Bino v. City of Hurley

• Decision Date: 01 May 1956
• Citation: 76 N.W.2d 571,273 Wis. 10,56 A.L.R.2d 778
• Parties: , 56 A.L.R.2d 778 John BINO, Sr., et al., Appellants, v. CITY OF HURLEY, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 571

76 N.W.2d 571

273 Wis. 10, 56 A.L.R.2d 778

John BINO, Sr., et al., Appellants, v. CITY OF HURLEY, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

May 1, 1956.

The plaintiffs appealed from the judgment.

Clarence V. Olson, Ashland, Walter T. Norlin, Washburn, for appellants.

Alex J. Raineri, Hurley, for respondent.

STEINLE, Justice.

Appellants' challenge is directed against the provisions in the ordinance which prohibit the use of the lake for bathing, boating or swimming purposes. No attack is made upon the ordinance in so far as it prohibits the depositing of refuse, decayed vegetable or animal matter and the like in the lake, nor drainage therein from cesspools, sewage disposal units, and such.

Riparian owners have a right to the use of the shore line of their property. They also have a right to the reasonable use of the water of the lake. The latter right, like the former, is a property right. It carries with it the privilege to use the lake for bathing, swimming and boating purposes.

Here, neither the appellants' predecessor in title, nor appellants, ever divested themselves of the riparian rights. Under the grant to the city, riparian rights were reserved to the owner. It was expressly agreed that the riparian rights were not conveyed to the city.

Appellants contend that the city's denial to them by ordinance of the use of the lake for bathing, boating and swimming, constitutes the taking of their property without due process and without compensation. They submit that under the contract they never surrendered any part of their riparian rights to the city, and that the city may not validly, under the guise of police power, extend the contractual rights acquired and exercised by it in its proprietary capacity. In the alternative, appellants maintain that were the ordinance to be declared valid, nevertheless, under the facts of the case, the ordinance constituted an unreasonable exercise of the police power of the city.

It is the city's position that the parties to the grant intended that there be reservation to the grantor of rights to the shore line, but not to the water of the lake. Further, the city submits, that its ordinance in all particulars, including the provisions which prohibit swimming, boating and bathing is designed to keep the water of the lake uncontaminated, thereby protecting the city's supply from contamination and safe-guarding the public health. It is further contended that the ordinance is valid, and that it does not constitute an unreasonable exercise of police power.

The trial court made no finding that the grantor reserved only the riparian right to the shore line and not to the water. There is no bill of exceptions.

In its memorandum decision the trial court cited and analyzed a number of cases from other jurisdictions in which the constitutionality of ordinances forbidding swimming and bathing in lakes and other waters used by municipalities for water supply purposes, had been challenged. Amongst the cases noted by the court were those of People v. Hulbert, 1902, 131 Mich. 156, 91 N.W. 211, 64 L.R.A. 265; State v. Morse, 1911, 84 Vt. 387, 80 A. 189, 34 L.R.A.,N.S., 190; and State v. Heller, 1937, 123 Conn. 492, 196 A. 337. In People v. Hulbert, the Supreme Court of Michigan held unconstitutional an ordinance which prohibited bathing in a lake lying wholly in the city of Battle Creek from which the city drew its water supply. The city was a riparian owner possessing 200 feet of lake shore, the balance of the shore line being owned by private persons who used the lake for swimming, fishing, etc. In that case the court said [131 Mich. 156, 91 N.W. 218]:

'Each proprietor has an equal right to the use of the stream for the ordinary purposes of the house and farm even though such use may in some degree lessen the volume of the stream, or affect the purity of water. * * * This right is not affected by the fact that the lower proprietor is a municipality instead of an individual. * * *

'It may be conceded that the police power of the state is very broad, but our attention has not been called to any principle of law, or to any case, the practical application of which will enable a village, city, or other municipality, for the purpose of obtaining a water supply to prevent the ordinary and reasonable use of the waters of an inland lake or stream by an upper riparian proprietor, without the exercise of the right of eminent domain or without compensation.'

In State v. Morse, the Supreme Court of Vermont held constitutional and valid an order of the State Board of Health which prohibited bathing and swimming in a navigable pond from which the city of Montpelier took its water supply. The shore line was occupied by the city and by a number of other owners. It was there stated [84 Vt. 387, 80 A. 194] that:

'Turning again to the case in hand, we are not satisfied and cannot say that the regulation prohibiting bathing in Berlin pond was a palpable violation of respondent's rights; nor can we from the record, aided by facts of which we may take judicial notice, say that such prohibition was unnecessary or unreasonable. On the contrary, we take notice of the germ theory of disease, and that the human body may give off germs dangerous to the public health, and that, should these reach the intake of the water supply, they might, as suggested by the State Board, spread contagion throughout the city.'

In State v. Heller, the Supreme Court of Connecticut noted that upon substantially the same factual situations, the courts of Michigan and Vermont (in the cases above referred to) had reached diametrically opposite conclusions. The Connecticut court determined to follow the ruling of the Vermont court. The report of the Connecticut case indicates that the defendant owned land across which flowed a creek that drained into a reservoir, the latter of which was used as a part of the city of Bridgeport's water supply, being furnished through a utility. A statute prohibited anyone from bathing in a stream tributory to a reservoir from which a city obtained its water supply. The defendant was charged with violating the statute. He contended that as an owner of land abutting the stream he was unconstitutionally deprived of his property through the operation of the statute. The court sustained the constitutionality of the state. In part it was said [123 Conn. 492, 196 A. 339]:

'It is unquestioned that the defendant as riparian owner had a right which included ordinary and reasonable bathing privilege in this brook by himself, his family, and inmates and guests of his household. * * * [the statute] can only be sustained as an exercise of the State's police power. Furthermore, it is not disputed that the object of the statute in question is to protect the health of citizens using water distributed through these reservoirs, and that thus its purpose affords a proper basis for the exercise of the police power inherent in the Legislature. * * *

'* * * '(the police power) may regulate any business or the use of any property in the interest of the public health, safety, or welfare, provided this be done reasonably. To that extent the public interest is supreme and the private interest must yield. Eminent domain takes property because it is useful to the public. The police power regulates the use of property or impairs the rights in property because the free exercise of these rights is detrimental to public interest. * * *''

In the case at bar the city acts in a proprietary capacity in withdrawing water from the lake and in supplying its inhabitants with the water. In Eau Claire Dells Imp. Co. v. City of Eau Claire, 1920, 172 Wis. 240, 179 N.W. 2, the court held that in operating a water works system a city acts in a proprietary capacity and not in a governmental capacity, and that in such operation the city is governed by the same laws which apply to private corporations.

It cannot be held that the original grantor did not reserve its riparian rights with reference to the water in the lake. In the grant there is no specification that the city is entitled to withdraw water from the lake that has not been used in the ordinary exercise of riparian owners' rights including bathing, boating and swimming.

We share the view indicated by the Michigan court in People v. Hulbert, supra, that had the city desired to prevent the ordinary privileges compatible with riparian rights, including bathing, boating and swimming, it ought to have contracted for the acquisition of the same or should have acquired by eminent domain the property to which the rights attached.

The situation in the present case is controlled by the principle laid down in Allen v. City of Detroit, 1911, 167 Mich. 133 N.W. 317, 320, 36 L.R.A.,N.S., 890. There, the City of Detroit purchased a lot in a subdivision restricted to residences, and undertook to build a fire engine house thereon. The court held that the city could not erect a building which would be in violation of the restriction, without release from the other lot owners or condemnation of their interests. The court said:

'Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; the validity of such restriction not being affected by the character of the parties in interest. * * *

'The contention that the city under its general police power may ignore this building restriction, and erect its fire engine house within the restricted district because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power, and becomes an act of eminent domain governed by the appropriate condemnation laws. ...