117 Wis. 222 | Wis. | 1903
It is conceded, as the fact is, that if the laws of the state of Minnesota respecting the preservation of fish may be enforced by its officers upon the Wisconsin side of the main channel of the Mississippi river, which includes, of course, Lake Pepin, the answer of defendant states a complete justification for the acts complained of. The question turns on the meaning of federal laws by which the states of Minnesota and Wisconsin were given concurrent jurisdiction on the waters of the Mississippi river. The language of the two acts of Congress, the one relating to Wisconsin [Act of Aug. 6, 1846; 9 U. S. Stats, at Large, 57], and the other to Minnesota [Act of Eeb. 26, 1846; 11 II. S. Stats, at Large, 166], is the same so far as applicable to difference in situation. That as to Wisconsin (sec. 3) is as follows:
“The said state of Wisconsin shall have concurrent jurisdiction on the Mississippi and all rivers and waters bordering on the said state of Wisconsin, so far as the same shall form a common boundary to said state and any other state or states now or hereafter to be formed or bounded by the same.”
The term “concurrent jurisdiction” does not imply, as the learned attorney general for the state of Minnesota seems to suppose, that the people of the two states in their sovereign capacities are joint owners of the bed of the Mississippi river within the scope of the enabling acts referred to; or of the waters of the river or the fish therein or things thereon, under the principle laid down in Rossmiller v. State, 114 Wis. 169, 89 N. W. 839. Ownership in that sense does not follow jurisdiction, as the term was used in the enactments under discus-
It seems that the learned attorney general for Minnesota has drawn a different idea of this court’s decision in J. S. Keator L. Co. v. St. Croix Boom Corp. from our understanding of it and constructed thereon the theory that sovereign territorial rights between the shores of the river are common to the states of Minnesota and Wisconsin; that concurrent jurisdiction, as the term is used in the federal law, as viewed by this court, means concurrent dominion. We must repudiate that, and are constrained to believe that in doing so we do not need to overrule anything decided in the Keator Case; though we must confess, inasmuch as it dealt in some respects with permanent objects on the Wisconsin side of the main channel of the St. Croix river, language was used from which the broad idea entertained by counsel for appellant is not wholly without justification. It has been decided in many jurisdictions, including that of the supreme court of the United States, that “concurrent jurisdiction on the river’.’ extends only to the water and to floatable objects therein, not to bridges, dams, or any other objects of a permanent nature. If any such object be located upon the Wisconsin side of the main channel of a boundary river so as to constitute a nuisance, it must, accordingly, be deemed not only wholly within the territorial limits of Wisconsin, but within its exclusive jurisdiction. Mississippi & M. R. Co. v. Ward, 2 Black, 485; Gilbert v. Moline W. P. & M. Co. 19 Iowa, 319; Dunlieth & D. B. Co. v. Dubuque Co. 55 Iowa, 558, 8 N. W. 443; Buck v. Ellenbolt, 84 Iowa, 394, 51 N. W. 22; Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239. The rule laid down in those cases has been uniformly accepted by all courts as sound. The effect -thereof is that there is no such thing as concurrent ownership, so to speak, of territory, or incidents thereof, between
Having reached the conclusion that the laws of Minnesota do not for any purpose extend over the territory on the Wisconsin side of the main channel of the Mississippi river, except as regards things on the river — things of a floatable nature, — we are now to inquire whether by reason of respondent’s net being retained in place by means of stakes driven in the bed of the lake, it partook of the nature of a permanent object in the river rather than of a floatable object or thing on the river. Counsel for respondent ex industria added an allegation to the complaint stating the fact that the net was fastened to the bed of the ladee by stakes.' We do not deem that circumstance material. The net was no more an object of a permanent nature and part of the land, so to speak, to which it was attached, than a boat anchored in a stream temporarily. It was located where found for -á purely temporary purpose. It was not put in place by acts on the water. The dividing line of jurisdiction as to physical objects is between those on tlie river and those forming a part, not of the river, strictly speaking, but of the river bed. Gilbert v. Moline W. P. & M. Co., supra. The plaintiff’s net was an object of a transitory nature. It was liable to be moved about from place to place by enjoying the river as navigable water. The act of plaintiff, it seems, was an act in a fair sense connected with the use of the river as navigable water and subject to be dealt with by the jurisdiction of either Wisconsin or Minnesota if the term “concurrent jurisdiction” refers to the regulation of such matters.
We have now reached these conclusions in the course of our considerations: (1) All the territory within the banks of the Mississippi river on the east side of the main channel thereof, so far as the river forms a boundary between Minnesota and Wisconsin, is exclusively Wisconsin territory, with all the in
We are not unmindful of the fact that in J. S. Keator L. Co. v. St. Croix Boom Corp. it was suggested that the term “concurrent jurisdiction” includes the exercise of all legal authority by each state over the whole river. Upon that, in
“It does not in terms give such authority upon lands 'or waters of Wisconsin. Since the charter was granted by Minnesota alone, the defendant’s authority to so enter upon and occupy would seem to be confined to the territory of Minnesota, and in no event to reach beyond its jurisdiction. The line between the two states at the point in question is the main channel of the St. Croix.”
There would not seem to be much doubt that if we were to take the view which counsel for appellant does of the scope of the decision in the Keator Case, and adhere to it as the law, and defendant would in his own state be protected in what he did by its laws, he should be held equally protected by the laws -of this state. Its jurisdiction is not invoked to enforce the law of Minnesota, but simply to protect its officer in the enforcement of its own laws within the territory within which he had a right to go for that purpose if the
“It has never been held that the jurisdiction of this state extends to the east shore of the channel of the Mississippi in any case except where the act complained of or cause of action was founded upon something connected with the commerce of the river.”
That statement, of course, was not intended to exclude the mere arrest or service of process on the river as regards causes of action accruing elsewhere. It should be restrained to just what the court was discussing, that is, to causes of action arising on the river within the boundaries of one state which are cognizable in the courts of the other state. By reference to the former decision of the court (Gilbert v. Moline W. P. & M. Co. 19 Iowa, 319) the court said, in effect, that concurrent jurisdiction on the river was given so that causes of action, civil and criminal, accruing upon the water might be prosecuted in the courts of either state, and that for the purposes
We should observe in passing that in the Keator Case the decision in the federal supreme court in Mississippi & M. B. Go. v. Ward was referred to and the force thereof as regards restricting the meaning of the term “jurisdiction on the river” to narrower limits than the whole sovereign power of the state was observed. But it was in effect suggested that the court could not see that such case applied to the boundary rivers of this state, since the states on both sides of the boundary have concurrent jurisdiction over the waters, while, so far as advised, the state of Iowa did not have, concurrent jurisdiction with the state of Illinois over the Mississippi river between the two states. The court failed to discover, as the fact is, that the act admitting Iowa into the Union contains precisely the same provision as that in regard to this state in respect to concurrent jurisdiction over boundary waters. The act will be found set out in full in the Annotated Code of Iowa, published ir^ 1897, at page 55. That particular part material to our consideration is on page 56 and contained in sec. 3. Here is the language:
“The said state of Iowa shall have concurrent jurisdiction on the river Mississippi, and every other river bordering on the said state of Iowa., so far as the said rivers shall form a common boundary to said state and any other state or states, now or hereafter to be formed, or bounded by the same; such rivers to be common to both.”
We should also not fail to note that this court, in State v. St. Croix Boom Corp. 60 Wis. 565, 19 N. W. 396, in harmony with Mississippi & M. R. Co. v. Ward,, held that though the jurisdiction of the state of Wisconsin and that of Minnesota is concurrent on the St. Croix river between the two states, the jurisdiction of this state as regards obstructions in the river could not extend beyond the main channel thereof.
We have still to determine whether the concurrent jurisdiction under discussion permits one state to invade another
“It is a part of the legislative history of the country that negotiations having in view the settlement of the question have been several times attempted. And it may not be out of place here to express the hope that the whole subject may be finally disposed of in such manner as to secure the concurrent rights of, and to preserve the amicable relations which should continue to subsist between, the several states interested in its adjustment.”
Though it was not necessary in that case to even attempt to decide the controversy suggested, the court ventured to say that “the word jurisdiction, as applied to a state, and as used in the compact with Virginia, imports nothing more than the power to govern by legislation.” In connection with that the court suggested that, without some legislative enactment to enforce and carry out the jurisdiction conferred, it would not of itself be regarded ag operative or effectual to protect a person in the courts of one state or affect the right of a tribunal in such state as to the enforcement of its laws made with a view to such jurisdiction.
Going back from the Virginia enactment to which we have
“It is a principle of American public law that where the middle of a navigable river, lake, or bay, forms the dividing line of states, or an intangible line upon their waters, a concurrent jurisdiction, civil and criminal, arises over such waters to the states upon the opposite shores. It extends over the whole of the dividing waters, unless it was otherwise stipulated before the adoption of the constitution of the Union by state compact, or since, by such compact, with the assent of Congress.”
That is, according to the author, the concurrent jurisdiction upon boundary waters is presumed to exist by the law of nations and by public law in the absence of some written law to the contrary. Such declarations as that contained in the Virginia act of 1789, and those that have been modeled thereon, including those involved in this case, are but declarations of existing law, — law that would be assumed to govern in the absence of some written law to the contrary. The author we have quoted further says (page 210) :
“The same principle is applicable to all cases among nations where their boundaries divide navigable waters. The line being incapable of sight and ready perception, a concurrent jurisdiction, of necessity, must exist on the dividing waters. The navigable rivers, bays and great lakes divided by the boundaries of our republic and the British provinces and Mexico, are¿ by national comity and necessity, subject to such concurrent jurisdiction.
*235 “In all cases of sucli jurisdiction the state first arresting or prosecuting a party is, by comity, entitled to proceed to final judgment; and that is a bar to any retrial by any other state of our Union for the same cause or offense.”
That is in harmony with Sherlock v. Alling, 44 Ind. 184.
Without proceeding further in our investigations we are satisfied that the term “concurrent jurisdiction” was used in the acts admitting or providing for the admission of Wisconsin and Minnesota into the Union in the same sense in which it had theretofore been used as applicable to similar situations, both in written and unwritten laws, — in the same sense that it is said concurrent jurisdiction exists by comity of nations upon waters divided by their boundary line unless otherwise provided by some written law.
Tested by the principle above adopted, do the mere police regulations of one country regarding the exercise of the common right of .fishing extend into the territory of a foreign jurisdiction, the two being separated by an imperceptible boundary line in a river or lake? Is the common right of fishing which belongs to the people of this state within all that part of its territory on the easterly side of the main channel of the Mississippi river subject to the laws of the state of Minnesota ? There is no escaping the conclusion that if such is the ease it is competent for that state to extend its police regulations as regards fishing and hunting over a large part of the waters of Lake Superior on the Wisconsin side, reaching up to. the shore line, and for the state of Michigan to extend its laws on Lake Michigan on the same subject to the Wisconsin shore. We have searched in vain to find authority to sustain the affirmative of the proposition suggested. In no instance recorded in the books has one country been held entitled to exercise jurisdiction to regulate the common right of fishing in the territory of a foreign state under the measure of concurrent jurisdiction commonly exercised by the two on the waters divided by their boundary line. We venture
The result is that the order of the circuit court sustaining the demurrer must be affirmed.
By the Oourt. — So ordered.
I cannot concur in the conclusion reached by the court in this case, for the reason that I am unable to distinguish between criminal and police legislation of the state addressed to the subject of catching or destroying fish, and police or criminal legislation relating to other subjects. That the concurrent jurisdiction enjoyed by the several states of the Union over the water boundaries separating them from other states includes the promulgation of such legislation extending over such boundary waters, and the enforcement thereof in the manner prescribed by such legislation, whether by courts or by executive officers, is supported by the whole current of authority, and, so far as my examination has gone, is denied by no decided case. In McFall v. Commonwealth, 2 Met. (Ky.) 394, it is said, “Jurisdiction, ... as used in the compact (for concurrent jurisdiction), imports nothing more than the power to govern by legislation,” and in that case was sustained a conviction of an Ohio justice of the peace for solemnizing a marriage midway upon the Ohio river, contrary to the statutes of Kentucky, for the reason, expressly stated, that no statute of Ohio expressly authorizing him so to do had been pleaded or shown. In Carlisle v. State., 32 Ind. 55, it was held that the statutes of Indiana prescribing the facts which should constitute murder, and the punishment therefor, applied to an offense committed outside of its territorial boundary, but upon the Ohio river, over which that state has concurrent jurisdiction. In Sherlock v. Alling, 44 Ind. 184, and Memphis & C. P. Co. v. Pikey, 142 Ind. 304, 40 N. E. 527, it was held that the statutes of Indiana imposing liability in damages for negligently
I do not discuss what is made the basis for a considerable portion of the courts opinion, namely, the question whether -under any circumstances one state can prevent the obstruction and impairment of the usefulness of the river by permanent structures so affixed to the ground that they become, not river, but part of the solid territory of the opposing state, on which see People v. Cent. R. of N. J. 48 Barb. 478. I forego this discussion for the reason that the question is not here presented. It is ruled in the opinion, with my entire concurrence, that the placing of the net in the waters of this lake gave it none of the characteristics of such fixture; that it no more became a part of the land of Wisconsin than would a boat because anchored to the bottom, which was the case presented in Welsh v. State, 126 Ind. 71, 25 N. E. 883.
A suggestion was made in argument that, by recognizing the law of Minnesota as a justification to her officer, we
To summarize my view: This state, having decided that its concurrent jurisdiction enables it to define.and punish a crime upon boundary waters but in the territorial limits of Minnesota, cannot deny to that state the same right upon those waters.