N. Pine-Land Co. v. Bigelow

• Citation: 54 N.W. 496,84 Wis. 157
• Parties: NORTHERN PINE-LAND CO. v. BIGELOW ET AL.
• Decision Date: 31 January 1893
• Court: United States State Supreme Court of Wisconsin

84 Wis. 157

54 N.W. 496

NORTHERN PINE-LAND CO.

v.BIGELOW ET AL.

Supreme Court of Wisconsin.

Jan. 31, 1893.

Appeal from circuit court, Bayfield county; J. K. Parish, Judge.

Action by the Northern Pine-Land Company against A. A. Bigelow & Co. to determine the riparian boundary or division line between the holdings of plaintiff and defendants in the shallow waters of Chequamegon bay, Lake Superior. From the judgment establishing such line, defendants appeal. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

The complaint alleges, in effect, that the plaintiff is the owner in fee of a strip of land of about 1,200 feet frontage on Chequamegon bay, on Lake Superior, and being between said bay and the Chicago, St. Paul, Minneapolis & Omaha Railroad Company, and bounded northeasterly by the section line between sections 5 and 6, and southwesterly by a line parallel to it, all being in Washburn, Bayfield county, Wis.; that the defendants are the owners in fee of a similar strip of land, joining it on the northeast, and having a frontage on said bay of about 1,200 feet, and being between said bay and said railroad, and bounded on the west by said section line, and on the east by a line parallel to it; that the plaintiff and defendants each have and operate large and expensive mills on their respective parcels of land, and each have constructed, and now maintain, a dock extending from their respective parcels of land into the waters of said bay, to the navigable portion thereof,--that is to say, where the same is 16 feet in depth,--in aid of navigation, for the purpose of storing thereon, and shipping therefrom by water, the lumber manufactured by said mills respectively; that the directions of said docks, so projecting into the water, are shown by the maps annexed; that said mills are respectively situated on the indentation of said bay, about one mile in depth, and having a shore line of about nine miles in length, the curvature of the shore of said indentation being in general slight and regular, as shown by the map in evidence; that said lands of the respective parties are indispensable to their respective mills, and are valuable chiefly because they border on the waters of said bay, and afford piling, storage, shipping, boomage, and dockage facilities for said sawmills; that the defendants are encroaching on the water frontage of the plaintiff, and upon its riparian rights; and it demands judgment fixing the riparian boundary line between said parcels of land, from the shore to navigable water in front thereof. The answer consists of admissions, denials, and counter allegations. At the close of the trial the court found, as matters of fact, in effect, that the allegations of the complaint are all true; that in 1886 Rood & Maxwell entered into the possession of the lands of the plaintiff under a ten-year lease from the plaintiff, and built the sawmill and docks now situated thereon in 1887; that the defendants claimed that the boundary line between their property and the plaintiff's was said section line extended into the lake; that in January, 1887, Rood & Maxwell, desiring to get 240 feet of the frontage east of said section line, so that they could have room to locate their mill, agreed with the defendants that in consideration of their allowing the defendants to run their logging railroad through said land, the said Rood & Maxwell should have the water privilege so desired, to extend from the said section line at the shore into the lake 1,000 feet; that in pursuance of said agreement defendants drove a row of piles on said line out a distance of 1,000 feet, and for which Rood & Maxwell agreed to pay one half the expense; that the line on which said piles were so driven is marked on the map “Defendants' Line;” that the plaintiff's agent at Washburn was, by one of the defendants, informed of such agreement; that the defendants built their docks without consulting the plaintiff; that the town-site company of whom the defendants purchased the property where said docks were built had informed the defendants that the boundary line run with the section line; that before the commencement of this action Rood & Maxwell assigned their interest in said lease to the Northern National Bank, by chattel mortgage, and the bank sold the same to Cook, Griggs & Boutin, and they transferred the same to the plaintiff; that Exhibit B, attached, gives the general contour of the bay; that Exhibit X, attached, is a map made by the agreement of the parties under the direction of the court, and shows the meander line of the government survey of the shore of that portion of the bay in question, and designates the same by the letters, A, B, C, and also the line of navigable water in front thereof, and designates the same by the letters, D, E, F, and, for the purposes of the decision, considers the waters between the two lines as “a cove;” and said Map X also gives the situation of the lands of the respective parties to the bay, and to each other, and the general condition and situation of the land and water, as referred to in the opinion. And as conclusions of law the court found, in effect, that the boundary line between the respective parties, so far as their riparian rights are concerned, is as follows: Beginning at the point where the section line between said sections intersects the meander line of the waters of the bay; from thence south, 39 degrees and 28 minutes east, 2,472.3 feet, as indicated on Map X by line, B, E; that the dock of the defendants encroaches on the riparian rights of the plaintiff; that the said verbal agreement between Rood & Maxwell and the defendants is void, and not binding on the plaintiff; that the plaintiff is entitled to judgment in accordance with this finding, and the agreement of the parties fixing the boundary line between them; and for the removal of so much of defendants' dock as encroaches on the plaintiff's riparian rights, but without damages or costs, except one half the clerk's fees and state tax. From the judgment entered thereon the defendants bring this appeal.

Tompkins & Merrill, for appellants.

J. J. Miles and J. J. Jenkins, for respondent.

CASSODAY, J., (after stating the facts).

It appears from the map, Exhibit X, constituting a part of the findings herein, as mentioned in the foregoing statement, that the point of intersection of the line between sections 5 and 6 and the meander line of the government survey of the shore of the bay is thereon designated as B; that 3,745 feet northeasterly from the said point, B, along said meander line, is a headland projecting slightly into the bay, and designated thereon as C; that 9,768 feet southwesterly from the said point, B, along said meander line, is another headland, projecting slightly into the bay, and designated thereon as A; that the said meander line, A, B, C, is 13,513 feet in length, and, although irregular, is nevertheless quite similar to the arc of a circle. It further appears from said map and said findings that navigable water, 16 feet deep, is reached at a point designated thereon as F, 850 feet from the said point, A, on a line south, 77 degrees east, and which line is about perpendicular to the trend of the shore at A in both directions,--that is to say, an equal division of the angle made by the change of the shore at that point; that navigable water, 16 feet deep, is reached at a point designated thereon as D, 920 feet from the said point, C, on a line south, 26 degrees east, and which line bears the same relation to the shore at C that the line, A, F, does at the shore at A; that the line of navigable water, 16 feet deep, from D to F, is 12,206 feet in length, and is irregular in its course, and almost constantly varying in distance from said meander shore line, A, B, C; that said line of navigable water, at the point designated thereon as E, is 8,823 feet from said F, and 3,383 from said D, along said navigable water line, and is 2,472 feet distant from the said point, B, which line, B, E, constitutes the division line between the parties hereto, as found by the trial court, and mentioned in the foregoing statement; that the point, E, was ascertained by the following proportion, to wit: The whole length of the meander shore line, A, B, C, is to the whole length of the navigable water line, D, E, F, as the length of the meander shore line, B, C, is to the length of the navigable water line, D, E. Such is the division line between these adjoining riparian owners from the shore to the navigable water of the bay, and the method by which the same was ascertained by the trial court. The correctness of such division line is challenged by counsel for the appellants. The great extent of the state's frontage upon the waters of Lakes Superior and Michigan, and other waters, makes the question presented of great importance.

In Cohn v. Boom Co., 47 Wis., 322, 2 N. W. Rep. 546, it is said by Ryan, C. J., speaking for the whole court, “that it is settled in this state that a riparian owner on navigable water may construct in front of his land, in shoal water, proper wharves, piers, and booms in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water. This is properly a riparian right, resting on title to the bank, and not upon title to the soil under the water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license by the public, is subordinate to the public use, and may be regulated or prohibited by law.” Such is undoubtedly the settled rule of law in this state. J. S. Keator Lumber Co. v. St. Croix Boom Corp., 72 Wis. 82, 38 N. W. Rep. 529. This being so, it necessarily follows that the parties to this action, as riparian owners, have the right, in aid of navigation, to construct, from their respective shores to the line of...