Marsh v. McNider

Robinson, C. J. Clara E. Doud is the owner of that part of a certain tract of land which is west of the center of a stream of water which flows across it. That stream is about eight rods in width, is not. navigable, and is known as “Lime Creek.” Mrs. Doud made to the plaintiff a bill of sale of the ice which should be formed in her part of the stream during the winter which commenced in the year 1890. When Mrs. Doud purchased the land, in June of that year, it was occupied by S. M. Eulghum, as subtenant, under a lease which gave him the right to the free and uninterrupted occupation thereof until April, 1891, and the title acquired by the purchase was subject to-his rights under the lease. He sold to the defendants the ice which was included in the bill of sale to the plaintiff, and, after the ice was formed, they cut and removed portions of it for their own uses. The plaintiff contends that the ice was real estate, a part of the land owned by Mrs. Doud; therefore, that the lease gave to the tenant no right to remove it; and that the bill of sale transferred the ownership of it to the plaintiff. [395] It is well settled that, under some conditions, water and ice are to be regarded as real estate, belonging to the owner of the land which is beneath it. See State v. Pottmeyer, 33 Ind. 402, and cases therein cited; 9 Am. & Eng. Encyclopedia of Law, 853. And, when that is the case, the landowner or his assign has the exclusive right to gather and dispose of the ice for his own benefit, subject to the rights of other riparian owners. See Bigelow v. Shaw, 65 Mich. 341, 32 N. W. Rep. 800, and cases therein cited. In this state the owner of land has the right to use so much of the water of a stream flowing over it as is necessary to supply what are termed his “natural wants.” Spence v. McDonough, 77 Iowa, 461; Ferguson v. Firmenich Manufacturing Co., 77 Iowa, 576. Where he does not own the soil under the stream, as where it is meandered, and his ownership does not include its bed, he has no exclusive right to the ice which forms in it. Serrin v. Grefe, 67 Iowa, 197. In such cases, whoever has lawful access to the stream may use the water and the ice which forms therein in such manner as does not interfere with the rights of the riparian owners. Brown v. Cunningham, 82 Iowa, 515. Whether the ice which forms in a running stream is to be regarded technically as a part of the land over which it is formed or to which it is attached is a question we do not find it necessary to determine. It is water congealed, and, although more readily secured and controlled for many purposes than water, it is in most respects" subject to the rules which govern the rights of the riparian proprietor to the water. Ice may be attached to his land, but it was not produced by the land, drew nothing from it, and will give nothing to it. It is transient by nature, and will soon disappear, unless prevented by the labor of man. It is a product of the changing seasons, which the occupier of the soil may use as he might have used the water from which [396] it was formed. If he own the land under it, he-may-use the ice as he might have used the water, to supply his natural wants, and for other purposes, so far as he can do so without affecting the rights of others, as of loyrer owners on the same stream. Such use appertains to the land, and belongs to him who has the right to possess and use’it. In this case that right was conferred upon Dulghum, by virtue of the lease. It is said that his lease was for ordinary farming purposes only, but, if that were true, he would have had the right to use so much of the water and ice as he required for such purposes. The lease, however, does not restrict the tenant to the use of the premises for agricultural purposes only,'but gives him the right to the “free and uninterrupted occupation thereof,” and necessarily the right to use them and their appurtenances. Nothing was reserved, excepting timber not required for repairing fences. The leased premises included one-half of the bed of the stream, and such rights as the owner had in the stream itself. He retained no right to enter ■upon the premises to gather ice, and his grantee acquired none as against the tenant. We are of the -opinion that the lease gave to the tenant the right to -cut and remove the ice in question, and find- that such right was assigned to the defendant^. The judgment of the district court is affirmed.