Gambar halaman

- exteni of public rights,

latter line, and when they extend to 10. When the waters of an inland the ordinary high-water mark, the navigable meandered lake recede to rights of the public are extended aclow-water mark, the public has the cordingly. privilege to use the water up to the

APPEAL by defendant from an order of the county court for Winnebago County (Beglinger, J.) sustaining a demurrer to the answer in an action brought to recover damages for trespass on and injury to plaintiff's property. Affirmed. Statement by Doerfler, J.:

L.R.A. 305, 76 N. W. 273; Illinois Steel This is an appeal by the defendant Co. v. Bilot, 109 Wis. 418, 83 Am. St. from an order of the county court Rep. 905, 84 N. W. 855, 85 N. W. 402; of Winnebago County, Honorable Wright v. Day, 33 Wis. 260; Ne-peeFred Beglinger, judge, sustaining

nauk Club v. Wilson, 96 Wis. 290, 71

N. W. 661; Mendota Club v. Andersen, plaintiff's demurrer to defendant's

101 Wis. 479, 78 N. W. 185; Re Tremanswer.

pealeau Drainage Dist. 146 Wis. 398, Plaintiff alleges in his complaint 131 N. W. 838; Diana Shooting Club that he is the owner of lot 5 in sec- v. Husting, 156 Wis. 261, 145 N. W. tion 7, town 18, range 17, in Winne- 816, Ann. Cas. 1915C, 1148; Polebitzke bago county; that said land abuts on v. John Week Lumber Co. 163 Wis. Lake Winnebago, and has for many

322, 158 N. W. 62. years been used for pasturage pur

A riparian owner upon navigable poses. It is further alleged that the

waters takes title only to ordinary

high-water mark. defendant trespassed upon these

Shively v. Bowlby, supra; Barnes v. lands, to the plaintiff's damage, etc. Midland R. Terminal Co. 193 N. Y. 378,

The defendant in his answer al- 127 Am. St. Rep. 962, 85 N. E. 1093; leges that he entered and traveled Callahan v. Price, 26 Idaho, 745, 146 upon that portion of the shore lying Pac. 732; State v. Portland General between the ordinary high and low Electric Co. 52 Or. 502, 95 Pac. 722, water marks of said lake; that said

98 Pac. 160; Grey ex rel. Simmons v. lake is a public navigable lake in

Paterson, 60 N. J. Eq. 385, 48 L.R.A. this state, and that the defendant

717, 83 Am. St. Rep. 642, 45 Atl. 995;

McManus v. Carmichael, 3 Iowa, 1; had a lawful right to enter and trav

Ferry Pass Inspectors' & Shippers' el upon such strip of land without

Asso. v. Whites River Inspectors' & being guilty of a trespass or of vio- Shippers' Asso. 57 Fla. 399, 22 L.R.A. lating any of plaintiff's rights in the (N.S.) 345, 48 So. 643; Broward v. premises. To the defendant's an- Mabry, 58 Fla. 398, 50 So. 826; Brickell swer plaintiff interposed a general v. Trammel, 77 Fla. 544, 82 So. 221; demurrer, upon the grounds that the Tomlin v. Dubuque, B. & M. River R. answer did not state facts sufficient

Co. 32 Iowa, 106, 7 Am. Rep. 176; C. to constitute a defense.

M. Johnson Sand & Gravel Co. v.

The trial court sustained the demurrer, and

Quarles, 121 Ark. 601, 182 S. W. 283;

Newell v. Loeb, 77 Wash. 182, 137 Pac. defendant has appealed from such

811; Micelli v. Andrus, 61 Or. 78, 120 ruling.

Pac. 737; Eagle Cliff Fishing Co. v. Messrs. Williams & Williams, for

McGowan, 70 Or. 1, 137 Pac. 766; appellant:

Nirdlinger v. Stevens, 262 Fed. 591, The land under the waters of Lake

affirmed in 273 Fed. 1022; United Winnebago and up to the ordinary

States ex rel. Koehler v. McGlinch, 5 high-water mark is owned by the state

Alaska, 4; Aquino v. Riegelman, 104 of Wisconsin, and held in trust for all

Misc. 228, 171 N. Y. Supp. 716; Johnof the people for their use for all law

son v. May, 189 App. Div. 196, 178 N. ful purposes of navigation, fishing,

Y. Supp. 742. hunting, recreation, travel, and any

It is the intention of the court to other lawful public purpose.

preserve to the public all possible Shively v. Bowlby, 152 U. S. 1, 38 L. rights which the public may have in ed. 331, 14 Sup. Ct. Rep. 548; Willow the navigable waters of the state, not River Club v. Wade, 100 Wis. 86, 42 only as to the portion of such bodies


(180 Wis. 225, 193 N. W. 393.) actually covered by water, but also as note 2; Gould, Waters, $ 203; 2 Farnto the portion of the land and shore ham, Waters, p. 1462. between ordinary high-water mark The rights of the riparian owner and the water's edge.

are substantially the same whether he Barnes v. Midland R. Terminal Co. owns the subaqueous lands or not. 193 N. Y. 378, 127 Am. St. Rep. 962, Delaplaine v. Chicago & N. W. R. Co. 85 N. E. 1093; Johnson v. May, supra; 42 Wis. 214, 24 Am. Rep. 386; DiedBrickell v. Trammel, 77 Fla. 544, 82 So. rich v. Northwestern Union R. Co. 42 221; Ferry Pass Inspectors' & Ship- Wis. 248, 24 Am. Rep. 399. pers' Asso. v. Whites River Inspector's The rights of the riparian owner & Shippers' Asso. 57 Fla. 399, 22 rest not so much on his title or want L.R.A. (N.S.) 345, 48 So. 643; Broward of title to the bed of the lake, as on v. Mabry, 58 Fla. 398, 50 So. 826; Wil- his title to the bank. low River Club v. Wade, 100 Wis. 86, Diedrich v. Northwestern Union R. 42 L.R.A, 305, 76 N. W. 273; Diana Co.


Slauson Goodrich Shooting Club v. Husting, 156 Wis. Transp. Co. 94 Wis. 642, 69 N. W. 990; 261, 145 N. W. 816, Ann. Cas. 1915C, McLennan v. Prentice, 85 Wis. 444, 55 1148.

N. W. 764. Messrs. Hooper & Hooper, for re- The riparian owner has the excluspondent:

sive right to build appliances for conA riparian farmer on Lake Winne- venience of navigation out to navibago has the right to exclude the pub- gable water. lic from intrusion upon his farm lands Northern Pine Land Co. v. Bigelow, between high and low water mark on 84 Wis. 157, 21 L.R.A. 776, 54 N. W. the lake shore.

496; McLennan v. Prentice, 85 Wis. Mariner v. Schulte, 13 Wis. 692; 427, 55 N. W. 764; Williams v. Lane, Diedrich v. Northwestern Union R. Co. 87 Wis. 152, 58 N. W. 77; Thomas v. 42 Wis. 248, 24 Am. Rep. 399; Slauson Ashland, S. & I. River Logging R. Co. v. Goodrich Transp. Co. 94 Wis. 642, 122 Wis. 519, 106 Am. St. Rep. 1000, 69 N. W. 990; McLennan v. Prentice, 100 N. W. 993; Madison v. Mayers, 97 85 Wis. 427, 55 N. W. 764; Priewe v. Wis. 399, 40 L.R.A. 635, 65 Am. St. Wisconsin State Land & Improv. Co. Rep. 127, 73 N. W. 43; Boorman v. Sun93 Wis. 534, 33 L.R.A. 645, 67 N. W. nuchs, 42 Wis. 233; Roberts v. Rust, 918; Menominee River Lumber Co. v, 104 Wis, 619, 80 N. W. 914; McCarthy Seidl, 149 Wis. 316, 135 N. W. 854; v. Murphy, 119 Wis. 159, 100 Am. St. Champlain & St. L. R. Co. v. Valentine, Rep. 876, 96 N. W. 531. 19 Barb. 484; McBurney v. Young, 67

Messrs. Herman L. Ekern, Attorney Vt. 574, 29 L.R.A. 539, 32 Atl. 492;

General, and Franklin E. Bump, AsAustin v. Rutland R. Co. 45 Vt. 215;

sistant Attorney General for the State. Jakeway v. Barrett, 38 Vt. 316; Fletch

Messrs. John F. Kluwin and John er v. Phelps, 28 Vt. 257; Mayhew v.

C. Thompson, amici curiæ. Norton, 17 Pick. 357, 28 Am. Dec. 300; Doerfler, J., delivered the opinion Jackson v. Boston & W. R. Corp. 1 Cush.

of the court: 575; Hardin v. Jordan, 140 U. S. 371,

The only question involved in this 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Wheeler v. Spinola, 54 N. Y. 377; Ca

appeal is whether a member of the nal Comrs. v. People, 5 Wend. 423;

public can legally enter upon and Waterman v. Johnson, 13 Pick. 261; use for the purposes of public travel Paine v. Woods, 108 Mass. 160; Wood that strip of land adjacent to plainv. Kelley, 30 Me. 47; Stevens v. King,

tiff's upland, and lying between the 76 Me. 197, 49 Am. Rep. 609; Carli v. ordinary high and low water marks, Stillwater Street R. & Transfer Co. 28 and constituting what is ordinarily Minn. 373, 41 Am. Rep. 290, 10 N. W. known as the shore, without com205; Lincoln v. Davis, 53 Mich. 375, mitting trespass. It appearing that, 51 Am. Rep. 116, 19 N. W. 103; Union the public interests may be involved Depot, Street R. & Transfer Co. v.

in this litigation, the attorney genBrunswick, 31 Minn. 297, 47 Am. Rep. 789, 17 N. W. 626; Flisrand v. Madson,

eral was permitted to intervene

and file a brief and participate in 35 S. D. 457, 152 N. W. 796; State ex rel. Clark v. Deisch, 38 S. D. 560, 162

the argument before this court. N. W. 365; Hardin v. Jordan, 16 Fed.

Plaintiff is a riparian owner of 823; 1 Kinney, Irrig. p. 937, § 542, lands abutting on Lake Winnebago,

and he contends, among other in substantially the same language, things, that his grant of land to the has been incorporated into our Conlake extends his title to what is stitution, and forms a part of what known as the ordinary low-wate? is known as $ 1, art. 9, thereof. mark, or, if it should be held that In Illinois C. R. Co. v. Illinois, 146 his title stops at what is known U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. as the ordinary high-water mark, Rep. 110, the Supreme Court of the nevertheless, by reason of being United States, in an opinion rena riparian owner, he is possessed dered by Justice Field, decided that of the exclusive right of the use all lands under navigable waters of the shore between ordinary high which

which were formerly within the and low water marks, and that public domain vested in the state for any entry thereon by a stran- public purposes, and that the term ger, in either event, for the purposes navigable waters" means waters aforesaid, constitutes a trespass, or navigable in fact; that to them the a violation or infringement of his common-law principles relating to riparian rights. On the other hand, tidal waters and the title to land unthe defendant and the state contend der the same apply to the fullest exthat plaintiff's title stops at the ordi- tent. The doctrine so announced in nary high-water mark, and that the the Illinois C. R. Co. Case has subtitle of the land constituting the stantially been declared by this shore between such ordinary high court in the case of Illinois Steel and low water marks is held in trust Co. v. Bilot, 109 Wis. 418, 425, 83 by the state for the benefit of the Am. St. Rep. 905, 84 N. W. 855, 85 public, and further, that, if it should N. W. 402, and in Diedrich v. Northbe held that plaintiff has a qualified western Union R. Co. 42 Wis. 248, title to the strip in question, such 24 Am. Rep. 399. strip is subject to a public easement In the Bilot Case it was also held in the interests of the public, not that the United States never had only for the purposes of navigation title to the beds of lakes in the saand the incidents thereto, but for the called “Northwest Territory,” out of purposes of public travel and public which Wisconsin was carved, exceptpurposes generally.

ing only in trust for public purposes, The precise question involved and that the state, upon its admisherein has never come before this sion to the Union, had conveyed to court for decision, although it may it the title so held by the United be said that the rights of riparian States, and ever since has mainowners similarly situated have been tained and held such title solely for declared in numerous adjudications such trust purposes, and that any of this court in such a manner as to conveyance in violation of such trust constitute a fixed rule of property. is necessarily void. McLennan v.

By the Ordinance of 1787, passed Prentice, 85 Wis. 427, 55 N. W. for the government of the territory 764; Priewe v. Wisconsin State of the United States northwest of Land & Improv. Co. 93 Wis. 534, 33 the Ohio river, it is provided (art. L.R.A. 645, 67 N. W. 918; Ne-pee4) that “the navigable waters lead- nauk Club v. Wilson, 96 Wis. 290, ing into the Mississippi and St. Law- 71 N. W. 661 ; Willow River Club v. rence, and the carrying places be- Wade, 100 Wis. 86, 42 L.R.A. 305, tween the same, shall be common 76 N. W. 273; Pewaukee v. Savoy, • highways, and forever free, as well 103 Wis. 271, 50 L.R.A. 836, 74 Am. to the inhabitants of the said terri- St. Rep. 859, 79 N. W. 436; Barney tory as to the citizens of the United v. Keokuk, 94 U. S. 324, 24 L. ed. States, and those of any other states 224; Illinois C. R. Co. v. Illinois, suthat may be admitted into the con- pra; Yates v. Milwaukee, 10 Wall. federacy, without any tax, impost, 497, 19 L. ed. 984. or duty therefor."

In the early history of the comThis provision of the Ordinance, mon law the rights of the public in

tion of publ

(180 Wi8. 225, 193 N. W. 393.) the navigable waters were confined Chicago & N. W. R. Co. 42 Wis. 214, exclusively to navigation, and the 24 Am. Rep. 386; Green Bay & M. public interest in such waters was Canal Co. v. Kaukauna Water Powlimited to purposes of navigation. er Co. (Patten Paper Co. v. KaukauThis doctrine was adopted in this na Water Power Co. (90 Wis. 370, country and extended from time to 28 L.R.A. 443, 48 Am. St. Rep. 937, time so as to meet the different and 61 N. W. 1121, 63 N. W. 1019; State varying conditions as they arose. ex rel. Wausau Street R. Co. v. BanThe term “navigation," which had croft, 148 Wis. 124, 38 L.R.A. (N.S.) ordinarily been confined solely to 526, 134 N. W. 330. These riparian purposes of commerce, was so en- rights constitute larged as to include the use of the property that may -riparian rightm

as property. waters for purposes of travel, for be the subject of fishing, bathing, recreation, and bargain and sale, and are a part of hunting. Diana Shooting Club v. the owner's estate in the land, and Husting, 156 Wis. 261, 145 N. W. enter into the actual value. 27 R. 816, Ann. Cas. 1915C, 1148. But in C. L. 1071; Green Bay & M. Canal so enlarging and extending the pub- Co. v. Kaukauna Water Power Co. lic uses of navigable waters, the (Patten Paper Co. v. Kaukauna original purpose of the use of such Water Power Co.) 90 Wis. 370, 28 waters for navigation purposes has L.R.A. 443, 48 Am. St. Rep. 937, 6L never been lost sight of, and, in fact, N. W. 1121, 63 N. W. 1019; State such use is at the very foundation of ex rel. Wausau Street R. Co. v. Ban

the public right, and croft, supra; Mills v. United States Waters-founda

a reading of the (D. C.) 12 L.R.A. 673, 46 Fed. 738. right.

case of Diana Shoot- This enhanced value, by reason of ing Club v. Husting, supra, brings the incidents connected with the home the conviction that this con- ownership of the soil, also enters inclusion is correct, for, in defining the to the amount which the riparian public use, the various purposes for owner is obliged to pay in taxes, and which the public waters may be a transfer of the property without used, besides navigation for com- any reference whatsoever to these mercial purposes, are declared to be rights automatically conveys and inincidents to navigation. In other cludes them. Illinois C. R. Co. v. words, the extension of the term is Illinois, supra. In 27 R. C. L. p. a mere corollary to the primary use. 1073, it is said upon the authority That navigation is the foundation of of numerous cases cited in the the public use cannot be lost sight of notes: "Riparian rights are the rein the consideration of the issue in- sult of that full dominion which volved in this case, where it is at- everyone has over his own land, by tempted to justify the use of the which he is authorized to keep all shore between ordinary high and others from coming upon it except low water marks, for the purposes on his own terms. They are defined of travel or other similar purposes. as the rights of the owner of lands

In the Diedrich Case, supra, it upon water to maintain his adwas held that the rights of a ri- jacency to it, and to profit by this parian owner are not dependent advantage, and otherwise as a right upon the ownership of the soil un- to preserve and improve the connecder the water, but upon his title tion of his property with the water. to the banks. Such rights can- Those rights are not common to the not be taken from him for private citizens at large, but exist as inpurposes in any event, nor can they cidents to the right of soil itself conbe taken for public purposes unless tiguous to and attingent on the waadequate compensation is paid ter. In such ownership they have therefor, under the law of eminent their origin, and not out of the owndomain. Diedrich v. Northwestern ership of the bed, and they are the Union R. Co. supra; Delaplaine v. same whether the riparian owner

owns the soil under the water or the Delaplaine Case is expressly not."

quoted, adopted, and afiirmed. The riparian owner also has the Note, also, the further pertinent right to build piers, harbors, and significant language used by the wharves, booms, and similar struc- court in the Delaplaine Case: “It tures, in aid of navigation, and such is evident from the nature of the right is also one which is incident to case that these rights (referring to the ownership of the upland. This the riparian rights] of user and of private right to so use the public exclusion are connected with the waters was denominated in Cohn v. land itself, grow out of its location, Wausau Boom Co. 47 Wis. 314, 2 N. and cannot be materially abridged W. 546, as an intrusion upon the or destroyed without inflicting an inpublic right, tolerated only in pri- jury upon the owner which the law vate aid of navigation, and gives should redress. It seems unnecesway ex necessitate rei to public sary to add the remark that these measures in aid of navigation. And, riparian rights are not common to as is said in Stevens Point Bcom Co. the citizens at large, but exist as inv. Reilly, 46 Wis. 237, 49 N. W. 978: cidents to the right of the soil itself “This private right of the riparian adjacent to the water. In other owner

is subordinate to the words, according to the uniform public use of a navigable river, and doctrine of the best authorities, the is always exercised at peril of ob- foundation of riparian rights, ex vi structing navigation."

termini, is the ownership of the bank It has also been held that a ri- or shore. In such ownership they parian owner is entitled to the land have their origin. They may and do formed by gradual accretions and as exist though the fee in the bed of a result of relictions. He also has the river or lake be in the state." the right to use the waters for do- In Clement v. Burns, 43 N. H. 609, mestic and agricultural purposes,

619, it is held, after a review of and he can make improvements many of the leading cases both in necessary to protect his soil from the Supreme Court of the United the process of erosion.

States and in the state courts : I These are but few of the many

"From this examination of the adrights of a riparian owner which are judged cases, it is quite apparnecessary incidents to his title to ent that the principles of the Engthe upland, and such rights are not

lish law have been much modified only generally conceded by the deci

in the American courts, and that sions in this state, but by the deci

it must now be conceded as an

established rule of American law sions in practically all the other

that the


owner of uplands states where the question has come

jacent to navigable waters has up for adjudication. But the ques

an interest in the shores, of which tion as to the right of the public to

he cannot be deprived, even by use the shore between ordinary high

the sovereign power, without comand low water marks, it would ap- pensation (see 2 Am. Lead. Cas. pear, has been definitely settled by 224); and the cases are numerous, the decisions of this court. In

among those cited, where, for inDelaplaine v. Chicago & N. W. R. fringing such rights, actions of variCo. 42 Wis. 214, 24 Am. Rep. 386, it ous kinds, including actions of ejectwas held that, as proprietor of the ment and trespass quare clausum adjoining land and as connected fregit, have been maintained by the with it, the riparian owner has the riparian owners, especially when the right of exclusive access to and from soil between high and low water the waters of the lake at that partic- mark has been reclaimed by the ular place. In McCarthy v. Murphy, erection of wharves, or the filling up 119 Wis. 159, 100 Am. St. Rep. 876, of flats. ... If a writ of entry or 96 N. W. 531, the language used in trespass quare clausum fregit can

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