Cohn v. Wausau Boom Co. , 47 Wis. 314 ( 1879 )

Ryan, C; J.

It is settled in this state, that a riparian owner on navigable water may construct in front of his land, in shoal water, proper wharves, piers and booms, in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water. This is properly a riparian right, resting on title to the bank, and not upon title to the soil under water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license by the public; is subordinate to the public use, and may be regulated or prohibited by law. Diedrich v. Railway Co., 42 Wis., 248; Stevens Point Boom Co. v. Reilly, 44 Wis., 295; S. C., 46 Wis., 237.

It is not questioned that the respondent had this right in front of his land on the Wisconsin river, before the passage of chapter 45, P. & L. Laws of 1871, amended by chapter 256 of 1873. Section 10, however, of the former chapter, grants to the appellant the exclusive right of constructing booms necessary for holding, storing and assorting logs, etc., for a certain distance up and down the bank of the river, including the respondent’s land fronting upon it.

Nothing in the section or elsewhere in these statutes, taken together, will bear a construction authorizing the use by the appellant of any part of the bank of the river owned by others, or the exercise of the riparian right of others, within the limit defined. Of course, that could not be done for a private use; or for a public use, without just compensation, by the exercise of the right of eminent domain. Such a power was given in the statute of 1871, but it is expressly taken away by the statute of 1873. Under the two statutes, so far as the use of the bank of the river is essential to the exercise of the franchises granted to the appellant, it is confined to its own riparian ownership; and the exclusive right of the appellant as against other riparian owners is prohibitory only of the exercise of the right by the latter. In this respect the construction of the statutes is sufficiently plain. The appellant’s boom can rest on the bank of the river only in right of the appellant’s riparian ownership; but its works in aid of the boom may extend in the water, up and down the river, excluding all other booms within the limits specified.

The prohibition of the section is not express. ■ It is only an incident of the exclusive grant. The validity of the prohibition is therefore dependent on the validity of the grant. A statute may, indeed, in the exercise of legislative discretion, take away the exercise of the private right, which is a quasi intrusion upon the public right, is subservient to it, and exists only by public sufferance. But this can be properly done only in the enforcement of the paramount public right; and a statute granting an exclusive right to one riparian owner, for a private use, could not be supported as a valid prohibition of the right of adjacent riparian owners. Such a provision would not be an assertion of the paramount public right, but the subordination of one private right to another; would not be in aid of public use, but of a quasi monopoly of private use. As between several riparian owners such a provision would have effect to give one owner’s land somewhat of the nature of a dominant estate, and the lands of the others somewhat of the nature of servient estates. This could not be upheld as a valid exercise of legislative control over the private riparian right.

The controlling question in this case, therefore, is whether the franchises of the appellant are granted for a public or for a' private use.

As they stood under chapter 45 of 1871, it would be difficult to consider the appellant other than a private corporation, for private use; for section 15 of that statute gives a preference to the members of the corporation over the general public, in the use of the works authorized. But the amendment of-1873 takes away the preference, and gives an equal right in the use of the works to all the world; and the question here must be determined under the latter provision.

In this state, navigable water includes all water capable of actual navigation (Diedrich v. Railway Co., supra), and the capacity of floating logs to market is sufficient to make water navigable within the rule. Olson v. Merrill, 42 Wis., 203. Whether and how far navigable for other purposes, the capacity of floating logs to market appears to be the chief navigable value of the Wisconsin river, as the legislation relating to it and numerous cases in this court abundantly show. Whatever equally aids this use of the river by all having occasion for it, is of public purpose ( Wisconsin R. I. Co. v. Manson, 43 Wis., 255); and the utility, indeed the necessity, of booms at •convenient points for receiving, assorting and distributing logs, suchas the appellant is authorized to construct, is so universal on such rivers that it is judicially recognized as entering into the law governing their use. Pound v. Turck, 95 U. S., 459. See also Delaplaine v. Railway Co., 42 Wis., 214; S. P. Boom Co. v. Reilly, supra; G. R. Booming Co. v. Jarvis, 30 Mich., 308; Perry v. Wilson, 7 Mass., 393; Lawler v. Boom Co., 56 Maine, 443.

The appellant must therefore be held to be a guasi public corporation (Att'y Gen. v. Railroad Cos., 35 Wis., 425), an agent of the state for the improvement of the river ( Wis. R. I. Co. v. Manson, supra), and its franchises granted for a public use.

Of course, private property of others could not be ■ in any way appropriated or used by the appellant in aid of the public purpose, without authority of law, upon just compensation. But the land of the respondent is neither taken nor used; the works of the appellant neither touch it nor overflow it. The statutes under which the appellant acts authorize no such interference with the property of others. They only aid the public use for which the appellant is chartered, by restraining the exercise of a private right, which the legislature appears to have considered inconsistent with it; a right which the respondent, as other riparian owners, held only by implied public license — as it were, as tenant by sufferance of the state; a right of which the exercise might always be prohibited by public law, in aid of public use. The private right is a quasi intrusion upon the public right, tolerated only in private aid of navigation, and gives way, ex necessitate rei, to public measures in aid of navigation.

“ This private right of the riparian owner is subordinate to the public use of a navigable river, and is always exercised at peril of obstructing navigation. This subjection of the private right to the public use may sometimes impair the private right or defeat it altogether. But the public right must always prevail over the private exercise of the private right.”’ S. P. Boom Co. v. Reilly, 46 Wis., 237. As against the riparian owners, within the limits specified in the statute, the state has only resumed its own. Otherwise, the title, possession and use of the respondent’s land remain intact. If the public action lessen its value, it is literally .damnum absque injuria. Alexander v. Milwaukee, 16 Wis., 247.¹

And this proceeding, to restrain the agent of the state in the exercise of franchises granted in public right for public use, is equivalent in principle to a private action against the state itself to subordinate the paramount public right to the subservient private right.

So far the appellant’s works have been considered as complying with its franchises. It may be that they are so constructed as to impede the general navigation of the river. If so, the remedy is surely not by a proceeding in equity at the suit of a private person. It may be that the appellant has so used its works, in the handling of rafts or logs, as to give some right of action to the respondent.- If so, the action is surely at law, sounding in damages. Remington v. Foster, 42 Wis., 608.

By the Court. — The judgment is reversed, and the cause remanded to the court below with directions to dismiss the complaint.

1 The authority of Alexander v. Milwaukee is not considered shaken by Arimond v. G. B. & M. Canal Co., 31 Wis., 316. The cases are both well decided, on essentially different grounds, and, properly understood, quite consistent with each other.