the March 9, 1994 amended judgment. On June 12, 1996, the district court issued an amended order, forbidding River Heights from mooring boats on the north side of dock F. River Heights did not appeal the amended order.

During June 2001, River Heights moved dock F so that it occupied some of the water space previously occupied by the dock's north "fingers." As a result, Twin City filed a motion requesting that the district court enforce its March 9, 1994 amended judgment, and its June 12, 1996 amended order, by ordering River Heights to comply with the amended judgment as it pertained to the usage of water space north of dock F's prior location. On August 16, 2001, the district court ordered River Heights to move dock F to a location south of the extended property line separating Twin City's southernmost boundary and River Heights's northernmost boundary. The court also enjoined River Heights from using the water space directly north of the extended property line. River Heights appealed and the matter is again before this court.

D E C I S I O N

1. River Heights contends that the district court erred by adopting a fixed riparian boundary line that extended out from the parties' common property line. The principles of equity should guide the conclusion in each particular case when establishing a riparian boundary. Georgia v. South Carolina, 497 U.S. 376, 408, 110 S. Ct. 2903, 2921 (1990); Rooney v. Stearns County Board, 130 Minn. 176, 180-81, 153 N.W. 858, 860 (1915). The granting of equitable relief "is within the sound discretion of the trial court" and will be reversed on appeal only if there is clear abuse of that discretion. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979).

We have previously stated in this case:

There is no Minnesota case law indicating how the riparian boundary should be drawn for riverfront property although a method is described in Edward S. Bade, Title, Points and Lines in Lakes and Streams, 24 Minn. L. Rev. 305, 306-07 (1940). But it is clear from the case law that there is no single method of drawing the riparian boundary that is applicable in every case and the boundary should be drawn in a fair and equitable manner. Rooney v. Stearns County Board, 130 Minn. 176, 180-81, 153 N.W. 858, 860 (1915); Scheifert v. Briegel, 90 Minn. 125, 133, 96 N.W. 44, 44 (1903); see also Tauscher v. Andruss, 401 P.2d 40, 41 (Or. 1965); Borsellino v. Kole, 484 N.W.2d 564, 567 (Wis. Ct. App. 1992); Nosek v. Stryker, 309 N.W.2d 868, 874 (Wis. Ct. App. 1981).

 

Newport Island Yacht Club, 1995 WL 70215, at *4. The August 16, 2001 order established a fixed riparian boundary between Twin City and River Heights by extending the property line separating Twin City's southernmost boundary and River Heights's northernmost boundary out into the backwater. This boundary line brings River Heights in compliance with its conditional use permit issued by the City of Inver Grove Heights and approved by the Minnesota Department of Natural Resources. Conversely, a different riparian boundary line would appear to be inconsistent with both River Heights's conditional use permit and Twin City's conditional use permit. Thus, the boundary was drawn in a fair and equitable manner.

Nevertheless, River Heights argues that the district court erred in its determination of the riparian boundary line because the court established the boundary by simply extending the land boundaries into the main channel of the river instead of determining the boundary lines from the primary shore to the nearest shoreline. River Heights argues that its method of determining boundary lines is supported by Georgia, 497 U.S. 376, 110 S. Ct. 2903, Richards v. N.Y., New Haven & Hartford R.R., 60 A. 295 (Conn. 1905), and U.S. Department of the Interior Bureau of Land Management, Manual of Surveying Instructions (1973) [hereinafter Survey Manual].

In Georgia, the United States Supreme Court examined a boundary line dispute between the states of Georgia and South Carolina. See generally Georgia, 497 U.S. 376, 110 S. Ct. 2903. Normally, the boundary between the two states is the middle of the Savannah River. Id. at 400, 110 S. Ct. at 2917. The problem in Georgia, however, was how to determine the boundary given the presence of numerous islands in the river. Id. at 385-405, 110 S. Ct. at 2910-2920.

Georgia is distinguishable from this case for three reasons. First, determining the boundaries between the two states in Georgia involved interpretation of the Treaty of Beaufort. Id. at 380-81,110 S. Ct. at 2907-08. Second, there are no islands present here that would affect the location of the boundary. Third, Georgia examined a boundary dispute between lands on opposite shorelines. Here, the properties are on the same shoreline.

In Richards, the Connecticut Supreme Court examined a riparian rights dispute regarding whether the riparian rights of a person who owned land fronting a cove on the Thames River extended to the Thames River itself. See generally Richards, 60 A. 295. Richards, however did not involve a boundary dispute between adjoining landowners. See generally id. Also, unlike in Richards, there is no dispute here regarding whether the parties' riparian rights extend out into the Mississippi River itself.

The Department of the Interior's Manual of Surveying Instructions, as quoted in River Heights' brief, is inapplicable to the facts of this case for two reasons. First, the manual's clear language states that it is meant as guidance for determining the boundaries of properties located on opposite shorelines. It does not appear to give any guidance for determining riparian boundaries for properties located on the same shoreline. Second, the manual is simply a guide and does not constitute the law to be applied by Minnesota Courts. Cf. State v. Kuluvar, 266 Minn. 408, 418, 123 N.W.2d 699, 706-07 (1963) (stating that Minnesota has power to conserve integrity of its public lakes and rivers); Johnson v. Seifert, 257 Minn. 159, 165, n.5, 100 N.W.2d 689, 694, n.5 (1960) (stating that riparian rights are subject to state regulation for public purposes). The district court did not clearly abuse its discretion in establishing a riparian boundary by extending the property line separating Twin City's southernmost boundary and River Heights's northernmost boundary out into the backwater.

2. River Heights also contends that if this court finds that the district court erred by establishing the riparian boundary at issue here, then the district court also erred by requiring River Heights to move dock F. The owner of riparian land enjoys the right of exclusive access to the water that is directly in front of his waterfront property. State by Head v. Slotness, 289 Minn. 485, 487, 185 N.W.2d 530, 532 (1971). Because we conclude that the district court did not err in establishing the boundary, we also conclude that the court similarly did not err by requiring River Heights to move dock F.

3. River Heights additionally contends that if this court finds that the district court erred by establishing the riparian boundary at issue here, then it also erred by enjoining River Heights from using water space directly north of the extended property line. Interference with riparian rights is an appropriate subject for injunctive relief. Petraborg v. Zontelli, 217 Minn. 536, 554-55, 15 N.W.2d 174, 183-84 (1944). When there is continuing and repeated interference with real property rights, the law presumes irreparable damage and inadequate legal remedies. Whittaker v. Stangvick, 100 Minn. 386, 391-92, 111 N.W. 295, 297 (1907). Because we conclude that the district court did not err in establishing the boundary, we further conclude that the court similarly did not err by enjoining River Heights.

4. Twin City moves this court for attorney fees incurred in defense of this appeal, arguing that River Heights filed the appeal in bad faith. Because there is no evidence that River Heights's appeal was made in bad faith, we deny the motion.

Affirmed; motion denied.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.