Diedrich v. Northwestern Union Railway Co. , 42 Wis. 248 ( 1877 )

KyaN, O. J.

I. A strong appeal was made- to us by one of the counsel of the appellant, to change, in this case, the rule of property arising upon one of the plats of the city of Milwaukee, established by this court in Emmons v. Milwaukee, 32 Wis., 434. And some of the authorities cited by the distinguished gentleman lent great force to his argument. Rowan v. Portland, 8 B. Mon., 232; Alves v. Henderson, 16 id., 131. The court was not referred to those cases in Emmons v. Milwaukee/ and it is now impossible to say, had they been then cited, what influence they might have had on the judgment in that case. It is not impossible that, if the construction of the plat now again relied upon, had been as well presented in that case as in this, it might have been adopted by the court. The present chief justice could hardly have expected his views of that case, then overruled by the court, to be now adopted by the then chief justice. But, whatever the former may have thought or still think of the reason of the rule in Emmons v. Milwaukee, he quite agrees with his brethren that it is now too late to disturb that case. Such a rule of property, once deliberately established, should be sure and stable. It would be an evil worse than any error in the reason of the rule itself, that it should be open to review and change as often as doubts might be suggested of its original soundness. Broom’s Legal Max., 111.

It was also suggested that the construction of the plat given in Emmons v. Milwaukee was not essential to the judgment in that case, and was therefore obiter dietum. But it is within the memory of us all, that the counsel on both sides in that case pressed the court to determine upon tbafc appeal the true construction of tbe plat, whatever might be the judgment of the court. This the court accordingly did; and so the rule laid down became res adjudieata in that case. The judgment was in favor of the city, though the rule of construction was against it. Therefore the city moved for a rehearing upon the sole ground that the construction of the plat given in the opinion of the court was erroneous; and the motion was elaborately argued on both sides upon that question. The court overruled the motion, thereby again affirming the construction of the plat. It might have been more provident not to have determined the rule until the record presented the question directly. But it is now too late to hold that the rule affirmed and reaffirmed in that case, and which determined finally the rights of the parties to it, is, as to other cases, mere obiter dictum. As to all cases involving it, it must be taken as the settled construction of the plat by this court.

It was contended that some parol evidence distinguishes this case from Emmons v. Milwaukee, and tends to establish a dedication in pais of the strip of land upon the margin of the lake. Undoubtedly the owners of the land who made the recorded plat, might, by a subsequent and independent act m pais, dedicate to the public land reserved to themselves by the plat. But we cannot think the evidence in question tends to establish any such independent act. We think that it tends rather to put a construction on the plat, that the plat itself had operated as a dedication of the strip in question. And, notwithstanding some things which might be implied from Barclap v. Howell, 6 Peters, 498, and perhaps from Gardiner v. Tisdale, 2 Wis., 153, it would be wild heresy in law to enlarge the operation of the plat by the parol construction of those who made it, or of the public who may have claimed under it. When the plat was recorded, it furnished the exclusive rule for its own construction for all time, unless reformed by judicial decree.

"We are therefore obliged to affirm tbe title of the respondent, so far as it is within the rule of Emmons v. Milwaukee, that is, within the strip of land to the natural shore of lake Michigan.

II. But the title asserted by the respondent in this case is not within the strip of land bounded by the natural shore of the lake; but is land made outside and in front of it, upon the natural bed of the lake.

It appears that, several years ago, the respondent, or some one under whom he claims, built an embankment into the lake, extending some eighty-five feet from the natural shore, in front of the land which he owns within the strip. And it is upon his title to this embankment that the respondent’s recovery in this case directly rests.

The title of the respondent, and of all persons under whom he claims, as riparian owners of land bounded by the lake, went to the natural shore of the lake, and was limited by it. To the bed of the lake within its natural shore, neither they nor he took any title as riparian owners. The title, as well as the use, of the bed of the lake is in the public.

Several cases involving several questions of riparian right have been considered by the court with this, and are decided at the same time. Boorman v. Sunnuchs; Delaplaine v. C. & N. W. Railway Co.; Olson v. Merrill. These eases presented questions of riparian right upon Lake Michigan, upon lesser navigable lakes, upon mere ponds not navigable, and upon running streams. They were argued at- the bar with much learning and ability, and have been thoroughly investigated and considered by the court. In these cases, we have reached, amongst other, the following conclusions, having more or less bearing on our judgment in this case.

First. Adhering to the uniform rule of decision in this court, as will be seen in Olson v. Merrill (ante, p. 203), that a riparian owner upon a river or stream, navigable or unnavigable, takes, in the absence of express limitation in his title, usque ad medium jilum aquae, the court bolds, in Boorman v. Sunnuchs (ante, p. 233), and Delaplaine v. Railway Co. (ante, p. 211), as in tbis case, tliat upon a natural lake or pond, the riparian owner, as such, tabes only to the natural shore of the labe or pond.

Second. Ñiparían rights proper are held to rest upon title to the bank of the water, and not upon title to the soil under the water; riparian rights proper being the same, whether the riparian owner owns the soil under the water or not. And, distinguished from the right arising in case of gradual and insensible accretion or reliction, the general right of appropriating and occupying the soil under the water, when such right may exist, is not properly a riparian right; resting not upon title to the bank only, but more directly upon title to the soil itself under the water.

Third. Distinguished from appropriation and occupation of the soil under the water, a riparian owner upon navigable water, whether or not he own the soil usque ad medium jiT/um aquae, and unless prohibited by local law, has a right to construct in shoal water, in front of his land, proper wharves or piers, in aid of navigation, and at his peril of obstructing navigation, through the water far enough to reach actually navigable water; this being held to further the public use of the water, to which the public title under the water is subordinate; and therefore to be, in the absence of prohibition, passively licensed by the public, and not a pourpresture.

Fourth. As a right of necessity, when water, navigable or not navigable, is by natural causes wearing away and intruding upon its banks, the riparian owner, whether or not he own the soil usque ad medium, jilum aquae, may, as against the public, at his peril of obstructing the public use when the water is navigable, and at his peril of the necessity, intrude, as far as may be necessary, into the water, for the construction of works necessary to the protection of his land against the action of the water.

Fifth. Without express and competent grant from the public, tbe rights declared in the foregoing third and fourth conclusions, are the only rights of a riparian owner, upon navigable water, to extend his possession beyond or intrude within the natural shore of the water. Any other extension or intrusion into the water, beyond the natural shore, -whether made by the riparian owner or a stranger, is a pourpresture, vesting no title in him who made it.

It is well to explain here that in speaking of water as navigable or not navigable, we do not use the words in their sense at the common law. Waters at the common law were called navigable, only when affected by the ebb and flow of the tide. Of course in this state, bounded on one side by a great freshwater sea, and on another by a great river, which with its con-fluents constitutes perhaps the most extensive inland navigation in the world, and having within it many streams and bodies of water capable of navigation and actually navigated, there is no water subject to the ebb and flow of the tide, or called navigable at the common law. Here, therefore, the restricted sense of the word, navigable, at the common lawr, is wholly inappropriate to the actual condition of things. Waters are here held navigable when capable of navigation in fact, without other condition. And when we use the terms, navigable or unnavigable, we mean capable or incapable of actual navigation. The confusion on this subject which sometimes occurs by the misapplication of the common-law sense of terms to the very different geographical conditions of this country, and the true sense here of the term, navigable, are well stated in S. B. Magnolia v. Marshall, 39 Miss., 109.

The- rule that the title of the riparian owner upon a natural lake or pond does not extend beyond the natural shore, appears to be very generally, almost universally recognized, and is discussed by Cole, J., in Delaplaine v. Railway Co., supra. It is unnecessary to repeat here what is there said, and in which we all concur. Indeed, the position was affirmed iii this court as far back as Mariner v. Schulte, 13 Wis., 692.

The rule that riparian rights rest upon the title to the bank and not to the bed of the water, is also discussed in the same opinion of Cole, J., in which it enters into the judgment of the court more directly than it does in this case, and need not be noticed here at any length. We take it to rest on sound principle, and to be affirmed or implied in a great majority of adjudged cases involving the point. It is distinctly recognized in Chapman v. O. & M. River R. R. Co., 33 Wis., 629. The authority of- the latter case was assailed at the bar in Delaplaine v. Railway Co., supra. The criticism, however, failed to disclose to us any error in the principles of the decision or in the reasoning of the opinion. We think it amply sustained by the authorities cited in.it; and fully supported, if need were, by the later and very able case in the English House of Lords, of Lyon v. Fishmongers’ Co., L. R., 1 Appeal Cas., 662, which is a direct and most satisfactory authority in support of the rule under consideration.

The rule that the right of appropriation and occupation of the bed of the water, where such right exists, rests upon title to the bed of the water itself, and not upon title to the bank only, appears to be in principle nearly self-evident. When the riparian owner is seized also of the soil under the water, his title is subject only to public use of the water, and to private rights of other riparian owners. When the water is not navigable, the public has no easement; and the riparian owner may, in general, put his estate under the water to any proper use he may please, not infringing upon the rights of other riparian owners, and not violating any public law. When the water is navigable, he may in general make like use of his estate under the water, subject to the like limitations, and not infringing upon the paramount right of use in the public.

These views are too familiar to call for examination of authorities at length. The principles on ydiich they rest have been recognized in many cases in this court. Walker v. Shepardson, 2 Wis., 384; S. C., 4 id., 486; Carpenter v. Mann, 17 id., 155; Yates v. Judd, 18 id., 118; Milwaukee Gaslight Co. v. Gamecock, 23 id., 144; Wisconsin River I. Co. v. Lyons, 30 id., 61; Arimond v. Canal Co., 31 id., 316; Chapman v. Railroad Co., 33 id., 629; and perhaps other cases.

The rule giving to the riparian owner, and limiting, the right to construct wharves and piers into navigable water to the point of actual navigability, is fully sanctioned by Walker v. Shepardson, supra, in this court, and Strong v. Dutton and Atlee v. Packet Co., infra, in the federal supreme court.

The rule permitting a riparian owner, as against the public, to intrude as far as may be absolutely necessary, in the construction of works necessary to protect his land against the action of the water, without impairing any public use, appears to us to go little, if any, beyond the rule at the common law. The King v. The Commissioners, etc., 8 Barn. & Cress., 355; Trafford v. The King, 8 Bing., 204. So far as it may appear to enlarge the common-law right, we believe it to be necessary to the rights of property on some of the waters of this state, especially on Lake Michigan; and we hold it to be one of many rights founded on the necessities of self preservation. See Miller v. Milwaukee, 14 Wis., 642. It may aid in preserving much valuable property; and, guarded as we have guarded it, can work no injury to the public. Whether and how far one riparian owner may exercise this right to the injury of another, or, exercising it, be liable for such injury, are questions on which we indicate no opinion.

It is unnecessary here to discuss these two last rules at any length; because there is no pretense in this case that the respondent’s embankment was constructed as a wharf or pier in aid of navigation; and none worth serious consideration that it was designed, and none whatever that it was necessary, to protect his estate bounded by the shore of the lake against the wash of the water. It seems to have been built and used for the sole purpose of extending into the lake his possession bounded by the late. We have stated these rules here, chiefly that our general conclusions upon the general subject, here grouped together, may fully and clearly appear, without risk of misapprehension.

The rule that where the fee of the bed of the water is in the public, the general right of the riparian owner is confined to legitimate uses of the water only, appears to follow of necessity from the principles already stated. It is difficult to perceive, how, in that case, the riparian owner could take right to intrude upon the public fee under the water, which he might not take to intrude upon the private fee bounding his estate upon the land side. This is especially apparent when the water is navigable, and the use of the water, as well as the fee in its bed, is in the public. In that case, all riparian right is subject both to the fee and to the use; and the riparian owner takes no right to intrude upon either.

And the reason of the rule applies equally, whether the water immediately next the shore be shoal or deep. For the fee is equally in the public; even the shoal water next the shore may aid the public use, and may deepen or be deepened, so as to become practically capable of navigation. It is difficult to perceive on what principle the right of public use in shoal water next the banks is to be distinguished from the right of public use in shoal water on bars or other natural obstructions in the channel of navigable waters. The public has a right to extend the actual capacity of use everywhere within the banks; making the public use coextensive with the fee. Wis. R. I. Co. v. Lyons, 30 Wis., 61.

Practically, in such a case as this, if a riparian owner might appropriate to himself, by embankment, the public fee under shoal water next the bank, his embankment might well in time cause the navigable water outside of it to become shoal in its turn, as seems to have happened in this case; whereupon the right to intrude upon the public fee would again accrue, and so on from time to time indefinitely; thus equally intruding upon the public fee and impairing the public use.

Be that as it may, it is conclusive against the right of private appropriation claimed, that, in such a case, the riparian owner takes neither fee nor use in the bed of the water adjoining his riparian possession.

These views are so clearly founded on principle, that we think we could entertain no doubt of them, even if they had not been expressly adjudicated. But there are cases upon the point, adjudged by very high authority, and quite satisfactory to us.

The limitation of the right of the riparian owner upon navigable water to intrude through shoal water upon the bed of the water, for the erection of wharves or piers in aid of navigation only, is clearly implied by the whole discussion of the court in Strong v. Dutton, 1 Black, 23. The point was not directly involved in that case; but appears to have been in the subsequent case of Atlee v. Packet Co., 21 Wall., 389.

In the latter case the riparian owner had saw mills on the bank of the Mississippi river; and, as part of a boom for receiving and retaining saw logs, had built a pier in the river, disconnected with the shore, in water ten or twelve feet deep. Of this pier, it is said in the opinion of the court: “ Some kind of a boom was necessary to enable him (the riparian owner) to keep these logs safely and economically. No question is made but that if he had a right to build a pier at that place, it was built with due skill and care.”

After discussing the rights which a state may confer upon municipal corporations to construct landings upon navigable waters, the court proceeds thus:

( “The wharves or piers are generally located by lines bearing such relation to the shore and to the navigable water as to present no danger to vessels using the river, and the control which the state exercises over them is such as to secirre at once their usefulness and their safety.

“ These structures are also allowable in a part of tbe water which can be used for navigation, on the ground that they are essential aids to navigation itself.

“ The navigable streams of the country would be of little value for that purpose, if they had no places where the vessels which they floated could land, with conveniences for receiving and discharging cargo, for laying by safely until this is done, and then departing with ease and security in the further prosecution of their voyage. Wharves and piers are as necessary almost to the successful use of the stream in navigation as the vessels themselves’, and are to be considered as an important part of the instrumentalities of this branch of commerce. But to be of any value in this respect, they must reach so far into deep water as to enable the vessels used in ordinary navigation to float while they touch them and are lashed to their sides. They must of necessity occupy a part of the stream over which a vessel could float if they were not there.”

Having stated that the riparian owner had no statutory or municipal authority, the court proceeds:

“ Nor is there any claim or pretense that this pier is in aid of navigation. No vessel or watercraft is expected to land there, nor are there any arrangements by which they can land or be secured or fastened. The size of the pier, its sharp corners, its elevation from the water, and its want of connection with the shore, forbid any such use of it. It is intended to receive nothing that floats but rafts, and no rafts but such as its owner designs to keep there permanently for his own use.

“He rests his defense solely on the ground that at any place where a riparian owner can make such a structure useful to his personal pursuits or business, he can, without license or special authority, and by virtue of this ownership, and of his own convenience, project a pier or roadway into the deep water of a navigable stream, provided he does it with care, and leaves a large and sufficient passway of tbe channel unobstructed.

“No case known to us has sustained this proposition, and we think its bare .statement sufficient to show it unsoundness.

“We are of opinion that the pier against which libellant’s barge struck, was placed by him (the riparian owner) in the navigable water of the Mississippi river without authority of law, and that he is responsible for the damages to the barge and its contents.”

The rule of that court, when not controlled by state decision, is, that riparian owners upon navigable streams take only to the shore, and not usque ad medium filxtm agues. That makes the conditions of that case, in their view, so far the same as in this. The principle on which the decision rests is perhaps not very clearly stated; but it appears to us that it rests, and the reasoning of the court throughout goes to show that it does rest, on the principle that a riparian owner upon navigable water can not intrude upon the bed of the water, save only by piers or wharves in aid of navigation. If, in that case or in this, the riparian owner could of right appropriate to his own use the bed of the water under shoal to navigable water, it would be immaterial whether he should build outwards from the shore, or, as in that case and in this, first construct a pier reaching navigable water, and then, as in this case, connect it by embankment with the shore. The pier in that case was held to be a pourpresture, because it was there, not in aid of navigation, as the bridge pier in Strong v. Dutton. but in aid of the riparian owner’s convenience on the bank; not in aid of the public use of the water, but in aid of the private uses of the land. Surely, after the judgment in that case, the riparian owner could not have legalized his pier by connecting it with the shore by embankment. The court does not rest its judgment upon the disconnection of the pier from the shore. The pier was held to be unlawful, not because it was disconnected with the shore, but because the riparian owner bad no right to intrude where it was, upon the public fee and the public use. The court puts the pier upon the same ground as a roadway to the same point; clearly covering such an intrusion as that in the case before us. It appears in that case that part of the water was shoal between the pier and the shore; and we apprehend that it would not have changed the view of the court, had the water been shoal the entire distance. For the court very plainly intimates that a pier in aid of navigation, in the same place, would have been a lawful structure within the rule of Strong v. Dutton.

A still more satisfactory case in support of our views, is Austin v. Rutland R. R. Co., 45 Vt., 215. That case arose in regard to land bounded by Lake Champlain, in which the court held that the riparian owner took no title in the bed of the lake beyond the shore. A stranger made land upon the bed of the lake, in front of the riparian owner’s estate, into navigable water, with wharves upon the lake side. The riparian owner brought ejectment for the land so made in front of him. The court appears to have assumed that, had the riparian owner himself, as such, a right in the bed of the lake, to intrude such an embankment upon it into navigable water, the embankment built by a stranger would enure to him, as a house built by a stranger enures to the owner of the land. The court therefore considers the right of the riparian owner to extend his possession to navigable water; and holds that “ all that could be claimed for the riparian owner is the exclusive right to pass to and from the shore, as it originally was, from and to the lake, but no peculiar or additional right to the lake itself.” “ There is no common law of Yermont by which the owner of land bounded on Lake Champlain has a right beyond low-water mark to appropriate as his own the bed of the lake.” The court suggests that the riparian owner may have a remedy against the land intruded between him and the lake, as a nuisance; but bolds against bim in the ejectment, for want of title in land made on the bed of the lake.

The opinion of the court is able and learned, discussing at some length-the English and American authorities on the subject. And we are quite satisfied that it states the true rule which should prevail in this state.

There are, indeed, cases more or less conflicting with this view, of which we shall notice but one or two.

The true ground of the rule in Rice v. Ruddiman, 10 Mich., 125, that the riparian owner takes usque ad medvum filum aquae upon Muskegon lake, is that the lake is only a widening of the river. "With the same view of the lake, we should hold the same view of the law. It is true that some of the opinions speak of extending the same rule of ownership usque ad medvum, filurn aquae to all small lakes within the state; but not so to lake Michigan. It is also true that some of the opinions speak, and we cannot help thinking somewhat loosely, of some measure of riparian right of use, “ not exclusive or unrestricted,” of the bed of navigable waters, under shallow water by the shore. We have considered what is there said, with great attention and the deference due to the great learning and ability of the court. But we cannot help thinking that even such a qualified right of intrusion into the shoal water of navigable streams or bodies would tend to the result accomplished in Yates v. Milwaukee, 10 Wall., 497, where it was held that the public authorities, in the process of rendering navigable to its full width a public river, could not, whether the fee under the water were in the public or in the riparian owner, remove a solid pier or embankment intruded by the riparian owner in shoal water into the river and upon the public use, without making compensation for it. Such a result of permissive private intrusion upon public right is pregnant with warning against the permission. W e cannot help regarding the latter case as an exceptional one, inconsistent with many better considered cases in the same court. We think that the true measure of right is the rule in Strong v. Dutton, and we are not sure that the supreme court of Michigan meant anything more.

We have here taken no notice of the exact line of boundary upon lakes or ponds; whether it be’ high water or low water, or the water’s edge; the exact line of boundary being immaterial in the case of so extended an intrusion.

With these views, it is hardly necessary to add that, in our. judgment, the respondent wholly failed in sustaining his title to the loousin quo.

III. If the railroad had been constructed in front of the respondent’s estate in the strip of land upon the natural shore of the lake, so as injuriously to affect his riparian right, we admit that he would be entitled to damages for the injury. Delaplaine v. Railway Co., supra. But that is not the respondent’s claim in this proceeding. He claims, not for the injury to his riparian right, but for land taken of which he is seized. Whether or not he had lost or impaired his riparian right, by the construction of the embankment in front of it, is a question not before us in this case, and on which we indicate no opinion.

IY. We have not considered the right of the railroad to go where it does. As in ejectment, a party seeking compensation in such a proceeding as this, must recover on the strength of his own title; and until he prove 'title in himself, is in no condition to question the right of the other party.

By the Gourt. — The judgment of the court below is reversed, and the cause remanded for a new trial.