Priewe v. Wisconsin State Land & Improvement Co., 67 N.W. 918

Priewe v. Wisconsin State Land & Improvement Co.

67 N.W. 918

Wis.

1896

Check Treatment

Cassoday, C. J.

Uрon the facts stated it must be admitted that, January 1,1888, and for several years prior thereto, the plaintiff was the owner of the land mentioned; that the same extended to the lake upon the north side or shore thereof; and that he had a natural frontage upon the lake of about 100 rods. That being so, it must be conceded that, during that time, the plaintiff owned and possessed all the-rights and privileges in and upon that lake incident to such riparian proprietorship. It has repeatedly been held, in effect, by the supreme court of the United States, that it is for the several states themselves to determine to what waters and to what extent the prerogatives of thе state shall be-exercised in regulating and controlling the shores of such waters and the lands under them, and that, if any state determine to resign to riparian proprietors rights which properly belong to it in its sovereign capacity, it is not for others to raise objections. Barney v. Keokuk, 94 U. S. 338; Hardin v. Jordan, 140 U. S. 382; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 271, 272; Shively v. Bowlby, 152 U. S. 45, 46. In this state it has been repeatedly held that the riparian proprietor upon navigable lakes and ponds takes the land only to the water’s edge, but that, as such proрrietor, he has the exclusive right of access to and from the lake in front of his land, and of building piers and wharves there in aid of navigation, not interfering with the public easement; that such private rights grow out of his title to the land, and have a pecuniary value, and their destruction or material abridgment is generally an injury, entitling him to redress. Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Boormam, v. Sunnuchs, 42 Wis. 233; Diedrich v. N. W. U. R. Co. 42 Wis. 248; Cohn v. Wausau Boom *547Co. 47 Wis. 322; J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 82; Janesville v. Carpenter, 77 Wis. 300; Northern P. L. Co. v. Bigelow, 84 Wis. 163, 164. Thus in Cohn v. Wausau Boom Co., supra, RyaN, C. J., said: “ It is settled in this state that a riparian owner on navigable -water may construct in front of his land, in shoal water, proper wharves, piers, and booms in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water. This is properly a riparian ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍right, resting on title to the bank, and not upon title to the soil under the water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license by the public, is subordinate to the public use, and may be regulated by law.” See, also, Farnum v. Johnson, 62 Wis. 620. Quite similar language of Mr. Justice OktoN in Janesville v. Carpenter, supra, is quoted approvingly by Mr. Justice BROWN in Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 271, 272. Certainly, one such riparian owner, withоut legislative authority, has no legal right to draw the water from such lake, to the injury of other such riparian proprietors thereon. Sampson v. Hoddinott, 87 Eng. C. L. 590; Wilts & Burks Canal Nav. Co. v. Swindon Water Works Co. 9 Ch. App. 451; S. C. L. R. 7 H. L. 697; Miner v. Gilmour, 12 Moore, P. 0. 156; North Shore Co. v. Pion, 14 App. Cas. 621; Miller v. Miller, 9 Pa. St. 74; Lawson v. Mowry, 52 Wis. 219; Kimberly & Clark Co. v. Hewitt, 79 Wis. 334. Assuming that the state had plenary power over the lake in question and the land beneath its wаters, when exercised in aid of commerce or any other legitimate public purpose, yet we are constrained to hold that it had no power to arbitrarily take away or destroy such rights of the plaintiff, as such riрarian owner, without his consent, and without compensation, and without due process of law, and for the sole purpose of benefiting some' other riparian owner, or for any other mere private purposе. Arimond v. Green Bay & M. *548Canal Co. 31 Wis. 316; S. C. 35 Wis. 41; Barden v. Portage, 79 Wis. 126; Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co. 79 Wis. 297; Wis. Water Co. v. Winans, 85 Wis. 39; In re Theresa Drainage Dist. 90 Wis. 301; Grand Rapids v. Powers, 89 Mich. 94.

Such having been the obvious rights of the plaintiff, as such riparian owner of the shore of the lake, as they existed January 1, 1888, the question recurs whether he lost such rights by reason of what was thereafter, and prior to April 13, 1891, done undеr ch. 169, Laws of 1887. As indicated in' the statement, the lake was, during that period, through the agency of the commissioners, lowered about four and one-half feet below the low-water mark, and by virtue thereof the plaintiff’s whole shore line was extended about two rods. The validity of that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍act is not before us for consideration; but, from what is before us, we may fairly assume that the plaintiff acquiesced in such proceedings, since he paid the assessments made by such commissioners by reason of the benefits he so acquired. This seems to imply that he was the owner of the land thus uncovered upon his shore line; and we find nothing to the contrary in the allegations of the complaint or the provisions of the act last cited. It was not the case of reliction or accretion by slow and imperceptible degrees from natural agencies. Boorman v. Sunnuchs, 42 Wis. 233. Nor was it the case of reliction by avulsion from natural-agencies. Nebraska v. Iowa, 143 U. S. 359. Rut it was, apparently, the drainage of low, marshy land, and the lowering of the lake by artificial agencies, for the benefit of riparian owners, including the plaintiff. We must hold that the plaintiff did not thereby lose his rights •as a riparian proprietor, and that he continued to have free access to the lake in front of his premises; and especially should this be so since the objection ,is not raised by the state in its sovereign capacity, but by other alleged riparian owners. This is obvious from the federal cases cited. See, *549also, Boorman v. Sunnuchs, supra; J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 98.

It follows that the plaintiff was still sucb riparian proprietor when ch. 202, Laws of 1891, was enacted. As indicated in the statement, that аct undertook to grant, convey, assign, and relinquish to James Reynolds, his heirs and assigns, forever, all the right, title, and interest of the state in and to all lands within the limits or boundaries of Muskego and Wind Lakes, as they existed or were shown by thelow-water mark lines prior to January 1,1888, and required him and them to lower the then present mean level of the waters of each of those lakes four and one-half feet more, on the theory that the preservation of the рublic health and the well-being of the communities adjacent to said lakes imperatively required that such system of drainage, previously adopted, should be extended, enlarged, and completed, so as to effectually drain such wet and overflowed lauds. The act provided, in effect, that after Reynolds, his heirs and assigns, should receive, from sales of'lands ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍thus uncovered and drained, all expenses incident thereto, then out of the first net avails of such sales he or they should pay back fifty per centum of the assessments which had thus previously been-paid under the act of 1887; and the act further provided, in effect, that nothing therein should “ be construed to defeаt or impair any right of action ” that might “ arise to recover-damages caused to any person or property by carrying out the provisions of that act.” Sec. 8. Reynolds, to whom such important rights were thus granted, convеyed, assigned, and relinquished, was at the time, as alleged, a resident of ■ Illinois. About the time of that enactment the defendant appears, to have been incorporated, under the laws of this state, “for the purpose of purchasing, improving, and selling real estate, and- of constructing canals, ditches, drains,, and levees for agricultural and sanitary draining or mining purposes, for the creation and control of water powers, for the *550improvement of any lakes and streams within the lands owned by it, and the stocking of said lakes with fish, and also for the purpose of acquiring the rights and assuming the duties and obligations, if any, of one James Reynolds in and to such rights, duties, and obligations, if аny, .as had been prior thereto granted and conveyed to said James Reynolds by act of legislature of this state.” As indicated in the statement, twelve days after that enactment Reynolds and wife conveyed all that he thеreby acquired to the defendant. The purpose of incorporating the defendant, as thus alleged, pretty clearly indicates the purpose of the enactment in question. The manifest purpose of both was tо secure speculative advantage and pecuniary gain to private parties. Such being the case, the act in question and the conveyance from Reynolds and wife to the defendant both come within the condemnation of this court, as expressed in an opinion by Mr. Justice Piotey, wherein it was said: “ In Ill. Cent. R. Co. v. Illinois, 146 U. S. 387, it was held, among other things, that ‘riparian rights are incident to riparian ownership, and existing with it, and passing with the transfer of the land. The land must not оnly be contiguous to the water, but in contact with it. That proximity without contact is insufficient. The riparian right attaches to land on the border of navigable water, without any declaration to that effect from the former ownеr, and its designation in a conveyance by him would be surplusage.’ . . . It is plain that no grant by the state, for purely private purposes, of such lands, could operate to impair or defeat the previously acquired rights of the riparian owner; for the state has no right to make such a grant. The right which the state holds in these lands is in virtue of its sovereignty, and in trust for the public purposes of navigation and fishing. The state has no proprietary interest in them, and сannot abdicate its trust in relation to them, and, while it may make a grant of them for public purposes, it may not make *551■an irrepealable one; and any attempted grant of the kind would be held, if not absolutely void on its faсe, as subject to revocation. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍These views are maintained with clearness •and vigor in the very able and elaborate opinion of the court in the case” last cited. McLennan v. Prentice, 85 Wis. 444.

Certainly, if the state had power, by the act in question, to convey and relinquish to “James Reynolds, his heirs and assigns, forever,” and hence to the defendant,— a private ■corporation,— all its right, title, and interest in and to all lands lying within the limits of .Muskego Lake, then it may, in a similar manner, convey and relinquish to private persons or corporations all such right, title, and interest in and to every one of the 1,240 lakes in Wisconsin. Such conveyance and relinquishment is claimed to be a legitimate exercise оf the police power of the state; and it is contended that, because the act asserts that such system of drainage is required for the preservation of the public health, the same is conclusive upon all courts. While the question of the necessity, expediency, or propriety of taking private property for public use is for the legislative department of the government, yet the question whether a particular use is public or private is for the judicial department. Wis. Water Co. v. Winans, 85 Wis. 39, 40, and authorities there cited. In Everett v. Marquette, 53 Mich. 452, in considering the question whether the maintaining of a particular structure within the limits of the street constituted a public nuisance, Cooley, C. J., said: “While the city council is entitled, under its •suрervisory control of the public streets, to consider and pass upon that question for the purpose of deciding upon the institution of legal proceedings for abatement, it cannot make itself the judge. Maintaining a nuisance is a public ■offense, and the fact, as in other cases of alleged criminality, is to be tried on proper accusation and in the regular ■courts.” In a later case in the same court, it was held that “ the legislature has no power to authorize a municipality *552to make that a purpresture or nuisance which is not so in fact,, if, by so doing, the constitutional ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rights of any citizen in his person or property are infringed or destroyed.” Grand Rapids v. Powers, 89 Mich. 94. See Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418; St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649. So here, upon the facts alleged in the complaint, the legislature had no power, under the guise of legislating for the public health, to authorize the-destruction of the lake, and thereby create a nuisance, tо the great injury of the plaintiff as such riparian owner, for private purposes and for the sole benefit of private parties.

We must hold that the complaint states a cause of action.

By the Court.— That portion of the order of the circuit-court appealed from is reversed, and the cause is remanded with direction to overrule the demurrer, and for further proceedings according to law.