Minehan v. Murphy

149 Wis. 14 | Wis. | 1912

Maeshall, J.

Tbe court instructed tbe jury, in effect, that, if tbe artificial condition mentioned in tbe foregoing statement bad existed, before tbe commencement of tbe action, for tbe full period requisite to divest title to tbe real estate from one and vest it in another by tbe law of adverse possession, and tbe locus in quo was bed of a navigable labe rather than of a navigable river, tbe former private title bad become vested in tbe state tbe same as that of natural lakes, and if such locus in quo was bed of a navigable stream, tbe former private title bad become changed to tbe same character of qualified title as that of riparian proprietors to tbe beds of navigable rivers in general. That was good law as conceded by counsel on both sides. Tbe court gave it as settled by tbe decisions of this court, following tbe letter and logic, particularly, of Smith v. Youmans, 96 Wis. 103, 70 N. W. 1115; Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436; Diana S. Club v. Lamoreux, 114 Wis. 44, 89 N. W. 880; Johnson v. Eimerman, 140 Wis. 327, 122 N. W. 775.

In tbe last case cited tbe court, speaking by Mr. Justice Bashes, said with reference to a long existing artificial condition, as in this case: “The artificial condition originally created by tbe dam became by lapse of time a natural condition.” In Diana S. Club v. Lamoreux, speaking, on tbe same subject, it was said: “By operation of tbe statute of limitations tbe artificial condition is thus stamped with tbe character of a. natural condition, and tbe title to tbe lands covered by tbe waters of tbe lake is deemed to have passed from private ownership to tbe same trust as that of lands covered by tbe waters of natural navigable lakes.”

Tbe law having been thus given to tbe jury with instructions, which are not complained of, as regards tbe distinction between a lake and a river, leaving to tbe jury merely tbe question of determining from tbe evidence the ultimate fact in controversy, counsel make no serious complaint, as we understand it, except in so far as tbe court failed to bold that there was no jury question in respect to tbe matter on tbe evidence. Tbe point was raised that there was no sucb question by motion to direct a verdict as well as by tbe several requests for instructions. No special attention need be paid to tbe requests as they involve tbe same subject as tbe motion.

Tbe statement of facts sufficiently meets tbe contention that there was no jury question as to whether tbe body of water was that of a lake. It is there said, in effect, — and we repeat it, — there was competent direct evidence and there were evi-dentiary circumstances tending to show that tbe disputed premises were in tbe waters of a navigable river. So long as there was evidence, circumstantial and direct, or either, tending to prove that sucb was tbe fact, tbe question was for jury solution as to whether it did so efficiently or not. Hence tbe result must be affirmed.

By the Court. — So ordered.

Tbe following opinion was filed March 16, 1912:

TiMUN, J.

I do not wish to be counted as assenting to tbe dictum hereinafter mentioned contained in tbe opinion in this case and some other cases.

I find nothing to criticise in tbe words “the artificial condition originally created by the dam became by lapse of time a natural condition.” These words are to my mind proper to describe a situation whereby riparian owners and others by long acquiescence and user became entitled to have tbe easement of overflow continued, their right to reach tbe water continued, and tbe water continued at its height and in tbe condition in which it was kept for more than twenty years as against any one who would, by draining the lake or pond or by other material interference, destroy the easement or render less available or valuable the riparian.rights. But I do not agree that the title to the lands covered by water raised by a dam in a river is deemed to have changed from private ownership to ownership by the state, even where that river is the outlet of a lake and. the raised water reaches back to the level of the waters of the lake. The person erecting and maintaining the dam acquires by condemnation or adverse-user an easement to overflow such lands. If by purchase or in consequence of a particular statute he should acquire title-for that purpose, he, and not the state, succeeds to the private ownership of the person whose title he has acquired. But where he acquires an easement the former proprietorship continues subject to the easement. Under the dictum, stated in this and the other cases referred to in the opinion, the owner of the land subject to the easement of flowage is to be cut off by a supposed adverse possession .which never existed. The state has in fact made no claim to the land. Neither has there been a day in which the owner of the submerged land could have brought an action against the state to assert his title, for the reason that the state was not in possession or making any claim, and for the further reason that the legislature has not authorized any such suit against the state. There is no statute giving the state title under such conditions, and if there were it would be unconstitutional. The-power to create limitations of this kind is legislative, not judicial. Missouri v. Illinois, 200 U. S. 496, 520, 26 Sup. Ct. 268. Long before the XIYth amendment to the constitution of the United States was adopted forbidding any agency of the state, legislative or judicial, to deprive any person of his property without due process of law, it was decided by the supreme court of the United States in Webster v. Cooper, 14 How. 488, that a legislative act making the seisin of the occupant adverse as against one who had no legal right to bring, an action, was invalid as taking away the property of one man and vesting it in another. The dictum here criticised would take away the property of one man and vest it in the state. See, also, Pratt v. Churchill, 42 Me. 471; Wass v. Bucknam, 38 Me. 356; Adams v. Palmer, 51 Me. 480; Forster v. Forster, 129 Mass. 559; Christmas v. Russell, 5 Wall. 290, 300. There must be some time within which the landowner could' have brought an action and he must have neglected during that time to do so. To attempt to take his property arbitrarily and vest it in the state merely because some other person has been twenty years in uninterrupted enjoyment of an easement thereon, seems to me very obviously unsound and unconstitutional. Terry v. Anderson, 95 U. S. 628; McGahey v. Virginia, 135 U. S. 662, 705 et seq., 10 Sup. Ct. 972.

I am authorized to add that Mr. Justice Kerwin concurs in the foregoing.