Chandos v. Mack

• Decision Date: 14 October 1890
• Citation: 77 Wis. 573,46 N.W. 803
• Parties: CHANDOS v. MACK ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 573

46 N.W. 803

CHANDOS

v.MACK ET AL.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Wood county.Silverthorn, Hurley, Ryan & Jones, for appellants.

Gardner & Gaynor, for respondent.

COLE, C. J.

There is no dispute about the facts in this case, but the counsel disagree as to the law arising upon those facts. The action is ejectment, brought by the plaintiff's intestate, who claimed to be the owner, as riparian proprietor, of an island in the Wisconsin river, a navigable stream. She held and owned under various mesne conveyances the title derived from the general government of lot 4 in section 8 and lot 3 in section 17, township 22, range 6 east, which lots lie on the main west bank of the river, opposite to the island in controversy. She claimed that she was entitled to the possession of this island by virtue of the grant of the general government of lots 3 and 4 to those under whom she derived title, except as to certain rights which the defendants have under a deed that is mentioned in the evidence, but which does not affect any question in issue here. The island lies near the west bank of the river, as we have said, opposite lots 3 and 4; is west of the main channel and west of the thread of the stream, and also west of the main navigable portion thereof. It is separated from the west bank of the river by a narrow channel, or slough, which varies in width from 95 to 100 feet, and is separated from the east bank of the river by a channel which varies in width from 320 to 700 feet. The channel between the island and the west bank of the river has not been used since the settlement of the country for purposes of navigation, except to run out lumber manufactured at the mills on the main-land on the west bank. The portion of the river used for the purpose of navigation is the main channel east of the island. The island is about 1,250 feet in length, and varies in width from 70 to 300 feet; it is a rocky formation, covered with a thin, sandy soil, and was originally covered with timber, which has been removed. It lies up and down the river, nearly parallel with the thread of the stream. It is not overflowed in ordinary freshets, but is substantially submerged in extraordinary floods. The island contains between two and three acres of land. When the general government, by its agent, surveyed and platted lots 3 and 4, and the lands on either side of the river opposite the island, it made no survey or plat of the island, or of any part of it; nor has the government ever surveyed and platted it, although the location of the island is marked upon the government plat of the survey of the lands opposite and adjacent thereto. The government many years since disposed of all its lands on the river opposite and adjacent to the island, and there is nothing which tends to show that the government intended to reserve the island as a part of the public domain. The island is referred to in the field-notes of the meandered line, but it was not surveyed, though its location is marked upon a plat of surveys, so that the fact of its existence was not overlooked by the agents of the government when such surveys were made.

Now, the question in the case is, to whom does the island belong? Did it pass to the purchasers of lots 3 and 4 on the bank of the river opposite to it. The island lies between these lots and the middle of the river, and there is nothing to show, as we have said, that the government intended to reserve any right or interest in the island. As there was no such reservation, the presumption is that the government did include it, and pass all title to it to the purchaser. On the part of the plaintiff it is insisted that the title...