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Show MINNESOTA 413 1959." No doubt this section was intended to preserve certain riparian rights in actual use and existing at the effective date of the act. There is some doubt, however, whether these exceptions can be limited to riparian and littoral rights in actual use at that time, because an early Minnesota case adopted the rule that riparian rights are not lost by nonuse.80 Most commentators seem to have viewed the Minnesota act as extinguishing unused riparian privileges as a matter of statutory construction,31 but at least one local water expert has suggested the opposite interpretation.82 If he is correct, the effectiveness of the statute will be considerably diminished. The Minnesota Supreme Court has also qualified the effect of sec- tion 105.41. It will be remember that subdivision (1) of section 105.38, discussed above, provides that those waters "which are capable of substantial beneficial public use" are "public waters" subject to State control; and this view seems to be contained in section 105.41, dealing with permits. In Stevens v. /State,33 the court held that a por- tion of a lake which varied in depth from 0.9 feet to 1.9 feet and which was useful for hunting but not for swimming or fishing was not "capable of substantial beneficial public use," and was not a public water. Therefore, a permit to drain the area was not required. In addition to permits for appropriating, or using surface or ground water, section 105.42 requires a permit from the commissioner in order to construct, reconstruct, remove, or abandon or make any change in any reservoir, dam, or waterway obstruction on any public water. The section further provides that a permit shall be required to "change or diminish the course, current or cross section of any public waters." A later section makes any violation of the provisions of the act a misdemeanor.34 The constitutionality of the permit statute came before the State supreme court in State v. Kuhtvar,35 which involved a criminal pros- ecution for failure to secure a permit before altering the course, cur- rent, or cross section of the water in a bay. It was charged that defendant's dredging and filling activities, without a permit, consti- tuted such an alteration. One defense was that the statute deprived the defendant, as a riparian owner, of his right to engage in these activities. In upholding the constitutionality of the statute, the court said that the State, as an incident of its sovereignty, has a proprietary interest in all "public waters" of the State. This proprietary interest is held in trust for all the public and is paramount to the rights of any private riparian owner:36 To permit such owners to interfere with the natural rights of the public to fish, hunt, swim, navigate, or otherwise enjoy such waters would result in subordinating public rights to private rights and in abdicating the state's trust over an incomparable natural resource. 3° Reeves v. Backus-Brooks Co., 83 Minn. 339, 86 N.W. 337 (1901). 31 See e.g., J. Sax, Water Law, Planning & Policy, 211 (1968). 88 R. Halk, Ground Waters Divided Into Two Classes-Definite Streams, Percolating, 33 Hennepin Lawyer 133, 138 (1965). Mr. Haik at the time was president of the water pollution control advisory board. 83 190 N.W. 2d 482 (Minn. 1971). See also State v. Kuluvar, 266 Minn. 408, 123 N.W. 2d 699,706 (1963). 84 At the time of the Kuluvar case, any violation of the permit statute was a gross misdemeanor. This was changed to a simple misdemeanor in 1965, largely no doubt as a reaction to the extraordinary sentence in the trial court; $400 plus 4 months in jail. 85 Supra note 33. 86 State v. Kuluvar, supra note 33, at 706. |