               IN THE SUPREME COURT OF IOWA
                           No. 140 / 04-1968

                           Filed July 20, 2007


STEPHEN L. ORR, SHIRLEE ORR,
RONALD E. CAMERON, RANDY
SEVDE, and COLLEEN KATERIE
SEVDE,

      Appellees,

v.

JEFFREY MORTVEDT and
SUSAN MORTVEDT,

      Appellants.


      Appeal from the Iowa District Court for Hamilton County, Timothy J.

Finn, Judge.



      The defendants appeal from the district court’s ruling declaring the

property interests of multiple owners of a lake formed in an abandoned

quarry. AFFIRMED.



      Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellants.


      William J. Koehn and Heather L. Palmer of Davis, Brown, Koehn,

Shors & Roberts, P.C., Des Moines, for appellees.
                                      2
HECHT, Justice.

        The defendants appeal from the district court’s ruling denying their

request for reformation of a deed and declaring: (1) they have the right to

use and enjoy only that portion of a man-made lake covering an abandoned

rock quarry within the legal description of their deed; (2) the plaintiffs may

erect a fence, berm or other structure in the lake marking the borders of

their properties; and (3) the plaintiffs may drain the water covering their

respective properties and reopen the quarry. We affirm.

        I.      Background Facts.
        The Twedt family owned a rock quarry and land surrounding it in

Hamilton County. The mining of the quarry was discontinued, and the

excavated area consisting of approximately thirty acres became a lake filled

by ground water springs and normal rainwater run-off. The Twedt family

subsequently sold the real estate in a series of transactions over a period of

years. Each of the transactions resulted in the conveyance of a portion of

the lake bed and land surrounding it.

        In the first transaction, Randy Sevde and Colleen Katerie Sevde

purchased approximately twenty acres of the lake bed along with adjacent
land situated east, south and west of the lake in 1994. In the second

transaction in the series, Jeffrey and Susan Mortvedt purchased a tract

west and north of the lake, including the northern tip of the lake bed, in

1996.        In 1998, Stephen and Shirlee Orr acquired a parcel situated

primarily on the east side of the lake and including that part of the lake bed

located between the parts previously purchased by the Sevdes and the

Mortvedts. In the last conveyance of relevance to this case, the Orrs soon

thereafter conveyed a portion of the property they had acquired, including a

part of the lake bed, to Ronald Cameron.
                                      3
      A   boundary    dispute   arose between the Mortvedts and the Orrs.

The Mortvedts contended their property extended to the water’s edge on the

west side of the lake. The Orrs disagreed, claiming a survey undertaken

and filed of record at the time of the Mortvedts’ purchase confirms that the

Mortvedts’ east boundary line lies west of the water’s edge and establishes

that the Orrs own a narrow strip of land on the west side of the lake. This

boundary dispute escalated when the Orrs cut down trees and planted

other vegetation on the disputed narrow strip of land. Disharmony also

resulted from the neighbors’ inability to agree about their respective rights

to use the lake. The Sevdes and the Orrs objected when the Mortvedts

used, for fishing and boating, parts of the lake beyond the boundaries of the

lake bed owned by the Mortvedts.
      The Orrs, the Sevdes, and Cameron filed this action seeking: (1) a

resolution of the boundary dispute between the Orrs and the Mortvedts; (2)

an adjudication of whether the owners of the lake bed have a legal right to

access the entire lake or only that portion of the lake within the legal

descriptions of their respective deeds; (3) a declaration that they have the

right to drain the water covering their property and fence it; (4) a
determination that they are entitled to exclusive possession, use and

enjoyment of the minerals located within their respective properties; and (5)

compensatory damages for trespass and injunctive relief to prevent future

trespasses by the Mortvedts.

      The Mortvedts filed a counterclaim seeking a declaration that: (1) they

have a legal right to use the entire lake; (2) the plaintiffs have no right to

drain the water from the lake and reopen the quarry; (3) the plaintiffs be

required to restore the lake water level to that which prevailed when the

Mortvedts purchased their property in 1996; and (4) the plaintiffs have no

legal right to install or maintain a fence in the lake. The Mortvedts also
                                      4
sought reformation of their deed to conform it to the understanding of

the parties to the 1996 conveyance: that the Mortvedts’ east property line

extends to the lake water’s west edge. They also requested compensatory

damages for the loss of the trees removed by Stephen Orr from the narrow

strip of land claimed by both the Mortvedts and the Orrs.

      After a bench trial, the district court filed a decision declaring in

relevant part: (1) the parties are entitled to the exclusive possession, use

and enjoyment of the water covering the real estate described in their

respective deeds; (2) the parties own any minerals located on the real estate

described in their respective deeds; (3) the Mortvedts are prohibited, absent

express written permission, from entering upon or using the water

overlaying the properties owned by the Sevdes, the Orrs, and Cameron, who

are legally entitled to construct a fence, berm or other structure to mark the

boundaries of their properties; and (4) the Sevdes, the Orrs, and Cameron

are entitled to drain the water covering, mine minerals from, and restore

wetlands upon their properties.        The court denied the defendants’

counterclaim.
      The Mortvedts appeal, contending the district court erred in
concluding: (1) the lake is not “public water” as defined by Iowa Code

sections 455B.261(17) and 455B.262(3) (2003); (2) their deed should not be

reformed; and (3) they are not entitled to damages for the loss of the trees

destroyed by Stephen Orr.

      II.   Scope of Review.

      This case was filed and tried in equity.      Our review is de novo.

Breitbach v. Christenson, 541 N.W.2d 840, 843 (Iowa 1995).
                                      5
      III.   Discussion.

      A. Reformation of the Mortvedt Deed.

      The Mortvedts contend the district court erred in failing to reform

their deed to locate the boundary between their property (“Parcel C”) and

that of the Orrs (“Parcel B”) at the water’s edge on the west side of the lake.

As the parties seeking reformation, the Mortvedts introduced evidence and

requested a finding that their deed does not describe the intended boundary

line. See Kendall v. Lowther, 356 N.W.2d 181, 187 (Iowa 1984) (stating that

the party seeking reformation bears the burden of establishing by clear and

convincing evidence that a written instrument fails to reflect the contracting

parties’ intent).   The Mortvedts offered evidence tending to prove their

grantor intended the water’s edge on the west side of the lake would be the

eastern boundary of the property conveyed to the Mortvedts. This evidence

included the contract between the grantor-estate and the Mortvedts

describing the property to be conveyed as “[i]ncluding all land west and

north of [the] water.” The Mortvedts also offered the testimony of Loren

Twedt, a co-executor of the grantor-estate, and Eldon Boswell, a realtor for

the estate, who both affirmed such intent. The plaintiffs objected to the

Mortvedts’ offer of the real estate contract and the testimony of Mr. Boswell

and Mr. Twedt on the grounds that such evidence violated the parol

evidence rule and the statute of frauds.

      In its decision rejecting the Mortvedts’ prayer for reformation of their

deed, the district court concluded Boswell’s testimony and the real estate

contract violated both the parol evidence rule and the statute of frauds. The

court also concluded the remedy of reformation is not available to the

Mortvedts because the Orrs, whose property interest in the disputed strip of

land would be directly affected if the remedy were granted, were not parties

to the Mortvedts’ deed.
                                      6
      We need not address the Mortvedts’             contention    that   the

district court erred in its ruling on the parol evidence and statute of frauds

objections because the district court correctly concluded the remedy of

reformation is unavailable to the Mortvedts under the circumstances of this

case. We will only order reformation of a deed against a party to it, a person

in privity with a party, or a person with notice of the relevant facts. See

Burner v. Higman & Skinner Co., 133 Iowa 315, 316, 110 N.W. 580, 580

(1907). Reformation will not be ordered to the prejudice of innocent third

persons. 76 C.J.S. Reformation of Instruments § 54 (1994); see also Lee v.

Brown, 482 So. 2d 293, 297 (Ala. 1985) (declining to reform a deed to the

detriment of an adjoining landowner who was an innocent purchaser);

Statler v. Painter, 133 S.W.3d 425, 429 (Ark. Ct. App. 2003) (same); Schlenz

v. Dzierzynski, 481 N.E.2d 287, 290 (Ill. App. Ct. 1985) (same); Chandelle

Enters. LLC v. XLNT Dairy Farm, Inc., 699 N.W.2d 241, 247-48 (Wis. Ct. App.

2005) (same). Notwithstanding the Mortvedts’ assertions to the contrary, we

find the Orrs were innocent third parties as to the transaction between the

Twedt estate and the Mortvedts.
      Stumbo & Associates Land Co. was hired to prepare a survey when
the Mortvedts purchased their land from the Twedt estate in 1996. That

survey of Parcels B and C describes the real estate by metes and bounds

and denotes the boundary between the parcels as a straight line running

from essentially north to south, as shown on the illustration below:
                                      7




The legal description of Parcel C in the Mortvedts’ deed to Parcel C refers

expressly to the Stumbo survey.

      The Mortvedts contend, however, that the Stumbo survey put the

Orrs on inquiry notice of the Mortvedts’ claim that the boundary between

the two parcels is marked by the water’s edge rather than the straight, solid

boundary line shown on the survey. The Mortvedts support their position

by reference to a dotted line denominated by the surveyor as “edge of water”

and drawn on the survey adjacent to the straight, solid line to illustrate the

approximate location of the water’s edge on the west side of the lake.

Although the survey did note in this way the approximate location of the

water’s edge in relation to the east boundary line identified in the Mortvedts’

deed, we conclude the Orrs were not on inquiry notice of any mutual

mistake made by the grantor-estate and the Mortvedts in the deed’s

description of that boundary line.
                                      8
      A reasonably prudent person would interpret the survey as an

illustration of the boundary legally described in the Mortvedts’ deed and as

confirmation that the Mortvedts had not acquired from their grantor the

narrow strip of land on the west side of the lake that is the subject of this

dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and

survey would cause a prudent subsequent purchaser to further inquire into

the deeding parties’ intentions and to consequently discover any

discrepancy between those intentions and the legal description in the deed.

See Bedford v. Kravis, 622 So. 2d 291, 295 (Miss. 1993) (“[I]f in any . . .

deed or conveyance there is contained any recital sufficient to put a

reasonably prudent man on inquiry as to the sufficiency of the title, then he

is charged with notice of all those facts which could and would be disclosed

by a diligent and careful investigation.” (emphasis removed)); 76 C.J.S.

Reformation of Instruments § 58 (“[A] party is not an innocent purchaser if he

. . . was conscious of having the means [to discover a mutual mistake] and

did not use them as an ordinarily prudent and diligent person would have

done, or if there were circumstances sufficient to put him on inquiry [notice

of the deeding parties’ mistake].”); cf. Luker v. Moffett, 38 S.W.2d 1037,

1041-42 (Mo. 1931) (reforming a deed where a purchaser was on inquiry

notice of the boundary line). Indeed, contrary to the Mortvedts’ contention,

the survey and deed taken together would lead a reasonable person to

believe the Mortvedts’ east boundary did not extend to the water’s edge.

The surveyor’s notation of the “edge of water” provided express notice on the

face of the survey that the metes and bounds description of the property

purchased by the Mortvedts did not extend eastward to the edge of the

water. Because the Orrs were not on inquiry notice of the claimed mistake

in the legal description within the Mortvedts’ deed, they were innocent
                                       9
purchasers whose property interest in the narrow strip of land at issue in

this case cannot be compromised by reformation of the Mortvedts’ deed.

      Our resolution of this issue dictates that we must affirm the district

court’s determination that the Mortvedts have no claim for damages as a

consequence of Stephen Orr’s removal of trees from the narrow strip of land

on the west side of the lake.

      B. Ownership of the Lake Bed; Use and Control of the Lake Water.

      We next address the parties’ competing legal claims as to their rights

to access the surface waters of the lake for boating and fishing, to fence or

otherwise establish physical boundaries on the surface of the lake

demarcating their respective claims to ownership of parts of the lake bed,

and to drain the water from the lake. As we have noted, the district court

concluded the parties have a legal right to go upon and use only the water

overlaying the lake bed they own; and consequently, without the consent of

the other lake bed owners, the Mortvedts may not go upon or use the water

overlaying the plaintiffs’ property.
      The public generally has a right of access to navigable watercourses.

See State v. Sorensen, 436 N.W.2d 358, 361-63 (Iowa 1989) (concluding the
public trust doctrine requires the State to protect the public’s right to use

navigable watercourses). Accordingly, if the lake at issue in this case is

navigable, the plaintiffs have no right to exclude the Mortvedts from using

and enjoying any part of it. The determination of whether a watercourse

was navigable at common law depended on the presence or absence of the

tidal ebb and flow of water. McManus v. Carmichael, 3 Iowa 1, 3-6 (1856).

But the jurisprudence of this country has extended the definition of

“navigable” to refer to watercourses “susceptible of use for purposes of

commerce” or “possess[ing] a capacity for valuable floatage in the
                                       10
transportation to market of the             products of the country through

which it runs.” Monroe v. State, 175 P.2d 759, 761 (Utah 1946) (internal

quotation marks and citation omitted). “Navigable water has been likened

to a public highway,” McCauley v. Salmon, 234 Iowa 1020, 1022-23, 14

N.W.2d 715, 716 (1944), “used or usable as a broad highroad for

commerce.” Mountain Props., Inc., v. Tyler Hill Realty Corp., 767 A.2d 1096,

1100 (Pa. Super. Ct. 2001). The landlocked body of water which is the

subject of this case consists of only approximately thirty acres and has

never served as a highway of commerce. It has been used primarily for

recreational purposes and is clearly nonnavigable.
      The navigable or nonnavigable status of a watercourse generally

determines whether the bed of a watercourse is owned by the state or by

private parties. “In Iowa, the legal title to the beds of all navigable lakes to

the high-water mark is in the state in trust for the use and benefit of the

public.” State v. Nichols, 241 Iowa 952, 967, 44 N.W.2d 49, 57 (1950);

accord Peck v. Alfred Olsen Constr. Co., 216 Iowa 519, 529, 245 N.W. 131,

136 (1932) (noting the legal title to a navigable lake is in the state). But “[i]f

a body of water is nonnavigable, it is privately owned by those who own the
land beneath the water’s surface and the lands abutting it, and may be

regulated by them.” Mountain Props., Inc., 767 A.2d at 1099-1100. The

nonnavigable lake in this case is thus privately owned by the parties

because each of their deeds includes part of the lake bed.

      We have not previously been asked to decide the fighting issue

presented by the parties now before the court: Whether the owner of part of

the bed of a nonnavigable lake has the legal right to use and enjoy the

entire lake, or only that part covering the lake bed described in his deed?

The authorities on this issue are divided. The majority rule, often referred

to as the “common law rule,” dictates that one is entitled to exclusive use
                                            11
and enjoyment of that portion of the             nonnavigable lake covering the lake

bed one owns. Wehby v. Turpin, 710 So. 2d 1243, 1247 (Ala. 1998); Ace

Equip. Sales, Inc. v. Buccino, 869 A.2d 626, 634 (Conn. 2005); Anderson v.

Bell, 433 So. 2d 1202, 1204 (Fla. 1983); Lanier v. Ocean Pond Fishing Club,

Inc., 322 S.E.2d 494, 496 (Ga. 1984); Sanders v. De Rose, 191 N.E. 331,

333 (Ind. 1934); Black v. Williams, 417 So. 2d 911, 912 (Miss. 1982);

Mountain Props., Inc., 767 A.2d at 1099; Smoulter v. Boyd, 58 A. 144, 146-

47 (Pa. 1904); White’s Mill Colony, Inc. v. Williams, 609 S.E.2d 811, 818

(S.C. Ct. App. 2005); Wickouski v. Swift, 124 S.E.2d 892, 894 (Va. 1962);

Ours v. Grace Prop., Inc., 412 S.E.2d 490, 494 (W. Va. 1991).                             In

jurisdictions following the common law rule, owners of the lake bed may

fence off their lake bed to promote their exclusive use and enjoyment. The

common law rule thus conforms to the familiar legal maxim cujus est solum,

ejus est usque ad coelum et ad inferos—“[w]hoever owns the soil owns

everything up to the sky and down to the depths.”                     Nichols v. City of

Evansdale, 687 N.W.2d 562, 566 (Iowa 2004) (citing Black’s Law Dictionary

1712 (8th ed. 2004)).
       A lesser number of jurisdictions have adopted what has been
described as the “civil law rule.” 1 This rule holds that owners of any part of
a nonnavigable lake are entitled to reasonable use and enjoyment of the

entire surface of the lake, not merely that part covering the bed they own.

Duval v. Thomas, 114 So. 2d 791, 795 (Fla. 1959); Beacham v. Lake Zurich

Prop. Owners Ass’n, 526 N.E.2d 154, 157 (Ill. 1988); Beach v. Hayner, 173

       1One  scholar has noted that the rule commonly referred to as the “civil law rule”
was not derived from either the civil law tradition of post-Roman continental Europe or
ancient Rome, but rather from decisions of Scottish courts in the nineteenth century, and
that the “common law rule,” which pre-dates the English common law, actually originated
in Roman civil law. See Nicholas Harling, Non-navigable Lakes and the Right to Exclude: The
Common Misunderstanding of the Common Law Rule, 1 Charleston L. Rev. 157, 176-77
(2007). While we have no quarrel with the author’s historical analysis, we choose to refer to
the two rules by the names ascribed to them by other American courts.
                                     12
N.W. 487, 488-89 (Mich. 1919);            Snively v. Jaber, 296 P.2d 1015,

1019 (Wash. 1956).

      The Mortvedts contend our legislature has codified the civil law rule

in Iowa Code chapter 455B.         Iowa Code section 455B.262(3) (2003)

provides:

      Water occurring in a basin or watercourse, or other body of
      water of the state, is public water and public wealth of the
      people of the state and subject to use in accordance with this
      chapter, and the control and development and use of water for
      all beneficial purposes is vested in the state, which shall take
      measures to ensure the conservation and protection of the
      water resources of the state. These measures shall include the
      protection of specific surface and groundwater sources as
      necessary to ensure long-term availability in terms of quantity
      and quality to preserve the public health and welfare.

“Watercourse” is defined in the same chapter to include

      any lake . . . or other body of water or channel having definite
      banks and bed with visible evidence of the flow or occurrence
      of water, except lakes or ponds without outlet to which only
      one landowner is riparian.

Iowa Code § 455B.261(17). The Mortvedts assert the lake in this case fits

neatly within the definition of a watercourse. The body of water has several

riparian land owners, definite banks, and a bed. As it is filled with water at

all times, the lake must be said to have a “visible occurrence of water.” An

outlet located in the southwest corner of the lake allows water to escape and

flow toward a nearby creek if the volume of water should exceed the

capacity of the lake’s banks.

      We conclude the district court correctly rejected the Mortvedts’

contention. Chapter 455B expresses the State’s policy to protect lives and

property from floods and to promote the orderly development, wise use,

protection, and conservation of the State’s water resources.     The statute

does not expressly address the nature and extent of the property interests of

multiple owners of landlocked nonnavigable lakes. We are not persuaded
                                     13
that the legislature intended for         chapter   455B   to   prescribe   the

relative rights of multiple owners to use and enjoy landlocked privately

owned watercourses.

      In the absence of legislative direction on the issue, we must determine

whether the common law rule or the civil law rule should prevail in Iowa.

Advocates of the civil law rule claim it is to be preferred because it avoids

“the difficulties presented by attempts to establish and obey definite

property lines.” Beacham, 526 N.E.2d at 157. Where, as in the case now

before the court, multiple parties claim an ownership interest in an

unfenced lake, it may be difficult to discern precisely where the boundaries

of one’s property are located. The civil law rule avoids this problem by

granting the owner of part of a nonnavigable lake bed access to the entire

lake. The rule arguably “promotes rather than hinders the recreational use

and enjoyment of lakes.” Id. Perhaps more importantly, the civil law rule

discourages the placement of fences or other barriers along boundary lines

in the water that “frustrate the cooperative and mutually beneficial use” of

water resources, id., and arguably promotes the aesthetic enjoyment of

those who use them.
      Notwithstanding the notable positive features of the civil law rule,

however, we reject it and join the majority of jurisdictions that have adopted

the common law rule. The principal advantage of the rule we adopt today is

its consistency with prevailing norms of real estate ownership in this state.

The common law rule recognizes the legal significance of property

boundaries and protects the interests of owners when neighbors are

unwilling or unable to coexist cooperatively. Finally, we adopt the common

law rule as the default rule, realizing that the several owners of

nonnavigable lakes may bargain among themselves to adopt other mutually
                                      14
acceptable arrangements for the use        and mutual enjoyment of water

resources.

      IV.    Conclusion.

      The Mortvedts’ deed cannot be reformed under the circumstances of

this case. The district court correctly concluded: (1) the plaintiffs have the

legal right to exclude the Mortvedts from access to parts of the lake covering

the lake bed owned by the plaintiffs; (2) the plaintiffs are legally entitled to

drain and fence the water covering their respective properties and reopen

the quarry; and (3) the Mortvedts’ damage claim for the destruction of trees

on land owned by the Orrs is without merit.
      AFFIRMED.

      All justices concur except Cady, J., who dissents.
                                      15
     #140/04-1968, Orr v. Mortvedt

CADY, J. (dissenting).

      I respectfully dissent from the majority’s adoption of the common law

rule regarding littoral rights in nonnavigable waters in Iowa. The decision of

the majority is based largely on its allegiance to “one of the oldest rules of

property known to the law that the title of the owner of the soil extends, not

only downward to the center of the earth, but upward usque ad coelum.”

Hannabalson v. Sessions, 116 Iowa 457, 461, 90 N.W. 93, 95 (1902). The

“logical extension” of this rule leads one to conclude “[a]n owner ‘is entitled

to exclusive dominion over his land, including the areas above and below its

surface.’ ” Andrea B. Carroll, Examining a Comparative Law Myth: Two

Hundred Years of Riparian Misconception, 80 Tul. L. Rev. 901, 907 (2006)

(citation omitted) [hereinafter Carroll]. Indeed, the logical extension of the

rule in this case leads the majority to conclude lake bed owners of

nonnavigable lakes have absolute ownership in the waters above their

lands. But such an extension is not justified because it is based on the

anachronistic rule that our property rights “ ‘extend from heaven to hell.’ ”

Id. (citation omitted). The march of time, the evolution of society, and the

inherent differences between land, water, and air clearly demonstrate they

do not. The majority’s adoption of what is called the “common law rule”

only furthers this antiquated abstraction. See id. at 940 (suggesting the

common law rule should be called “the Roman rule,” “traditional rule” or

“exclusive dominion” rule instead).

      Moreover, the application of such a rule to Iowa today is

unreasonable. As the majority recognizes, the rule presents difficulties in

“attempt[ing] to establish and obey definite property lines,” and leads to

“impractical consequences,” such as the “erection of booms, fences, or

barriers.” Beacham v. Lake Zurich Prop. Owners Ass’n, 526 N.E.2d 154,
                                       16
231–32 (Ill. 1988).        The Scots        recognized and solved this problem

long ago. See Carroll, 80 Tul. L. Rev. at 927 (“[T]he rule of free access to the

surface of nonnavigable lakes has its genesis nowhere but in the Scottish

legal system, and that it was born out of the Scots’ desire to simplify the

problems of boundary demarcation and enforcement on those water

bodies.”). Their solution was embodied in what could be called the “free

access” rule, or what the majority calls the “civil law rule.” See id. at 940

(suggesting the civil law rule should be called the “Scottish rule,” the

“modern rule,” or the “free access” rule). The reasonableness of the free

access rule is readily apparent—even to the majority. The majority correctly

recognizes it “promotes rather than hinders the recreational use and

enjoyment of lakes.” Beacham, 526 N.E.2d at 232. In addition, vis à vis the

exclusive dominion rule, it has several recognized advantages:
(1) the [exclusive dominion] rule is too difficult to follow with regard to lakes;

(2) there can be no private ownership in the waters or in the fish of a

nonnavigable lake and, thus, use of the surface should be open to all

riparian landowners, (3) common use of the surface of nonnavigable lakes is

customary; [and] (4) economic policy requires the adoption of the [free
access rule].

Carroll, 80 Tul. L. Rev. at 910 (footnotes omitted).

      Nevertheless, the majority adopts the exclusive dominion rule. It

reasons that the principle is the “majority” rule, that owners could modify

the rule by private agreement, and that it comports with the property norms

in this state. In my view, these arguments are unpersuasive. First, the

traditional rule is definitely not, when put into context, the “majority” rule.

See Nicholas Harling, Non-Navigable Lakes & the Right to Exclude: The

Common Misunderstanding of the Common Law Rule, 1 Charleston L. Rev.

157, 170 & n.88, 183 (recognizing most courts have adopted the common
                                     17
law rule, but that because “many          other[] [courts] have been unduly

influenced by the common law rule’s historic mislabeling and a mistaken

belief that their decision places the state’s law squarely within the common

law tradition . . . no true majority rule exists in America”). Second, the

parties in this case clearly demonstrate that a private agreement between

them is nearly impossible so that when cases like this arise there really is

no other choice.

Finally, if the exclusive dominion rule is consistent with our prevailing

norms regarding real estate ownership, it is only because it is based on an

antiquated concept that fails to consider the nature of the property in this

case. The rule finds no support from those perhaps most familiar with

littoral rights. See Carroll, 80 Tul. L. Rev. at 919–27 (explaining the Scots’

adoption of a free access rule regarding Scottish lochs); Johnson v. Seifert,

100 N.W.2d 689, 696–97 (Minn. 1960) (adopting the free access rule for the

“land of a thousand lakes,” but also noting that it would not apply to “[a]

minor body of water which by its nature and character reasonably has no

overall utility common to two or more abutting owners”). It also fails to

recognize the distinction between water and land. See Carroll, 80 Tul. L.

Rev. at 910 & n.50 (explaining why the “common law rule is too difficult to

follow with regard to lakes”).

Perhaps most importantly, the free access rule is not detrimental to

prevailing norms.    See Eric T. Freyfogle, The Particulars of Owning, 25

Ecology L.Q. 574, 585 (1999) (“This trend of tailoring rights to the land

poses little real threat to the core values of property. Once people see what

is going on, once they realize that property rights now depend in part on the

land itself, expectations can be adjusted and life can go on, with as much

economic growth, personal privacy, and civic harmony as ever before.”)

[hereinafter Freyfogle]. In fact, I do not believe a free access rule would
                                      18
necessarily    limit   the   existing      property rights of lake bed owners,

such as the Orrs in this case. The free access rule simply “permits a

riparian landowner ‘to use the surface of the entire lake for fishing, boating,

and bathing as long as he does not unduly interfere with the rights of the

other [riparian landowner] proprietors.’ ” Carroll, 80 Tul. L. Rev. at 909–10

(quoting James W. Cullis, Note, Extent of Private Rights in Nonnavigable

Lakes, 5 U. Fla. L. Rev. 166, 176 (1952)).

      Property law is not set in stone, but depends “entirely on the law of

the nation” where the property is located. Johnson & Graham’s Lessee v.

M’Intosh, 21 U.S. 543, 572, 5 L. Ed. 681, 688 (1823).           It is perhaps

noteworthy that Illinois and Minnesota, apparently Iowa’s only two border

states that have considered the issue, have adopted the free access rule.

See Beacham, 526 N.E.2d at 157; Johnson, 100 N.W.2d at 696–97.

Moreover, in light of the benefits of the free access rule, it is not too much

for our law to require lake bed owners to permit the reasonable use of

surface water by other lake bed owners. This approach best reflects our

modern values of free use and enjoyment of lakes and streams in Iowa and

still protects the rights and ownership of lake bed owners by only permitting

others to use the surface water in a reasonable manner, and not

terminating any rights a lake bed owner has in the land.

      I do not know how many Iowans share the shores of nonnavigable

lakes around the state so as to be affected by the holding in this case, but I

suspect there are many. In each instance, the inflexible rule adopted by the

majority could leave unwanted consequences. For example, it will permit

lake bed owners to build fences into the lake to mark boundary lines. It will

also give rise to claims of trespass for operating boats in waters over land

owned by another or for merely “casting a fishing line into water” over land

owned by another. Carroll, 80 Tul. L. Rev. at 908. We, of course, know of
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the uncivilized conduct exhibited by      the property owners in this case.

This is not the Iowa our laws should create.

      While the majority rule toasts the rugged and proud American spirit

of individualism and self-determination commonly tied to land ownership,

see Freyfogle, 25 Ecology L.Q. at 574 (“Among the peculiar traits of the

United States is its pronounced preoccupation with individual rights and its

tendency to discuss social problems in individual terms.”), these notions are

largely illusory when applied to lakes. The same self-control given to one

landowner is also enjoyed by the other landowners around the lake.

Without a shared, community approach and understanding, any single lake

bed owner can disrupt or destroy the common aspirations of living on a lake

for everyone else by exercising their individualism over the portion of the

lake they control. When individual control over a portion of the lake is the

desired goal, no person can share in the common attributes of life on the

lake. The better rule is a community approach to littoral rights, which the

free access rule accomplishes without diminishing our individual property

rights. See id. at 588 (“From water law there is the sensible [free access]

rule governing the surface use of nonnavigable lakes; in that case, too,

individual property rights are mingled and shared, without diminishing

their value.”). When we deal with our world’s resources, that is the best, if

not the only, policy to follow.

      The policy behind the free access rule best reflects life in Iowa in the

twenty-first century. Rigid property rights of the past centuries should give

way to the simple and fair solution of boundary disputes offered by the

better reasoned free access rule. Our laws pertaining to land, air, and water

must begin to reflect that we coexist on Earth as one.
