Thomas v. Ashland, Siskiwit & Iron River Logging Railway Co.

122 Wis. 519 | Wis. | 1904

Dodge, J.

Appellant’s argument is apparently addressed! not so much to anything which the court has adjudged as to-the scheme of boundary lines contended for by certain surveyor witnesses. There is, however, nothing to indicate that the court adopted their views. Indeed, the court has made no finding of fact as to the location of lines separating plaintiff’s rights of access to navigable water from those of defendant. The sole point adjudged is that defendant’s pier, as now constructed, does not invade plaintiff’s riparian rights. This may be true upon any of several theories as to where are the proper limits of this cove, or as to the proper manner of extending lines from shore boundaries to line of navigability.

The rules of law governing delimitation of rights of shore owners to use of shallows intervening between them and practically navigable water — especially in case of a cove or irregularity in the shore, or marked variation of the course of the shore line from the line of navigability — have recently been so clearly expressed in the now leading case of Northern P. L. Co. v. Bigelow, 84 Wis. 166, 54 N. W. 496, that extended research for authority or discussion of the question would be work of supererogation. The rule there stated is to the effect that every shore owner, as against other owners, is entitled to his proportion of the line bounding navigable water for contact with, navigation, and to a direct course over intervening shallows to construct piers or other structures connecting the shore with such navigable line; that, when the irregularities or curvature of the shore are such that lines cannot be drawn at right angles to the shore to accomplish this, then the whole cove is to be treated as a unit of the shore line by drawing such perpendicular lines from its two boundary points or headlands to the line of navigability, and then apportioning the whole intervening boundary line of navigable water to the whole shore line of the cove between such headlands, and by drawing straight lines from the two termini of each so apportioned share of navigable water line to the respective termini of the corresponding shore line pertaining to each owner. But the dominant rule is that each must have his due proportion of the line bounding navigability and a course of access to it. from the shore exclusive of every other owner, and that all rules for apportionment or division are subject to such modification as may be necessary to accomplish substantially this result. Northern P. L. Co. v. Bigelow., supra; Blodgett & D. L. Co. v. Peters, 87 Mich. 498, 49 N. W. 917; Rust v. Boston M. Corp. 6 Pick. 158, 169; Deerfield v. Arms, 17 Pick. 41; Walker v. B. & M. R. R. 3 Cush. 1, 24; Tappan v. Boston W. P. Co. 157 Mass. 24, 29, 31 N. E. 703; Elgin v. Beckwith, 119 Ill. 367, 10 N. E. 558; 3 Farnham, Waters, 2471 et seq.

The surveyors expressed opinions in favor of the points A and B on accompanying first plat as the limits of the cove; conceding, however, that the angle of the shore line is more acute at either D or E than at B, and that the practical parallelism of navigability to shore line extends inward to C on the south and to D on the north, so that the cove, as indicated by a greater extent of shallow water, is more properly limited by the points C and D. It might well be conceded, as appellant contends, that the A to B theory of the cove limits could not be sustained by the court, for an apportionment upon that theory would result in cutting off several hundred feet of plaintiff’s shore line from any access at all to water, navigable or not, thus infringing the dominant rule above stated. But it appears that he can secure both access to and proportionate frontage on the navigable water by the method prescribed in the Bigeloiu Gase if either O and D or C and E are adopted as the cove limits, and that all other shore owners within the cove, so limited, can be protected in similar rights. It also appears without dispute that in either such case the defendant’s wharf ds wholly outside of the lines connecting plaintiff’s shore with the line of navigability. Thus it appears that, unless some other plan is absolutely required by law, plaintiff’s riparian rights are not invaded by defendant’s structure, and the judgment merely dismissing the complaint is right ultimately, whatever may have been the reasons inducing it.

Some, though not very earnest, contention is made in favor of E and A as cove boundaries, from which would result a division line between plaintiff and defendant on which the wharf does infringe slightly; but to this arrangement there is the objection that no apportionment to all the shore owners is possible by straight lines, hence it is not to be adopted in presence of any other feasible theory.

Appellant also contends that the true cove is limited by the points E and G, but that lines bisecting the shore angle at each of these points would intersect before reaching navigable water, so that no navigable water line would exist for apportionment under the rule of the Bigeloiu Case; hence he argues that a method should be adopted which has sometimes, ex necessitate, been applied to shut-in or bottle-shaped coves, where direct lines could not be drawn from all parts of the shore to navigable water. That method is to draw a base line across the entrance or mouth of the cove, apportion that base line proportionately among the shore owners, and then run lines from the termini of each owner’s portion of the base line out to the line of navigability, which is divided proportionately to tbe respective shares of the base line. Rust v. Boston M. Corp. 6 Pick. 158, 168; Walker v. B. & M. R. R., supra,; Wonson v. Wonson, 14 Allen, 71; Tappan v. Boston W. P. Co. 157 Mass. 24, 29, 31 N. E. 703. While in some instances it may be necessary to the protection of riparian owners’ rights to depart from the method of apportionment and delimitation prescribed by the Bigelow Oass, we have no inclination to vary or obscure that rule, unless such variation is nee--essary to substantial equality. The evidence fails to show any such necessity here. By adopting either O and D, or A and D, or O and E as the limits of the cove, a substantially equitable apportionment can be made by the rule of that case. Besides, there is nothing in the testimony to warrant the view that G can with any propriety be considered a headland or terminus of this cove, while idle maps in evidence indicate quite the converse. From them it appears to be the very center or head of the indentation into the shore.

We cannot avoid the conclusion-that the record wholly fails to show that the trial court’s decision was erroneous.

By the Court. — Judgment affirmed.