City of Madison v. Schott

Decision Date07 March 1933
PartiesCITY OF MADISON v. SCHOTT et al.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.

Action by the City of Madison against Michael Schott, Paul Wisowaty, and others. From an order overruling a demurrer to the complaint, Paul Wisowaty appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Action instituted by the city of Madison, as plaintiff, against the defendants, who are charged in the complaint with having deposited materials and erected structures upon the bed of Lake Monona. Plaintiff seeks to have such deposits and structures adjudged to be nuisances or purprestures, and to have them abated. A demurrer to the complaint was overruled, and one of the defendants appealed.Sauthoff & Hansen, of Madison (Stephens, Sletteland & Sutherland, of Madison, of counsel), for appellant.

Beatrice Lampert, Acting City Atty., of Madison (Theodore G. Lewis, of Madison, of counsel), for respondent.

FRITZ, Justice.

The city of Madison, as the sole plaintiff in this action, in its complaint seeks judgment establishing title to the bed of Lake Monona in the state of Wisconsin, in trust for public uses; declaring all structures on such lake bed to be nuisances and purprestures, and ordering them abated and removed; declaring that the defendants have no right, title, or interest in any filled-in land; and enjoining them from further use and occupancy of such land. As basis for that relief it is alleged in the complaint, in relation to each of the three proposed causes of action, that Lake Monona is located within the boundaries of the city of Madison, and is a meandered body of water, and is navigable in fact; that the title to the bed of Lake Monona to the original meander line, established by the federal government, and to the original water's edge, shore line or low-water mark, became vested in the state of Wisconsin upon its admission into the Union of the United States, and such title remained vested in the state of Wisconsin ever since, and the title now is in the state of Wisconsin in trust for the use of the public; that the defendants and others, their predecessors and grantors, have at various times and at various places filled in and deposited earth and other materials, and erected structures in Lake Monona and beyond the established meander line for purposes not in aid to navigation, thereby invading state lands and the public rights and creating a public nuisance and purpresture; that the defendants now occupy that filled-in land, or part thereof, between the original meander line or between the original water's edge and the present water's edge on said lake, and claim to have some right, title, and interest therein; that the occupancy of such lands, or any part thereof, by the defendants constitutes a public nuisance and purpresture invading the title of the state of Wisconsin and right of the public; and that the city of Madison has concurrent jurisdiction with the state of Wisconsin in the premises and may bring and does bring this action to restrain, enjoin, and abate the nuisances and purprestures hereinbefore mentioned. As additional basis for its second cause of action, plaintiff alleges that none of the defendants have ever been owners of land abutting Lake Monona at the places in suit, as the lake originally existed and prior to such artificial filling in thereof, or riparian owners, or owners of any riparian rights whatsoever abutting said lake at such places; and that they occupy such land as mere squatters upon lands owned by the state in trust for the public, and have erected structures thereon; and that such occupancy and use is unauthorized and an invasion of the rights of the state of Wisconsin and the public. And as additional facts for its third cause of action plaintiff alleges that pursuant to authority in law, the city of Madison has established a certain dock line in Lake Monona along the places in suit; that the defendants have filled in and now occupy land beyond said dock line in the waters and on the bed of Lake Monona, and have erected structures, not in aid of navigation, in the waters of the lake beyond such city dock line, invading thereby the title of the state of Wisconsin and the rights of the public; that such occupancy of such land in the waters of the lake beyond and outside of the established city dock line constitutes a public nuisance and purpresture; and that the land so occupied by defendants beyond such dock line established by plaintiff is within the distance represented by a dock line established and described in chapter 485, Laws of 1927.

[1] The assertion in those allegations that the title to the bed of the lake vested and continues in the state of Wisconsin in...

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13 cases
  • City of Juneau v. Badger Co-Operative Oil Co.
    • United States
    • Wisconsin Supreme Court
    • May 17, 1938
    ...injury to the city was proved, no case in favor of the city was established, and the complaint must be dismissed. See Madison v. Wisowaty, 211 Wis. 23, 247 N.W. 527. The judgment of the circuit court is reversed, and the record remanded, with directions to dismiss the complaint. 1. “Ordinan......
  • Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources
    • United States
    • Wisconsin Supreme Court
    • October 31, 1978
    ...beds of navigable waters is "vested and continues in the state of Wisconsin in trust for the use of the public." Madison v. Wisowaty, 211 Wis. 23, 27, 247 N.W. 527 (1933); Diana Shooting Club v. Lamoreux, 114 Wis. 44, 54, 89 N.W. 880 (1902). This "public trust" duty requires the state not o......
  • State ex rel. Chiarkas v. Skow
    • United States
    • Wisconsin Supreme Court
    • February 19, 1991
    ...cases which have addressed "legally protectible interests" have addressed tangible interests such as a lake bed, Madison v. Wisowaty, 211 Wis. 23, 247 N.W. 527 (1933), or profits from the sale of property, Klaus, 106 Wis.2d at 353, 316 N.W.2d 664, the statute itself calls for a liberal cons......
  • Town of East Troy v. Soo Line R. Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 3, 1980
    ...233 Wis. 82, 288 N.W. 809 (1939); Juneau v. Badger Cooperative Oil Co., 227 Wis. 620, 279 N.W. 666 (1938); City of Madison v. Wisowaty, 211 Wis. 23, 247 N.W. 527 (1933); City of Milwaukee v. Milwaukee and Beloit Railroad Co., 7 Wis. 85 (1858). Soo Line contends that the statute does not per......
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