149 Wis. 316 | Wis. | 1912
The main question, involved in this case is whether the land in dispute and in possession of the defendants is owned by the plaintiff. The claim of the plaintiff is that it became such by accretion and reliction, although formerly the land was part of Green Bay, an arm of Lake Michigan, the title to which was in the state. Counsel insists that after plaintiff threw up the embankment the land in question was formed by the combined action of accretion and reliction and such land so formed.connected on the shore side with the main land and became a part of it; that the dredging by plaintiff some years before so as to throw up the bank and thereby form an island some distance from the shore is immaterial, because the land made by accretion and reliction lay between the artificial island and the main land and included the artificial island. The learned counsel for plaintiff relies mainly upon the following authorities: St. Clair Co. v. Lovingston, 90 U. S. 46, 68, 69; Lovingston v. St. Clair Co. 64 Ill. 56; Freeland v. Pennsylvania R. Co. 197 Pa. St. 529, 540, 541, 47 Atl. 745; Knudsen v. Omanson, 10 Utah, 124, 131, 37 Pac. 250; Priewe v. Wis. S. L. & I. Co. 93 Wis. 534, 67 N. W. 918; 1 Farnham, Waters, 324, § 70; Patterson v. Gelston, 23 Md. 432, 447; Wiel, Water Rights, 939, § 901;
The plaintiff’s contention cannot be sustained, as tbe authorities hereinafter cited, we think, fully demonstrate. To sanction such a rule would be to hold that a riparian owner could by artificial means acquire title to the bed of a lake far below the shore which belonged to the state. The disputed tract is the dump or bank made by plaintiff in so dredging the channel in the bay as to raise the land several feet above the level of the bay. No title could be acquired by such acts. The title still remained in the state, and, in order to recover, it was incumbent upon plaintiff to prove title in itself. Ill. S. Co. v. Bilot, 109 Wis. 418, 84 N. W. 855, 85 N. W. 402; Diedrich v. N. W. U. R. Co. 42 Wis. 248; Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Boorman v. Sunnuchs, 42 Wis. 233. One cannot by building up land or erecting structures
Point is made by counsel for appellant that the plaintiff acquired title by accretion and reliction in consequence of the filling up of the channel between the embankment and the shore, and that the level of the natural soil underlying the dredged bank came by accretion and reliction above the level of the surface of the lake, so that if the dredged bank were removed the underlying soil would have been land above water ; while it is strenuously contended on the part of respondents that all the filling between the land in suit and the main land was caused by artificial means and in some degree by the acts of plaintiff, that it was not permanent and was not created by slow and imperceptible changes, and does not come within the rule of accretion and reliction, hence plaintiff has no title to it. State v. Thompson, 134 Iowa, 725, 111 N. W. 328; Sapp v. Frazier, 51 La. Ann. 1718; Stover v. Jack, 60 Pa. St. 339; 1 Farnham, Waters, p. 339, § 75a; Saunders v. N. Y. C. & E. R. R. Co. 144 N. Y. 75, 38 N. E. 992; Allegheny City v. Moorehead, 80 Pa. St. 118. But whether this filling between the shore and the embankment was caused by natural or artificial means, or both, or was permanent or otherwise, or created by slow and imperceptible changes, or whether the plaintiff acquired any additions to its shore land by reason of such filling under the doctrine of accretion and reliction, we need not consider, because upon the established facts we are convinced that plaintiff acquired no title to the embankment in dispute by accretion, reliction, or otherwise. It was land raised in the bay below low-water mark, the title
It is well settled that if the land in question were an island which arose from the water and afterwards became connected with the plaintiff’s land by dry land, it would not become a part of the plaintiff’s land. People v. Warner, 116 Mich. 228, 74 N. W. 7705; East Omaha L. Co. v. Hansen, 117 Iowa, 96, 90 N. W. 705; Holman v. Hodges, 112 Iowa, 714, 84 N. W. 950; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100; Bigelow v. Hoover, 85 Iowa, 161, 52 N. W. 124. Clearly the present case is no stronger than that of an island arising from the water. One cannot acquire title to the bed of a lake or public waters by the erection of a pourpresture. So upon any theory this embankment constructed by plaintiff and remaining above the level of the bay did not become the land of the plaintiff. Diedrich v. N. W. U. R. Co., supra; Dana v. Jackson S. W. Co. 31 Cal. 118; Austin v. Rutland R. Co. 45 Vt. 215; People ex rel. Blakslee v. Comm’rs, 135 N. Y. 447, 32 N. E. 139; People v. Warner, supra; Cooley v. Golden, supra; Bigelow v. Hoover, supra.
It is further argued by counsel for appellant that the plaintiff could recover, even if it did not have title, by virtue of its rights as a riparian owner to access to deep water. In order to recover in this case it was incumbent upon plaintiff to prove title. Ill. S. Co. v. Bilot, 109 Wis. 418, 84 N. W. 855, 85 N. W. 402. Plaintiff did not seek recovery by force of possessory rights, but by force of title to the land sought to be recovered. Its complaint is based upon the right to recover title to the land; and our statute, sec. 3077, Stats. (1898), provides that the plaintiff shall in his complaint set forth the nature and extent of the interest which he claims, “whether in fee, dower, for life or for a term of years. . . .”
It has been held that recovery cannot be had in ejectment for a mere easement, because ejectment will lie only for things corporeal. Washburn, Easements, 3; Racine v. Crotsenberg,
Appellant complains because judgment was entered dismissing the complaint on the merits, and insists that it should have been a dismissal without prejudice. The complaint alleges that plaintiff has an estate in fee simple in the lands in question and is entitled to possession thereof. The plaintiff’s alleged title was the basis of its right to recover and it was determined that it had no title. The defendants were therefore entitled to judgment on the merits. The statute relating to judgments in ejectment actions so provides. “The judgment, after trial, shall he in accordance with the verdict or decision of the court.” Sec. 3086, Stats. (1898).
We have carefully examined the cases cited by the learned counsel for appellant and cannot see that they control this case. We are convinced that the judgment of the court below is right and should he affirmed.
By the Court. — The judgment is affirmed.
