Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appellants.

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Lake Minnetonka Conservation District, Respondent, vs. Miles B. Canning, et al., Appellants. A05-1811, Court of Appeals Unpublished, June 27, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).







Lake Minnetonka

Conservation District,





Miles B. Canning, et al.,




Filed June 27, 2006

Reversed and remanded
Klaphake, Judge


Hennepin County District Court

File No. 05-1854



George C. Hoff, Justin L. Templin, Hoff, Barry & Kuderer, P.A., 160 Flagship Corporate Center, 775 Prairie Center Drive, Eden Prairie, MN  55344-7319 (for respondent)


Thomas J. Radio, Hinshaw & Culbertson LLP, 3100 Campbell Mithun Tower, 222 South Ninth Street, Minneapolis, MN  55402 (for appellants)


            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants Miles and Pamela Canning challenge the district court's grant of summary judgment to respondent Lake Minnetonka Conservation District (LMCD).  The LMCD brought this enforcement action seeking an injunction to require appellants to remove their dock, which does not meet LMCD regulations.

            Appellants argue:  (1) the LMCD lacks authority to regulate the location or configuration of their private, noncommercial dock; (2) they have riparian rights to access the lake via their dock that cannot be eliminated without payment of just compensation; (3) their dock is a legal non-conforming use that cannot be removed by the LMCD absent use of eminent domain and the payment of fair compensation; and (4) the LMCD ordinances are an unconstitutional delegation of power because they allow neighboring landowners to withdraw consent to private docks.  Because appellants have riparian rights to access navigable waters of the lake and because the position taken by the LMCD may interfere with those rights, we reverse and remand for further proceedings.


            Appellants own approximately 12 feet of lakeshore on Lake Minnetonka.  It is undisputed that there has been a dock located on the property since the early 1930s, and appellants have maintained a dock and moored a boat there since they purchased the property in 1990.  It is also undisputed that the dock fails to meet current LMCD regulations because it is outside appellants' authorized dock use area, which is a small triangular area as drawn by extension of the converging side lot lines into the lake, and because the extremely narrow width of the property makes it nearly impossible to meet the five-foot side setback requirements.

            In July 2000, appellants applied for a variance from the side setback and authorized dock use area regulations to allow them to continue to maintain their dock and moor their boat there.  Appellants decided to withdraw their application after the LMCD voted to delay a decision and referred the matter to staff.

            In August 2003, one of appellants' neighbors e-mailed the LMCD and requested that it enforce its regulations against appellants' dock.  LMCD representatives met with appellants and discussed several options, including applying for a variance; combining appellants' shoreline with the two abutting properties to the west and installing one dock; or securing mutual consent from appellants' neighbors to install a dock and store a boat outside the authorized dock use area, which could be revoked by either neighbor at any time.

            In November 2003, appellants renewed their request for a variance.  The LMCD discussed appellants' application at several meetings and appointed one of its members to work on a compromise with appellants and their neighbors.  At the LMCD's March 2004 meeting, this board member outlined three options for the board to consider.  While appellants and their neighbors could not agree on any one option, they all appeared willing to compromise.  Nevertheless, several board members expressed concerns about the extremely narrow width of appellants' lakeshore, the public safety issues associated with granting a variance to allow for no side setbacks, and the possible undesired precedent of granting a variance to allow continued historical dock usage.  The board voted to deny appellants' variance and directed its attorney to prepare proposed findings.  Two days later, however, appellants withdrew their variance application.

            Appellants continued to use their existing dock.  In October 2004, the LMCD brought this action seeking compliance with its regulations and injunctive relief against appellants. 

            In granting summary judgment to the LMCD, the district court determined that "[e]nforcing the ordinances in this case is appropriate and does not result in the taking of [appellants'] property without compensation."


            Appellants argue that they have riparian property rights that cannot be eliminated through LMCD regulation.  They insist that they have the right to maintain a dock to the point of navigability.  They further insist that enforcement of the ordinance in this case impermissibly impedes their right because the extension of their converging side lot lines into the lake does not allow them to maintain a dock to the point of navigability.  Appellants finally complain that the LMCD has not shown how its regulations serve the public right of navigability as opposed to serving the private rights of appellants' abutting neighbors.

            The owner of riparian land enjoys the right of exclusive access to water that is directly in front of his or her waterfront property, and "title extends to the low-water mark."  State, by Head v. Slotness, 289 Minn. 485, 487, 185 N.W.2d 530, 532 (1971).  Riparian rights include the right to build and maintain suitable "wharves, piers, landings, and docks on and in front of" riparian land to the point of navigability.  Id.; State v. Korrer, 127 Minn. 60, 71-72, 148 N.W. 617, 622 (1914).  A riparian owner "has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners."  Johnson v. Seifert, 257 Minn. 159, 169, 100 N.W.2d 689, 697 (1960).

            In order to determine the extent of riparian rights, riparian boundaries must be ascertained.  Minnesota case law does not endorse a specific method for drawing riparian boundaries, although a method is described in Edward S. Bade, Title, Points & Lines in Lakes & Streams, 24 Minn. L. Rev. 305, 306-07 (1940).  Bade rejects a "rule of straight projection" to arrive at riparian rights and suggests a more proportionate method based on the shape of the lake.  Id. at 341.  While no single method applies in every case, what remains important is that the boundaries are drawn in a fair and equitable manner.  See, e.g., Rooney v. Stearns County Bd., 130 Minn. 176, 180-81, 153 N.W. 858, 860 (1915); Scheifert v. Briegel, 90 Minn. 125, 133, 96 N.W. 44, 48 (1903).

            The method adopted here by LMCD regulations for defining the authorized dock usage area was firmly criticized by Bade in his article as being fraught with inequity.  Bade at 331-34.  And the LMCD's strict application of its regulations to appellants' property and reluctance to consider the equities involved appear to have seriously compromised appellants' riparian rights.  Because genuine issues of material fact exist regarding the extent of appellants' riparian rights, we conclude that the district court erred in granting summary judgment to the LMCD.  See Minn. R. Civ. P. 56.02.

            While the LMCD may place some reasonable restrictions on the size and location of appellants' dock and boat, appellants are correct in arguing that LMCD regulations cannot so restrict their riparian rights as to deny them access to the navigable waters of the lake.  Under LMCD regulations, extension of the side lot lines of appellants' abutting neighbors appears to cut off appellants' reasonable access to navigable water.  We therefore reverse the district court's grant of summary judgment to the LMCD and remand for further proceedings.  On remand, the district court should determine the extent of appellants' riparian rights subject to reasonable enforcement of LMCD regulations against appellants' property in a manner that is fair and equitable, while still addressing public safety concerns.  See State v. Kuluvar, 266 Minn. 408, 418, 123 N.W.2d 699, 706 (1963) (riparian rights are "subordinate to the rights of the public and subject to reasonable control and regulation by the state"); Johnson, 257 Minn. at 165 n.5, 100 N.W.2d at 694 n.5 (riparian rights are subject to state regulation for public purposes).    

            Finally, we make the following comments in the interests of justice.  First, the LMCD has authority to regulate private docks on Lake Minnetonka for the benefit of the public and navigation.  See Minn. Stat. § 103B.611, subd. 3(6) (2004) (stating that LMCD has authority to "regulate the construction, installation, and maintenance of permanent and temporary docks and moorings"); City of Birchwood Village v. Simes, 576 N.W.2d 458, 462 (Minn. App. 1998) (statute creating White Bear Lake Conservation District, which is substantially similar to statute creating LMCD, "represents an effort by the local municipalities to cede authority to the board to regulate all manner of activities affecting the lake," including size of boats that may be moored to private docks).  Second, because riparian rights are always subject to state regulation in the public interest, a landowner's preexisting and continuing use of his or her lakeshore property is not a lawful non-conforming use if the LMCD finds other factors, such as public safety, more important.  See Bartell v. State, 284 N.W.2d 834, 838 (Minn. 1979).  Finally, because we have determined that application of LMCD regulations to appellants' property has caused the potential loss of their riparian rights, we need not decide whether those regulations are also unconstitutional because they allow the LMCD to delegate its authority to neighboring landowners.

            Reversed and remanded.

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