Kuehn v. City of Milwaukee

83 Wis. 583 | Wis. | 1892

Lyon, C. J.

We think the motion for a temporary injunction was properly denied, for the reasons stated in the above extract from the opinion of the learned circuit judge. Those reasons are so clearly and accurately stated therein that but little need be added.

Any citizen of the state has a lawful right, in common with all other citizens, to fish in the waters of Lake Michigan. Because the right is common to the whole public, such waters are a common fishery. Wright v. Mulvaney, 78 Wis. 89. Any act which interferes with the enjoyment of that right in any particular locality may be a nuisance; but, if it affects all alike who fish in that locality, it is a public, and not a private, nuisance, and no private individual can maintain an action in equity to enjoin its continuance. This is elementary law, recognized and enforced by all courts. It is repeatedly asserted in the numerous cases cited by the learned counsel for plaintiff in support of his claim that an injunction ought to issue in this case.

The injury here complained of is the damage to the nets of plaintiff, and the killing of the fish which had been caught therein, on the single occasion mentioned in the complaint, and the destruction- of the fishing business in that locality. There is no averment that the plaintiff ever before placed his nets where he placed them on December 30, 1891, or that he ever intended to locate them again in that precise place, or that his nets had been thus damaged or fish therein killed at any other time, or that there was any danger of a repetition of injuries of the same character by like means. So • far, then, as injury to such property is concerned, whatever remedy at law the plaintiff may have to recover damages therefor, it is clear he has none in equity.

Neither has he any such right to any specific portion of the lake as will support his action for an injunction. The field of his operations contained 400 square miles or more; and there is nothing in the motion papers to show that he acquired, by occupancy or otherwise, or ever attempted to so acquire, any rights in any particular portion of such field which did not belong equally to every other citizen who, finding the particular place vacant, chose to locate his nets there.

The only other injury of which the plaintiff complains is the destruction of the fishing industry in such twenty miles square of Lake Michigan. It is obvious that such alleged injury is common to every person engaged in fishing in that territory. The case shows that there are many such persons.

Many of the cases cited by counsel for plaintiff have been examined. It is believed that none of them conflict with the views herein expressed. They relate to the interruption of the use of navigable streams for the transportation of private property; to conflicting claims to ice formed in such streams; and to conflicting questions of riparian rights; and nearly all of them are actions at law for damages. As already observed, we find nothing in any of them in conflict with the rules of law above- indicated, which controlled the decision, of the circuit court. Such decision is the more satisfactory in view of the fact that the city has ceased entirely to dump its garbage into the lake, and has made other and permanent arrangements for the disposition of it. At least, it was so stated in the argument, and not denied.

By the Court.— The order of the circuit court denying the injunction is affirmed.