212 Wis. 585 | Wis. | 1933
In 1848 a dam was built across the creek known as Grand River, in Green Lake county, overflowing lands
During the winter of 1930-31 the defendant harvested ice on this mill-pond and converted the same to his own use. This action is brought to recover the value of the ice, and defendant claims that the plaintiff is not the owner of the ice nor of the lands under the lake or pond, but that the title thereto is in the state, and that the public is privileged to take the ice from the said lake. Rossmiller v. State, 114 Wis. 169, 89 N. W. 839.
The creek across which the dam was built in 1848 was a noil-navigable stream. All of the lands overflowed were the subject of private ownership. At all times such lands have been and now are assessed for taxes and the taxes paid thereon. The pond or lake formed by the dam is concededly capable of navigation, and the public has been permitted to and has during all of the years exercised the rights thereon which belong to the public upon navigable waters. The public has used such waters for boating, swimming, hunting, fishing, skating, and similar recreations. The defendant claims that the continuous enjoyment of these rights upon these waters by the public has vested title to the lands under the waters in the state.
The case of Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, is relied upon as establishing this doctrine. In that case the natural waters of Pewaukee Lake, a concededly navigable lake, were artificially raised by the construction of a dam. It appears that a street line in the village of Pewaukee was coincident with the shore line of said lake; that Savoy,
While a dam is a fairly permanent institution, it is by no means an agency of perpetual existence. It will decay and wear away in time, and, when it does, the waters will recede to their natural level. While the owner of the dam may be restrained from affirmatively interfering with the artificial level which he has created, it is not at all clear how he could
This rule does not deprive the public of any rights. It is not necessary to the enjoyment of those rights that the title to the land under the artificially created water should be in the state. Such right as the public has acquired will be fully protected by the ordinary remedies. The title to the ice formed on this pond was in the plaintiff as the owner of the land beneath the same, and he is entitled to recover the value of the ice taken by the defendant. Reysen v. Roate, 92 Wis. 543, 66 N. W. 599; Abbott v. Cremer, 118 Wis. 377, 95 N. W. 387; Gadow v. Hunholz, 160 Wis. 293, 151 N. W. 810; Bigelow v. Shaw, 65 Mich. 341, 32 N. W. 800.
By the Court. — Judgment affirmed.