94 Wis. 642 | Wis. | 1897
The question whether at the time of the conveyance from Taylor to Waterman (September 22, 1858) the premises described therein extended to the waters of the late at ordinary low-water mark was purely a question of fact, upon which the evidence is conflicting, and the finding of the trial court is challenged on the ground only that it is against the clear preponderance of the credible evidence. The boundary of Taylor’s lands on the east was the shore of Lake Michigan, and if, after satisfying the calls in the deed from Taylor to Waterman, there remained a strip of land between the land so conveyed by Taylor to Waterman and the waters of the lake at low-water mark, then Waterman did not acquire the rights of a riparian owner on the lake, but such rights were retained by Taylor. By low-water mark we understand that where the level of the lake, or other body of water, is- not constant, but is fluctuating, ordinary low-water mark is intended (Diedrich v. N. W. U. R. Co. 42 Wis. 248), or the line or level at which the waters of the lake usually stand when free from disturbing causes (Seaman v. Smith, 24 Ill. 521). If the eastern line of the grant to Waterman was in fact substantially coincident with the shore of the lake at low-water mark, then the fact that no mention was made of the lake as a boundary will not overcome the presumption of the intent to convey to low-water mark of the lake (Norcross v. Griffiths, 65 Wis. 610), unless a contrary intention is manifest from the language of the deed. It is somewhat singular that in describ--
This is a legal action, and the findings of the trial court will not be set aside or disregarded unless the record shbws them to be clearly contrary to the preponderance of the evidence. Althouse v. Baldwin, 56 Wis. 398, and previous cases there cited; Zimmerman v. Chambers, 79 Wis. 23, 24. Particularly is this true where the evidence is conflicting, and involves the question of the credibility of witnesses. Briggs v. Hiles, 87 Wis. 438. The present case illustrates in an especial manner the wisdom and importance of the rule. The vital point in issue is as to the location of the ordinary low-water line of the lake at the time when the deed from Taylor to Waterman was executed, and the contro versy relates to a small piece of ground on the south side of the harbor at Eacine, which was formerly on the north side of Eoot river, near where it entered the lake, and which was formerly the point of entry and departure of vessels. The land immediately adjoining was low and sandy, and the southerly current of the lake, by alluvial deposits, had. turned
These facts serve to illustrate the great difficulty of showing what was the ordinary low-water mark at any given period as remote as September 22,1858, the date of the conveyance in question, by the memory of living witnesses. Under such circumstances, each party is able to produce a very considerable amount of evidence, to satisfy the requirements of his case, from honest and truthful witnesses, but without approximating, perhaps, very nearly to? the real point in issue. Upon the question whether there remained a strip of land between the premises granted by Taylor to Waterman and the lake shore at low-water mark, the examination of twelve witnesses on each side was allowed. The evidence is voluminous, and took a wide range, involving the memory of witnesses in relation to the particular point, and those collateral thereto, the conduct and acts of parties interested, and certain physical facts relied on upon either side.
It would serve no useful purpose to make a condensed statement, or to enter upon a discussion Of the evidence with a view to determine whether it preponderates in favor of the plaintiff or defendant. The trial judge had facilities for determining the credibility and weight due to the testimony of each witness, having heard them testify, and abundant opportunity for viewing the premises, and the situation and
Beyond this general recapitulation, further statement is not material. The inherent difficulty of ascertaining whether the finding is against the clear preponderance of the evidence, from the evidence as it appears in this court, and .from the numerous plats, plans, and sketches, renders further discussion unprofitable. After a careful consideration of the evidence as it appears in the record, we cannot undertake to say that there is a clear preponderance of the. evidence against the finding of the trial court, such as would justify us in reversing the judgment appealed'from. As already observed, we are without the means and advantages which the trial court had to test the weight and credibility of the testimony of witnesses in relation to conditions and occurrences so remote from the time of trial, and which, if of recent date, would still be involved in considerable doubt and obscurity, rendering the vital question in the case difficult of solution. For these reasons, therefore, the judgment of the circuit court must be affirmed.
By the Court.— The judgment of the circuit court is affirmed.