Club v. Anderson

• Decision Date: 10 January 1899
• Parties: MENDOTA CLUB v. ANDERSON ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 479

78 N.W. 185

MENDOTA CLUB

v.ANDERSON ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Dane county; Robt. G. Siebecker, Judge.

Action by the Mendota Club against Otto Anderson, Jr., and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This action was commenced October 15, 1897, to restrain the defendants from going upon the premises described, with skiffs or boats or otherwise, for the purpose of hunting or shooting wild ducks or other wild fowls or game; and the plaintiff claims to be the exclusive owner of such premises, and that the defendants were trespassers thereon. The defendants, answering upon the merits, deny the plaintiff's title to the premises, and allege, in effect, that such premises were mostly covered with water, and constituted a part of Lake Mendota, and that the defendants, in common with others, only went thereon with boats to fish and shoot duck and other wild fowl. The premises in question are on the north end or side of Lake Mendota, and west of what is or was the channel of Catfish creek, and south of Six Mile creek, which runs east and west, and empties into Catfish creek near the center of section 27; the premises being what would constitute a part of the S. W. 1/4 of section 27, and the S. E. 1/4 of section 28, in the town of Westport. The cause having been tried, the court found, as matters of fact, in effect: (2) That the plaintiff was incorporated December 7, 1891, for shooting, fishing, and exercise, and empowered to buy, lease, own, occupy, and possess real estate for such purposes. (3) That, prior to 1836, sections 27 and 28 were surveyed by the United States, and Lake Mendota meandered, and that by such survey those sections were divided into the usual government subdivisions. (4) That the plaintiff has a complete chain of record title to the description contained in the deeds offered in evidence. (5) That the plaintiff has not had possession of any part of the S. W. 1/4 of section 27, or of any part of the S. E. 1/4 of section 28, or exercised acts of ownership thereon, except it had for several years employed a watchman to look after the premises, and its other premises in the same locality, and planted celery seed, corn, and feed for wild ducks, and put up signs in and around the premises warning trespassers away from the same, and ordering away persons hunting in boats upon the premises in question. (6) That the map Exhibit E was correct; that Lake Mendota is a navigable lake, some 25 miles in circumference; that such lake was meandered by the United States prior to 1836; that a portion of such meandered line constituted the south line of the premises in question, and the same was in the segment of a circle, with the south lines of such sections projected for the chord and the arc extending northward; that extending from Catfish creek, near the center of section 27, is a channel commonly known as the “Catfish Channel,” running southward into the body of the lake; that such channel at its mouth is about 200 links wide; that the premises in question are at the west of that channel, and west of the north and south line through the middle of section 27; that all the west of that channel and south of Six Mile creek was water at or about the time of the commencement of this action, when the waters of the lake were at an exceptionally low stage, except that there existed near the mouth of Six Mile creek a piece of bog land known as “Crescent Bog,” and also except that there was a considerable space immediately south of Six Mile creek, and in the N. E. 1/4 of the S. E. 1/4 of section 28, and a small portion in the N. W. corner of the N. W. 1/4 of section 27, and here and there patches, where green vegetation extended from the ground through the water. (7) That what is known as “Farwell Dam” was completed during 1850, at the outlet of Lake Mendota, on the south side thereof. (8) That prior to the erection of that dam there was a sand bar extending from at or near the high land, easterly of the south end of Catfish channel, westerly to the east side of the south end of the channel, and extended from the west side of the south end of the channel, in a westerly direction, towards dry land to the west; that the bar, before the erection of the dam, was exposed above the surface of the water for a considerable distance from the west side of the channel, but not for the whole distance to the west shore, at the west; that before the dam was erected, and at ordinary stages of water, a portion of the bar west of the Catfish channel was submerged and covered by water to such a depth as to permit rowboats to pass from the body of the lake south of the bar to the water north thereof, as stated. (9) That the precise location of the bar with respect to the meandered line, before the erection of the dam, is not shown by the testimony, but that, as the same now exists, portions thereof, both in sections 27 and 28, are considerably to the north of the meandered line, following the meandered line in a general way, though at some places considerably nearer the line than at other places. (10) That, as the bar approaches the shore at the west, the same flattens out and becomes indistinguishable for a considerable distance before it reaches the west shore line. (11) That before the erection of the dam there was water upon a considerable portion of the area covered by, and included within, the government survey of sections 27 and 28, where water existed at the time of the commencement of this action, and a portion of the area so covered with water contained bogs, and a portion thereof adjacent to or near the west side of the Catfish channel was hard land, with grass growing thereon, but aside from the boggy portions and hard lands, and aside from the bar, an area nearly as large as is now covered by water could not, before the erection of the dam, be used for agricultural purposes. (12) That after the erection of the dam the waters of the lake were raised to some extent, and the dry land referred to was somewhat lessened in extent, so that a less portion of the bar, and the land upon which grass grew, near the Catfish channel, remained exposed in the ordinary stages of water. (13) That since the erection of the dam the depth of the water in the area north of the meandered line, at ordinary stages of water, has varied from shallow water in certain places to the depth of a number of feet in other places. (14) That the Catfish creek is a navigable stream, and is and has been navigable for all such boats as are commonly used upon the lake. (15) That since the erection of the dam the area of the water west of the Catfish channel, and south of Six Mile creek, described, is and has been continuously navigable for rowboats and sailboats, and has been continuously used for navigation by small boats, in connection with hunting, boating, and fishing. (16) That, on one or two occasions in each of the years 1895, 1896, and 1897, the defendants were upon the area of water last mentioned, and north of the bar, and within the limits of the S. W. 1/4 of section 27, and the easterly part of the S. E. 1/4 of section 28; that on one of the occasions they stood upon one of the exposed portions of the bar in section 27, but there is no evidence that the portion of the bar on which they so stood constitutes a part of the premises claimed by the plaintiff; that on all other occasions they were in their boats upon the waters north of the bar described. (17) That on the occasion when the defendants were at such places they were engaged in hunting wild ducks; that, in so hunting wild ducks, the defendants on the occasions were accustomed to row their boats into bunches of rushes or vegetation, which in places arose above the surface of the water, in order that they might be concealed by such rushes or vegetation from the wild ducks flying over them, and were accustomed to place decoys about their places of concealment, but in so doing did no injury to any rushes or vegetation there growing.

And, as conclusions of law, the court found, in effect, that the area of water where the defendants were found shooting at the time in question is a part of Lake Mendota, and that, though the plaintiff has established a record title, no right has vested in it, to the exclusion of the public, to use this body of water for the purpose of fishing, hunting, and boating, and that for this reason the relief demanded should be denied, with judgment for costs in favor of the defendants. From the judgment entered thereon accordingly, the plaintiff brings this appeal.

R. M. Bashford and Frank M. Wootton, for appellant.

Otto Anderson et al., pro se.

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

The evidence is voluminous, covering nearly 200 printed pages. No attempt will be here made to analyze such evidence or to discuss it in detail. The defendants except to the fourth finding of fact, wherein it is found that “the plaintiff has a complete chain of record title to the description contained in the deeds offered in evidence.” Such exception by the respondents is, of course, permissible in support of the judgment. Section 3070, Rev. St. 1898; Maxwell v. Hartmann, 50 Wis. 664, 8 N. W. 103;Hoey v. Pierron, 67 Wis. 262, 30 N. W. 692;Hackett v. Telegraph Co., 80 Wis. 187, 49 N. W. 822. To support such title the plaintiff relies upon the facts that the S. W. fractional 1/4 of section 27, and the S. E. fractional 1/4 of section 28, were entered in 1836 by one Lyon; that a patent was issued therefor to one Nicholas, as grantee of Lyon, August 10, 1837, and the same was recorded May 26, 1840; that L. J. Farwell gave a quitclaim deed thereof to one Ring, in 1851; that Nicholas gave Farwell a warranty deed thereof in 1854; and that each of such conveyances was recorded about the times they were, respectively, given; but no conveyance is shown from Ring, nor from Farwell, aside...