Boorman v. Sunnuchs

| Wis. | Aug 15, 1877

LyoN, J.

In the cases of Diedrich v. The N. W. U. R'y Co., and Delaplaine v. The C. & N. W. R'y Co. (decided herewith), we had under consideration questions as to the rights of owners of lands bounded by meandered lakes or ponds, in such bodies of water and the beds thereof. For reasons stated in the opinions in those cases, and which it is unnecessary to repeat here, we reached the conclusion that such owners take no fee in the bed or soil under the water by virtue of their riparian ownership; but that, by virtue thereof, they have certain riparian rights in both the water and bed. Among these are the rights to go upon the water from their adjoining lots, and upon the lots from the water; to build wharves and piers in front of their lots in aid of navigation; and to have the waters flow to the lots without artificial obstruction. To these may be added the right of the riparian owner to accretions formed by slow and imperceptible degrees iipon or against his land, and to those portions of the bed of the lake or pond adjoining his land uncovered in the same manner by the dereliction of the water therefrom. These rights by accretion and reliction will be hereafter further considered.

It may be conceded that all of these riparian rights are held subject to the paramount right of the public to use such lakes or ponds for the purposes of commerce and navigation, when the same can be so used.

It is true that in the cases above mentioned we had to deal with confessedly navigable bodies of water; but no good reason is perceived w'hy the same principles are not applicable, so far as they can be applied, to any meandered lake or pond, whether it be navigable in fact or not. The cases on the subject make no distinction between navigable and nonnavigable bodies of water, in determining the nature and extent of such riparian rights as may exist in both. It seems to us that the sounder and better rule is, that- when any lake or pond, although not navigable, has been meandered by the government surveyors, and the government sells by such survey, the purchaser of a lot bounded by it, while he takes no fee in the bed of the lake or pond, does take therein and in the waters the same riparian rights, as appurtenant to his lot, which he would have taken had the lake or pond been navigable in fact. This rule is easy of application, and we think it best accords with the intention of the government in meandering bodies of water and selling lots abutting thereon. Had the government intended that a grant of land upon a navigable body of water should confer greater or less rights upon the grantee than a grant of land upon one not navigable, it is fair to assume that the laws of the United States, or, at least, the rules and regularities of the land department, would so provide. But, so far as we are advised, there is no such provision.

Another rule applicable to this case is, that if the meandered line and the actual water line differ, the latter is the true line of a lot bounded in terms by the meandered line. Railroad Co. v. Schurmeir, 7 Wall., 272" court="SCOTUS" date_filed="1869-01-25" href="https://app.midpage.ai/document/railroad-co-v-schurmeir-88005?utm_source=webapp" opinion_id="88005">7 Wall., 272 (286); Wright v. Ray, 33 Wis., 260" court="Wis." date_filed="1873-06-15" href="https://app.midpage.ai/document/wright-v-day-6601307?utm_source=webapp" opinion_id="6601307">33 Wis., 260; Jones v. Pettibone, 2 id., 308.

In this case the plaintiff became the owner of the lots bounded by the pond in question, by divers mesne conveyances,'from the United States, in all which the lots are designated by their numbers as specified in the government survey and plat thereof. The field notes of such survey (which are the foundation of the government plats) were in evidence, and it appears therefrom that the lines of the lots extended to and from the pond. We conclude, therefore, that the lots of the plaintiff extended to the pond, notwithstanding the line of the pond and the meander line, as actually run and marked, may differ. Shufeldt v. Spaulding, 37 Wis., 662" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/shufeldt-v-spaulding-6601810?utm_source=webapp" opinion_id="6601810">37 Wis., 662.

We now come to consider the rights of the plaintiff to that portion of the bed of the pond between the original line of the water and the line thereof when the same was surveyed in the spring of 1874, and which was left uncovered by the dereliction of the water. The learned counsel for the defendant claims that although land reclaimed from the pond adjoining the lots of the plaintiff, by slow and imperceptible accretion, may belong to the plaintiff, the same principle dots not apply to the bed of the lake laid bare by reliction. Without going into an extended discussion of the subject, it is sufficient to say that in our opinion the better reason and the weight of authority support the proposition that there is no distinction in this respect between land reclaimed by accretion and that uncovered by reliction. It was so held in Jones v. Johnson, 18 How., 156, where the supreme court of the United States adopted the rule laid down by Blackstone, that land gained from the sea either by alluvion or by dereliction, if the same be by little and little, by small and imperceptible degrees, belongs to the owner of land adjoining. 2 Black. Com., 261-2; see also County of St. Clair v. Lovingston, 23 Wall., 46" court="SCOTUS" date_filed="1874-12-18" href="https://app.midpage.ai/document/county-of-st-clair-v-lovingston-89097?utm_source=webapp" opinion_id="89097">23 Wall., 46.

The question remains, however, whether the land between the original water line and that of 1874 was gained in the manner above specified. The averment of the complaint is, that the waters of the pond, after it was meandered in the United States survey, and from then hitherto, have gradually and in an imperceptible manner receded, so that this strip of land “has thereby been gradually and so slowly uncovered and gained'to the adjoining lands, that the progress thereof could not be noticed by one watching the same.” The court found as a fact established by the evidence, that such strip of land was uncovered and gained as stated in the complaint. All of the evidence on the subject seems to be directed to the proposition that the water receded so gradually that a person watching the process could not see it recede from the original bank.

"We conceive that an erroneous test was applied to determine whether the reliction was of such a character as to entitle the plaintiff to that portion of the bed of the pond uncovered by it. It is very manifest that the water might have receded altogether too suddenly to have vested the title in the uncovered land in the plaintiff, and yet a person watching the pond be quite unable to see the waters recede. We take it that had the whole fall in the water occurred within a week, perhaps within a day, at a uniform rate, the human eye is not sufficiently acute to have detected the process. Yet if a portion of the bed was laid bare by a process so sudden, no one will contend that the portion thus uncovered became thereby the property of the owner of the land adjoining.

We can lay down no precise rule of universal application on this subject; but we think the plaintiff, by his proofs, should have given the court some more definite information than he has, of the progress of the falling or recession of the water. • He should have shown the several stages of the process during longer or shorter periods of time, as determined by the width of the strip uncovered, or by comparison with the bank or other known and fixed objects, to the end that the court might have had some more definite and satisfactory data upon which to determine the character of the reliction. It seems to us that the court should not determine finally the rights of the plaintiff in that behalf on the evidence before us.

The case of The King v. Lord Yarborough, 3 Barn. & Cress., 91, contains some interesting remarks on this subject by Abbott, C. J., which accord with the views above expressed. It is to be observed, however, that the views of the chief justice in that case do not meet the approval of the Lord Chancellor in Att’y Gen. v. Chambers, 4 De G. & J., 70, who there states the rule more unfavorably to the plaintiff.

■ As to that portion of tbe bed of tbe pond which was covered with water when the action was commenced, we are inclined to think, from the evidence, that the water disappeared too suddenly and sensibly to vest the title to such portion in the plaintiff. Were this the controlling point in the case, we should probably so hold. But we have concluded that there ought to be another trial in order that the plaintiff may have an opportunity to supply, if he can, the defects in his proofs already mentioned; and a different state of facts may be proved at such trial. Hence, we think the better course is, to leave undetermined the question of the plaintiff’s right to that portion of the bed of the pond, and send the case back for a retrial of all the issues.

The exigencies of the case do not require us to determine whether the United States or the state of Wisconsin is the owner of that portion of the bed of the pond to which the plaintiff may fail to establish title. The question is an important one, and not free from difficulty, but it is immaterial to the determination of this case. The plaintiff is entitled to the relief prayed in respect to the lands in controversy to which he establishes title in himself, and no further. Nailing to show title in himself, he fails in the action, and it is of no consequence whether the title is in the defendant under his patent from the United States, or in the state, notwithstanding the patent.

Two points of practice were discussed in the arguments of counsel, which will now be briefly noticed. It is urged by counsel for the defendant that this action (which is in equity) should have been dismissed on the ground that the plaintiff has an adequate remedy at law. Without stopping to inquire whether it appears from the evidence that the plaintiff could have maintained ejectment to recover the land in controversy, or not, we think the objection comes too late. The case made in the complaint is one of equitable cognizance, and the judgment gives equitable relief. In such a case, the objection that there is an adequate remedy at law, does not go to the jurisdiction of the court, and, unless taken by demurrer or answer, must be deemed waived. Jones v. Collins, 16 Wis., 594" court="Wis." date_filed="1863-01-15" href="https://app.midpage.ai/document/jones-v-collins-6598912?utm_source=webapp" opinion_id="6598912">16 Wis., 594; Tenney v. The State Bank, 20 id., 152; Peck v. School Dist., 21 id., 516. Here it was not taken either by demurrer or answer.

The other point is, that the court below erred in permitting the plaintiff to file a supplemental complaint, and especially in permitting this to be done without the imposition of terms. The law relating to the filing of supplemental bills or complaints is believed to be correctly stated in the brief of counsel for the plaintiff as follows: “A supplemental bill is neces.-sary when, after the court has decided on the suit as framed, it appears necessary to bring some other matter before the court. It may be brought, not only to insist upon the relief prayed for in the original bill, but upon other and different relief, .where facts which have since occurred „may require it; as if, pending a bill to restrain proceedings at law upon a bill of exchange, the holder should obtain judgment in a suit at law. In such case the plaintiff in equity may file a supplemental bill, stating the facts and praying for repayment and indemnity. So, also, where new interests arise either before or after a decree, or where relief of a different kind or upon a different principle is required, a bill in the nature of a supplemental bill will be allowed.” Story’s Eq. PL, §§ 332-348, and cases cited; id., § 351 b. It seems to us that'this case comes within the above rules. The object of this action is to ascertain and enforce the riparian rights of the plaintiff in the bed of the pond, and the supplemental bill does not change the general scope of the action. It seems unnecessary to drive the plaintiff to an independent action to establish his rights (if he has any) in that portion of the bed uncovered by reliction pendente lite, when those rights may as well be adjudicated in the action already commenced. It best accords with the spirit of equity jurisprudence, to determine the whole controversy in one action. ITence, we think it wras not error to allow tbe supplemental complaint.

So far as terms are concerned, it was within the sound discretion of the court to impose them or not, and we cannot say that the failure to do so was an abuse of such discretion. Besides, we do not discover that the defendant demanded the imposition of terms, or excepted to the order of the court permitting the supplemental complaint to be filed without terms.

By the Court. — Judgment reversed, and cause remanded for a new trial.