State v. Bowen

149 Wis. 203 | Wis. | 1912

Vihje, J.

In Roberts v. Fullerton, 117 Wis. 222, 93 N. W. 1111, it was held that the jurisdiction of a state for the enforcement of its fish and game laws is co-extensive with, and limited by, the boundaries of the state, even though they consist of the thread of a navigable stream over whose waters the adjacent states have concurrent jurisdiction for other purposes. The answer to the question reported, therefore, depends upon whether or not the boundary of the state of Wisconsin changed from the thread of the channel east of Minnesota Island to the thread of the channel west thereof by reason of the construction of the bridge and dam of the Chicago, Milwaukee & St. Paul Railroad Company about 1877, which diverted the waters into the west channel to such an extent that it afterwards became the main channel and the only one navigable by steamboats.

The district attorney of La Crosse county relies upon the cases of Franzini v. Layland, 120 Wis. 72, 97 N. W. 499, and Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, to sustain the contention that the boundary changed with the change of channel. Those cases establish the rule that within the limits of the main channel the boundary follows the “mid-channel” or thread of the stream as it changes from time to time owing to the gradual shifting of sand banks, or other causes. But they do not hold that the creation of a new and different main channel shifts the boundary from the old to the new. And such is not the law. Eor the purpose of determining the boundary between states where that is declared to be the center line, or thread, or middle of the main channel of a stream separating them, the conditions existing at the time of their creation govern as to what channel is meant. The then main channel, except as it may be changed by erosion or accretion, will forever contain within it the declared boundary line, though not necessarily in the same place at all times. Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396; Missouri v. Nebraska, 196 U. S. 23, 25 Sup. Ct. 155; Washington v. Oregon, 211 U. S. 127, 29 Sup. Ct. 47; S. C. 214 U. S. 205, 29 Sup. Ct. 631; 1 Farnham, Waters, § 7f, p. 40; Gould, Waters, § 159.

In Iowa v. Nebraska and Missouri v. Nebraska, supra, it is held that where a stream which is the boundary between two states from any cause suddenly abandons its old bed and seeks a new one, such change in the channel results in m> change in the boundary. That remains in the center of the-old bed or channel even though it may be dry. In each of those cases the change was caused by avulsion. In the present case the change was caused by the construction of a dam. It is obvious that any change wrought in the flow of the water-by means of a dam cannot affect the question of state boundary any more than can such change produced by avulsion. It, is only where the change takes place by the slow process of erosion or accretion that a ehange in boundary is effected. Missouri v. Nebraska, 196 U. S. 23, 25 Sup. Ct. 155. States and individuals alike are subject to the losses and gains of erosion and accretion, but neither can have the boundaries of his domain changed by avulsion or by ,the diversion of the-water effected by human agencies. New Orleans v. U. S. 10 Pet. 662. Such being the law, a negative answer to the question reported for decision is required. It is due to the attorney general to add that, for reasons stated in his brief, he-argues that no change in the state boundary was effected by the construction of the dam and consequent diversion of the .water into the western channel.

By the Gourt. — The question reported is answered No.