100 Wis. 86 | Wis. | 1898
Lead Opinion
This is an action for trespass to recover $20 damages for taking fish, commenced in justice’s court. The defendant answered to the effect that he had a right to take the fish, and that the title to land would come in question, and gave the requisite bond, and the case was thereupon transferred to the circuit court,, where the cause was tried.
It appears from the record, and is undisputed, that at the times mentioned the plaintiff was a legally constituted corporation, duly organized and existing under the laws of Minnesota; that May 31, 1896, the plaintiff was the owner and in the possession of the 200 acres of land described; that the "Willow river was a stream or river, not meandered, flowing through and over said land and premises; that on or about June 1, 1896, the defendant, against the protest of the plaintiff and without its consent, entered upon said stream for the purpose of fishing therein, from the “ John Kelley road,” so called, a public highway which runs from John Kelley’s premises to said Willow river at a point where it is upon the plaintiff’s land, and from thence, by means of a boat, passed from said road upon and down said stream upon said premises in a boat, and from said boat, while the
At the close of the evidence the court directed a verdict in favor of the defendant, and from the judgment entered thereon plaintiff brings this appeal.
The precise question presented by the facts stated is whether the defendant, by stepping from a public highway into a boat upon the river, and while floating thereon, catching the fish in question from the river by hook and line, committed a trespass upon the premises of the plaintiff. The proper solution of the question depends upon the proper determination of one or more other questions discussed at the bar. Counsel for the plaintiff is undoubtedly correct in
In the case at bar it is conceded that the plaintiff owned the land on both sides of the stream, and hence has title to the bed of the stream. But the mere fact that the title to the bed of the stream is in the plaintiff is not necessarily conclusive that the plaintiff has title to the fish in the river. As indicated, at common law the public right of fishing in rivers was confined to such portions of the rivers as were covered by the ebb and flow of the sea. The reason why the public rights terminated, and the private rights began, just where the waters of the river ceased to be impregnated with salt and were entirely fresh, might be difficult to explain, were it not for the fact that the admiralty jurisdiction of the English courts over such rivers was also limited to such tidal waters; and, as stated in the portion of the opinion of Mr. Justice Bradley in Barney v. Keokuk quoted above, “ the only waters recognized in England as navigable were tide waters, . . . although the reason of the rule would equally apply to navigable waters above the flow of the tide,” upon which commerce might be carried on. Long prior to that decision, Chief Justice Taxey, in an able opinion, said: “There is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public navigable water, on
The doctrine of that case, to the effect that the admiralty jurisdiction of the federal courts, as granted by the consti
It is true that Willow river was not meandered, and the question recurs whether, from the undisputed evidence, we can say that it was a navigable stream within the principles of law mentioned, and especially the decisions of this court. It has frequently been held that the rivers of this state, capable of floating the products of the country — such as logs and rafts of lumber — to mill or market, are common public highways. Whisler v. Wilkinson, 22 Wis. 572. That rule was applied to the Kickapoo river, which was not meandered. Id. The same rule was applied to the Yellow river, which was not meandered. Sellers v. Union Lumbering Co. 39 Wis.
The question recurs whether the public right of fishery is included in, or an incident of, such public right of navigation. In other words, Has the plaintiff, as riparian owner, the exclusive right to take fish from the river ? The plaintiff certainly has no property in the particles of water flowing in the stream, any more than it has in the air that floats over its land. Its rights in that respect are confined to their use and to preserving their purity while passing. Lawson v. Mowry, 52 Wis. 234, 235. So, the fish in the stream were not the property of the plaintiff at common law, any more than the birds that flew over its land. State v. Roberts, 59 N. H. 256; Angell, Watercourses (7th ed.), § 65a, and cases there cited; State v. Welch, 66 N. H. 178. As indicated, the public right of fishery in tidal rivers was maintained, at common law, in England, before the use of steam,— when vessels could only be carried up the river by the flow of the sea, and down the river by the ebb of the sea,— and consequently when the ebb and flow of the tide practically measured the navigability of the stream. Eor the same reason, the public should have the right to fish in all the public navigable waters of the state, including all public navigable rivers and streams of the state. The supreme court of the United States, in a. recent case, partially adopting the language of the New Hampshire case cited, has declared that, “ at common law, the right of fishing in navigable waters was common to all. The taking and selling of certain kinds of fish and game at certain seasons of the year tended to the destruction of the privilege or right by the destruction consequent upon the unrestrained exercise of the right. This
Bij the Oov/ri.— The judgment of the circuit court is affirmed.
Concurrence Opinion
I concur with the decision of the court, but regard the opinion of the chief justice as being so framed as to lead to the belief that the common right of fishing in navigable streams in this state is a mere incident to the right of navigation, and that defendant is not liable because he was navigating the stream in a boat at the time of the act complained of; in short, that he was where he had a right to be in the exercise of the right of navigation, and there
So it will be clearly seen that to merely hold that the bed of a stream navigable in fact is subject to the easement of the public for that purpose, does not sustain the common right of fishing therein. Either a stream navigable in fact is public for all purposes, the same as tidal waters at common law, or the common right of fishing therein does not exist. Obviously, if the mere right of passage exists, it would no more follow that a person can stop by the way and fish or hunt, than that he can stop by the road side on a public highway and cut grass or wood, or do anything else not incident to the right of traveling thereon. That point has been many times decided, which is sufficiently shown by cases cited in the briefs of counsel in this case, notably that of Sterling v. Jackson, 69 Mich. 488, where the claim was that defendant was not liable as a trespasser while in a boat shooting wild fowls, though the land submerged by the water on which his boat rested belonged to the plaintiff, because it was navigable water. In regard to such contention the court said, in substance, defendant had no right to be there except for the purpose of navigating the water over the land; when he stopped for any other purpose, as to-shoot ducks, he abused his privilege and became a trespasser. Several cases are cited by the Michigan court, sustaining the position that the mere fact that a person is where he has a right to be on a navigable stream, if exercising the right of navigation, does not protect him if he does anything not incident to that right.
The foregoing makes it quite clear, in my judgment, that the right of public fishing cannot be sustained as a mere incident to the right of navigation, and that the opinion of the
It would be uninteresting, after all the chief justice has said, to go over at length the history of the common-law doctrine as to public and private streams, the location of the title to the beds of such streams, the reason therefor, to what extent such doctrine has been adopted in this country, and the peculiar reasons for the divergence of opinions of, and apparent conflicts between, different courts, so I shall content myself with general statements and few references to authorities, leading up to the conclusion that all navigable streams of this state were designed originally to be public for all purposes, and that their character in that regard has not changed, notwithstanding the state has, for some purposes, parted with the title which was vested in it, in its sovereign capacity, in trust for the preservation and protection of public interests. If the state had not surrendered any of its interests in such lands, but kept the same till the present time, solely for the use for which the same came to it at its organization, the question we now have before us would never have arisen. It would then be conceded without question, by all, that the title to lands under all navigable water within the boundaries of the state is in the state, and such waters public in the same degree as waters navigable at common law by the test of tidal character.
All the trouble and confusion regarding the public right of fishing in navigable streams has grown out of the fact that the title to the beds of such streams has been so generally declared, without qualifying words, to be in the riparian owner, that the real origin thereof, and the real nature of the private ownership, have come to be overlooked, and a mere qualified private title, consistent with the trustee capacity of the state for the public purposes of navigation and fishing, to be looked upon as an absolute title resting on, or
It is conceded that by the English rule the title of riparian proprietors on navigable streams extends only to ordinary high-water mark; that the title below that line is in the sovereign in trust for the benefit of the public; that as to land bordering on other streams the title extends to the thread thereof; and that navigable streams are only such as are affected by the tides without reference to navigability in fact. An examination of the subject under discussion will show that, whatever changes have taken place in regard to public waters, the principle has been uniformly maintained that, where the absolute ownership of the beds of navigable streams is private, such streams are held not to be public for any purpose; and so far as streams which, by the rules of the common law, were private are now deemed to be public, the title to their beds is in the state, or subject to that use, in harmony with the public rights, the same as at common law. The fiction of navigability tested by the tidal character of water has been rejected, and the test of navigability in fact substituted in place of it, only in harmony with the status of the title to the beds of the streams. In most of the original states the grants to private persons covered the beds of fresh-water streams, so the common-law doctrine almost necessarily prevailed there from the start. In New York, the court, in Hooker v. Cummings, 20 Johns. 90, held that the original grants on fresh-water streams conveyed to private owners the lands between the margins, with the exclusive right of fishing. That is quoted from extensively
Without going further into the subject just discussed, it
From the foregoing it follows that the real nature of the riparian proprietor’s title is the true test of the character of a navigable stream as public or private. If private ownership to any extent exists, it did not proceed from the United States under its patents. That has long been firmly settled. In Barney v. Keokuk, 94 U. S. 324, the court said that the beds of all streams navigable in fact vested in the new states upon their organization, and that if they chose to surrender
So we are safe in saying that the title to the beds of all navigable streams of this state passed to the state from the United States with all the incidents of public waters at common law, including the right of fishing as well as navigation. By what means has that title since changed, if at all, so far as the public is concerned ? It will not be claimed that the state has directly parted, or attempted to part, with its title, even if it could effectually do so. By what right, then, does the riparian proprietor claim title to the submerged lands under navigable streams, if not based on a direct grant from the general government or the state ? The answer, and only answer, is, by force of state policy so long declared by the court and submitted to as to become a rule of property which has worked a conveyance, so far as it reaches, as effectually and conclusively as if the title rested in grant. Such title proceeded from the state, however, by force of its policy, as a concession to the holder of the patent title, and became appurtenant thereto upon such title being conveyed by the government,— a concession not resting for its validity on any direct act of the state through its legislative body, but on mere state policy as declared by the court and acquiescence therein for so long a time that it cannot be changed without working great hardship. Therefore, it is said that the conduct
So the state now owns the beds of all navigable rivers between the lines of ordinary high-water mark on either shore, ©xcept in so far as the rule of property, established by state policy, has taken it away. If not taken away at all, no question as to the right of public fishing in such rivers would be raised, we may safely assume, as before stated. If not taken away, except subject to all the rights in common characteristic of public waters, then, as said by Dixon, C. J., in Wis. River Imp. Co. v. Lyons, 30 Wis. 61, it is quite immaterial whether the riparian owner’s title be considered to extend to the center of the stream or stop at the margin, for his situation, and that of the public, in such circumstances, would be the same as in case of the private ownership of lands in a public highway. While it is said that the title to such lands extends to the center of the highway, that does •notin any way interfere with the public use of the way, and so long as such public use is not interfered with, it is really immaterial where the legal title rests. It being understood all the time that the legal title is subject to the public use, its location with the adjacent owner, necessarily, is unimportant. So it may be said that the title of a riparian pro
We have now reached in this discussion the point where it is necessary to determine the extent to which the state has surrendered its title to submerged lands originally vested in it, and at the threshold of that we should inquire as to the power of the state to surrender its trust. Obviously, the mere declaration of a fact by the courts, so long adhered to without challenge as to give it effect as a verity and a rule of property, can go no further than the state could go pursuant to legislative authority. That much would seem to be self-evident, and taking it as a correct statement of the law, several decisions of this court seem to have decisively settled the question to the effect that the beds of navigable waters, which were once vested in the state as a trust for public purposes, have not been, and could not be, parted with, except subject to that trust. In McLennan v. Prentice, 85 Wis. 427, this court said, on that subject, that the right which the state holds in these lands is in virtue of its sovereignty, and in trust for the public purposes of navigation and fishing, and it cannot abrogate its trust in relation to them. Again, in the very recent case of Priewe v. Wis. State L. & I. Co. 93 Wis. 534, the court laid down the same doctrine, quoting with approval from McLennan v. Prentice, supra, and said that any attempt by the state to convey absolutely lands submerged by navigable waters, so as to abrogate its trusteeship in respect to the same, would be void on its face, or subject to revocation; that if such were not the case the state might relinquish to private ownership its rights in all the numerous navigable lakes of the state. True, in both cases the court was speaking of the beds of lakes, but the title of the state to submerged lands under navigable waters,
We might proceed at great length, citing decisions of other courts to show that the trust capacity of the state in respect to the beds of navigable waters cannot be surrendered, either directly or indirectly, but as we have shown that this court has twice spoken decisively on the subject, we may safely rest the matter there. The state may part with its title so far as the public interest is not interfered with, but no other disposition of it is valid. See, further, the following: 3 Kent, Comm. 427; Miller v. Mendenhall, 43
Now we have seen that “navigable waters,” as tbe term is applied bere, includes all waters navigable in fact; that the title to all lands under such waters was vested in the state at the time of its organization, in trust to preserve the public character of such waters, and that such character is the same as that of waters navigable' at common law; that whatever of such title the state has parted with has been surrendered, not by grant, but by mere force of state policy so long adhered to as to have the effect, as a rule of property, of vesting title in the riparian proprietor by implication of law; but that the state never possessed power to emancipate itself, directly or indirectly, from its trusteeship in such lands, except subject to the public purposes for which it was clothed with the title thereto. So, without questioning the doctrine that the title to lands adjacent to navigable streams extends to the thread thereof, obviously, it is a qualified title, because the state could not part with any other; and there is no sound reason to sustain the contention that any further surrender has been heretofore declared or attempted. The very fact that the judicial history of the state shows that the doctrine that the title of a riparian proprietor on a navigable stream goes to the center of the stream has been no more rigidly adhered to than that such title is subject to the public right of navigation, and that there is no declaration by this court, that can be pointed to, showing that the character of such streams, for any of the purposes incident to public waters, has been affected by any abdication by, the state of its trusteeship for such purposes; and the further fact that from the earliest history of the state down to the present time the public right of fishing in such streams has been a subject of regulation by legislative enactment, is proof conclusive,
The foregoing doctrine, promulgated as the doctrine of this court and firmly adhered to, will, without injury to private rights and without overruling anything previously said by the court, enunciate clearly, and maintain consistently, the true doctrine that the waters of the state belong to the state, not for one public purpose only, but for all public purposes originally designed, and which should have been, and should be, most carefully guarded. It is open to serious doubt as to whether the surrender to private ownership of the property of the state in submerged lands, to any extent, was not a mistake. Certain it is that such title, in all territory out of which this and other northwestern states were carved, was vested in them in trust for public purposes of the highest importance, which have grown, and are likely to grow, as time continues. Probably, if such importance had been fully foreseen at the start, the state’s interests would have been more rigidly and jealously guarded, and private ownership not been allowed to invade at all, either the pub-
To recapitulate in closing, the title to the beds of all navigable waters in this state was in the state originally in trust for public purposes, the same as the beds of streams navigable at common law; the state not only never has, but never can, legally abdicate that trust, or surrender such title, except subject to all the public uses for which it was created; and while it is true that the title to the beds of such streams is in the adjoining landowners by implication of law, it is just as true that such title is subject to the public character of the waters, the same as if no surrender of title had ever taken place. The public right of navigation, and the public right of fishing, both exist in such streams, each independ
Concurrence Opinion
I concur in the foregoing opinion by Mr. Justice Marshall.