Reysen v. Roate

92 Wis. 543 | Wis. | 1896

Winslow, J.

The plaintiff was the lessee of a mill on the Sheboygan river, and of the water power and the rights of flowage appurtenant thereto; but was not a riparian proprietor. on the millpond, nor the owner in fee of the bed of the pond. The defendant entered upon the pond when frozen, and placed timbers thereon, and cut and removed ice therefrom, but did not thereby interfere with the plaintiff’s right of flowage or lessen his water supply., Can the plaintiff maintain trespass ? The circuit court held that the action could not be-maintained by the plaintiff, and we are satisfied that the judgment is right. It is settled in this state that the title to the bed of a stream is in the riparian owners, whether the stream be navigable or not. Olson v. Merrill, 42 Wis. 203. Ice which forms on streams or ponds the bed of which is the subject of private ownership belongs to the owner of such bed, and such owner may maintain trespass for its removal. Gould, Waters, § 191, and authorities cited; Bigelow v. Shaw, 65 Mich. 341. The appellant neither owned the bed of the pond, nor did the removal of the ice in any way lessen his water supply or interfere with his rights of fiowage. Therefore it is plain that he had no right of action therefor.

By the Court.— Judgment affirmed.