Bond v. Wojahn

• Decision Date: 08 March 1955
• Citation: 69 N.W.2d 258,269 Wis. 235
• Parties: Clayton M. BOND, Respondent, v. Arthur W. WOJAHN, Appellant.
• Court: Wisconsin Supreme Court

Page 258

69 N.W.2d 258

269 Wis. 235

Clayton M. BOND, Respondent, v. Arthur W. WOJAHN, Appellant.

Supreme Court of Wisconsin.

March 8, 1955.

Lloyd D. Mitchell, Oshkosh, for appellant.

Gruhle & Fessler, Henry A. Detling, Sheboygan, for respondent.

BROADFOOT, Justice.

The following statutes are cited by the parties:

'[Sec.] 30.01(4)(c) The boundaries of lands adjoining waters and the rights of the state and of individuals in respect to all such lands and waters shall be determined in conformity to the common law so far as applicable. * * *'

'30.02(1) (b) It shall be unlawful to deposit any material or to place any structures upon the bed of any navigable water where no shore line has been established or beyond such shore line where the same has been established, provided, however, that the public service commission may grant to any riparian owner the right to build a structure, or to maintain a structure already built and now existing, for his own use, if the same does not materially obstruct navigation, or reduce the effective flood flow capacity of the stream or is not detrimental to the public interest. Upon complaint by any person, the public service commission shall hold a hearing thereon to determine whether or not such present structure, or one proposed to be built, does materially obstruct navigation, or reduces the effective flood flow capacity of the stream or is detrimental to the public interest.

'(c) It shall be unlawful for any riparian proprietor to extend his wharf or pier into navigable water beyond the dock line as established, if such extension materially interferes with, or obstructs navigation. Upon any complaint made to the public service commission said commission shall proceed to hold a hearing thereon pursuant to the provisions of section 30.02(1)(b).

'(d) All piers or wharves extending beyond the natural shore or the established shore line shall be so constructed as to allow the free movement of water underneath and in such manner as will not cause the formation of land upon the bed of the water.'

'31.25 Every dam, bridge or other obstruction constructed or maintained in or over any navigable waters of this state in violation of the provisions of this chapter or of chapter 30, and every dam not furnished with a slide, chute or other equipment prescribed by the commission, is hereby declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any citizen thereof.'

Chapter 30 of the statutes is entitled 'Navigation' and chapter 31 is entitled 'Water Power.' The italicized portions of the above statutes were added in 1949 and thereafter.

From the authorities cited in the briefs and from those cited in 39 O.A.G. 230 and an article by Adolph Kanneberg in 1946 Wis.Law Review, 345, the following general rules would be applicable:

When Wisconsin became a state the lands under the navigable streams located here were transferred to the state and the state was permitted to determine for itself to what extent it would retain and exercise its rights over lands under navigable streams. In Wisconsin, as a matter of state policy, the owner of the upland or shore bordering upon a navigable stream was given a qualified title to the center of said stream. Such title is subordinate to the rights of the state to secure and preserve to the people the full enjoyment of navigation and rights incident thereto, and the right of the state to improve the stream for navigation. In some respects the rights of riparian owners on navigable streams and navigable or meandered lakes differ, but one of the common rights is the right to build a pier in front of his land a sufficient distance to reach actually navigable water.

Originally the legislature regulated the respective rights of riparian owners and of the public. The legislature itself granted franchises or permits for the construction of dams and log booms in particular. Later this authority was vested in the railroad...