Tag Archives: Real property law

Lake Tahuyeh case meanders through riparian rights

UPDATE, Aug. 16, 2011
The Tahuyeh Lake Community Club appealed the Kitsap County Superior Court ruling yesterday, the same day that the judge issued her findings of fact and judgment in the matter.

Check out my story in tomorrow’s Kitsap Sun or review the judge’s findings document (PDF 968 kb).

While I was away for a week, Kitsap County Superior Court Judge Jeanette Dalton handed down a most intricate ruling in the case called Tahuyeh Lake Community Club versus Washington Department of Fish and Wildlife.

This legal dispute has gone on for years and may not be over even now. But, through it all, I’ve learned a great deal about riparian rights to use shorelines and surface waters in Washington state.

The bottom line, if the ruling stands, is that WDFW will be allowed to build a public boat launch on Lake Tahuyeh. Officers of the community club pursued the case even after the agency withdrew its plans for a launching facility, which was given conditional approval.

Local fishing groups wish to have access to Lake Tahuyeh for recreation, while the community club maintains that the lake is private and under its exclusive control.

Judge Dalton understood the legal and societal implications of her decision:

“In bringing this lawsuit, the members of the community club seek to protect important rights to the quiet enjoyment of their private shoreside community. In defending this action, the state of Washington also seeks to defend values central to our society, those of public access to public lands.

“Fortunately, resolution of this action does not require this court to resolve the relative importance of the competing values represented by the two parties. Rather, centuries of lawmakers have weighed these values for us, and their legal mandates dictate the necessary outcome of this case.”

Judge Dalton’s ruling maneuvers logically through a maze of facts and legal benchmarks before reaching the conclusion that a single parcel of lakefront property provides legal access to the entire surface of the lake. Much of the decision hinges around the question of whether Lake Tahuyeh was actually a lake when the property was first conveyed by the federal government and later when the state acquired its small parcel of property — both long before a dam formed the lake as we know it today.

If Lake Tahuyeh was nothing more than a swamp or a man-made lake, then ownership and access would be defined by boundary lines drawn on a map and the related legal descriptions. If the lake were large and deep enough to be a “navigable” waterway, then the state would have claimed ownership to the entire lake bed.

But Dalton concluded — based on historical documents and testimony from folks who fished on the lake a half-century ago — that Lake Tahuyeh was, and is, a “nonnavigable lake.” As such, each property owner along the shoreline owns a pie-shaped piece of the lake bed to the center — unless that ownership is conveyed to someone else. In this case, the community club acquired ownership of most of the lake bed, but the state retained its ownership, Dalton concluded.

Whether the state has riparian rights to use the lake depends not only on whether Lake Tahuyeh was actually a lake, but also whether those rights were conveyed during successive ownerships of the property.

Jean Bulette, president of Tahuyeh Lake Community Club, has told me several times and argued in a Kitsap Sun op-ed piece in March 2010 that the lake bed and its riparian rights were granted to predecessors of the club and can never be taken away.

Judge Dalton agreed that the original owners obtained title to the lakebed when the federal patent conveyed ownership, but she also gave weight to the original federal survey of the site, which included a “meander line” to note the approximate edge of the water:

“There is some authority for the proposition that a lot is conclusively riparian if it bounders a ‘meander line,’ at least in the absence of evidence showing that the lot was meant to run only to the meander line and not to the actual edge of the watercourse.”

What is the evidence that the original owners meant to pass on riparian rights — lake access — to the state in 1939, when the state took ownership of the parcel?

“The court finds that the parties likely were contemplating public access to Lake Tahuyeh by the conveyance to the department. It was a historic aberration for a grant of land to be only 200 feet wide and run between a known access road and a lake, at least where other acquisitions of property during those early decades were much larger parcels of land. The mere dimensions of the department’s lot suggest — and probably require — the conclusion that the lot was intended for water access….

“Other factors lead the court to this conclusion, includ(ing) that the consideration for the transfer of the property was apparently not money, but rather the department’s agreement to allow the grantor to control the level of Tahuyeh Lake and to allow removal and harvest of the sphagnum moss.

“If the transfer was not intended to run into the lake at all, then raising or lowering the level of the lake would have had no consequences to the state. The fact that such an agreement was specifically negotiated as consideration for the deed indicates to this court that the grantor intended to convey, and did convey, the bed of the lake under the water as well as the upland parcel to the road.

“The court therefore determines that the lot conveyed to the department included riparian rights to Tahuyeh Lake, which the lot abutted.”

While a riparian owner has rights that extend to the entire surface of the lake, Judge Dalton pointed out that such rights must “not interfere unreasonably with the riparian rights of other owners.”

Dalton said she does not minimize the potential effects that her ruling could have on the “solitude currently enjoyed by members of the community club.” Still, the facts in this case do not address the extent to which public use might interfere with the recreational rights of community club members. That, Dalton said, could be the subject of future legal action.

Further information:

Judge Jeanette Dalton’s ruling

Steve Gardner’s Kitsap Sun story

Christopher Dunagan’s preview of Lake Tahuyeh case

Legal questions abound for beach walking, driving

It has been seven months since I launched an informal poll that asks whether people should be allowed to walk across privately owned tidelands as a basic right reserved to the public. The number of respondents has reached nearly 500, and I’d say it is time to retire the poll.

Last July, when I examined the legal implications of the Public Trust Doctrine for a story in the Kitsap Sun, the issue generated 91 lively comments on all sides of the issue. (See the bottom of the story.) Subsequently, I discussed the questions further in Water Ways on July 8, when I launched the poll.

As responses have grown, the percentage of people in each camp has remained nearly the same. In the final count, 62 percent of respondents (301 votes) said the public should be allowed to walk across private tidelands below the high-tide mark.

The remainder was split almost equally between those who believed the public has no right to walk across private tidelands (93 votes) and those who believe the courts should strike a balance, perhaps by allowing people to walk on a lower section of beach when the tide is out (92 votes).
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