Club v. Wade

Citation76 N.W. 273,100 Wis. 86
PartiesWILLOW RIVER CLUB v. WADE.
Decision Date23 June 1898
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from circuit court, St. Croix county; W. F. Bailey, Judge.

Action by the Willow River Club against Frank Wade to recover damages for taking fish out of an unmeandered stream, the banks of which were owned by plaintiff. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Pinney, J., dissenting.

Baker & Haven, for appellant.

J. W. Bashford, S. J. Bashford, James A. Frear, and N. P. Haugen, for respondent.

CASSODAY, C. J.

This is an action for trespass to recover $20 damages for taking fish, commenced in justice court. The defendant answered to the effect that he had a right to take the fish, and that the title to land would come in question, and gave the requisite bond, and the case was thereupon transferred to the circuit court, where the cause was tried. It appears from the record, and is undisputed, that at the times mentioned the plaintiff was a legally constituted corporation, duly organized and existing under the laws of Minnesota; that May 31, 1896, the plaintiff was the owner and in the possession of the 200 acres of land described; that the Willow river was a stream or river, not meandered, flowing through and over said land and premises; that on or about June 1, 1896, the defendant, against the protest of the plaintiff and without its consent, entered upon said stream for the purpose of fishing therein, from the John Kelley Road,” so called, a public highway which runs from John Kelley's premises to said Willow river at a point where it is upon the plaintiff's land, and from thence, by means of a boat, passed from said road upon and down said stream upon said premises, in a boat, and from said boat, while the same was upon said stream at the points above and below said road, and within the boundaries of the premises described, fished for, caught, and took with hook and line from said stream, at said point on said stream, 10 fish called trout, of the value of one dollar, said fish then being and swimming in the water of said stream, and did carry said trout away, and applied them to his own use, against the will and protest of the plaintiff, returning from said Willow river by said road known as the John Kelley Road”; that Willow river is about 40 miles long in a direct line from source to the mouth, but about 70 miles long in the windings of the stream; that Willow River Falls is about 7 miles from the mouth of the river by a direct line; that the point where the defendant entered upon the river is about 1 1/2 miles below the falls, and within the back water of a dam erected about one-half a mile below, at Little Falls; that he entered upon the stream from a public highway known as the “Kelley Road,” where the river was 200 feet wide and from 8 to 10 feet deep; that from the early settlement of the country until 1882 logs were driven down the river upon freshets and by the aid of dams to St. Croix Lake; that after 1865 millions of feet of logs were so driven each year, but that since 1882 logs had only been driven down the stream to New Richmond, 18 miles above the mouth of the river, in a direct line; that, in the year 1895, 5,000,000 feet had been driven down to New Richmond; that below the main falls is a succession of rocky rapids; that persons had been up the river from Hudson to the falls several times in small row boats, once in 1853, and again in 1868; that in going over the rapids below the falls they used their oars as poles, and pushed from the bottom; that it was, and always had been, impossible, except in times of high water, to get up the stream as far as the main falls in an ordinary rowboat, without dragging or pushing it on the bottom of the river in numerous shallow places; that several streams flow into Willow river below New Richmond, and above the falls; that Ten Mile creek flows in below New Richmond, and runs a 30-inch wheel, which furnishes power for a gristmill at Boardman; that there is 30 to 40 per cent. more water below the falls than above and at a point above the point of the alleged trespass; that, at an ordinary stage of water in the river, the narrowest place below the falls was 33 feet in width; that the average width, according to measurement taken, was 50 feet; that at a point where it was 50 feet wide the depth was from 16 to 42 inches; that at a point where it was 132 feet wide the depth was from 4 to 25 inches; that at Kelley's ford, where the trespass is alleged to have been committed, the river is 200 feet wide, and from 8 to 10 feet in depth; that wangans, bateaux, canoes, and rafts had been run down the river as early as 1855 and 1857; that the state had stocked the Willow river with thousands of trout during each of the years 1885 to 1892, inclusive; that there were no screens or nettings inclosing or bounding the stream so as to close the fish upon the land and premises described; that fish for miles up and down the stream were at liberty to go on and off the premises, without hindrance or obstruction. At the close of the evidence the court directed a verdict in favor of the defendant, and from the judgment entered thereon plaintiff brings this appeal.

The precise question presented by the facts stated is whether the defendant, by stepping from a public highway into a boat upon the river, and while floating thereon, catching the fish in question from the river by hook and line, committed a trespass upon the premises of the plaintiff. The proper solution of the question depends upon the proper determination of one or more other questions discussed at the bar. Counsel for the plaintiff is undoubtedly correct in claiming that at common law the public right of fishery in rivers was confined to such portions of the rivers as were covered by the ebb and flow of the sea, and that the right of fishing in fresh-water rivers was exclusively in the abutting landowners. Thus, it is held, in quite a recent case, that “the public cannot, by prescription or otherwise, obtain a legal right to fish in a nontidal river, even though it be navigable.” Smith v. Andrews, [1891] 2 Ch. Div. 678. One of the grounds given for such distinction between fresh and salt water rivers is that the title to the bed or soil under each of such tidal rivers is in the British crown. The public lands in the 13 original states, respectively, were, of course, originally granted by the crown directly, by way of charters, patents, or otherwise, to chartered governments, to provincial establishments, to proprietary governments,--as to William Penn and to the Duke of York,--or to individuals; and then, upon the breaking out of the Revolution and the organization of each of the colonies into a separate and independent state, confirmed by the treaty of peace, in 1783, the title to such lands as were not held by private tenure, together with all the powers of sovereignty, the prerogatives and regalities which had previously either belonged to the crown or to parliament, became immediately and rightfully vested in such state, since there was no national government until several years afterwards. Martin v. Waddell, 16 Pet. 416. See, also, Don v. Jersey Co., 15 How. 426;Smith v. Maryland, 18 How. 71;Cooper v. Telfair, 4 Dall. 14;Smith v. Maryland, 6 Cranch, 286;Danforth v. Thomas, 1 Wheat. 155;Owings v. Speed, 5 Wheat. 420;Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548. It was perfectly natural, therefore, that the 13 original states, whose shores were washed by the Atlantic, as the shores of Great Britain were washed by the seas, to apply the English common law, and hold, as a general rule, that beds of tidal rivers belonged to the state, but that the beds of freshwater rivers belonged to the abutting landowners. Smith v. Maryland, 18 How. 71. And yet in some of those states, the courts extended the common law rule, applicable only to tidal rivers, to certain navigable fresh-water rivers. Subsequently, when the national government was framed and organized, and as a part of the general plan of the same, Virginia ceded the Northwest Territory, including what is now Wisconsin, to the United States, and thereafter all lands acquired became the property of the federal government. The United States has only parted with such title by specific grants, patents, pre-emptions, and other modes of conveyance and transfer. The rulings of the courts in the original states, and perhaps a failure in some cases to fully appreciate the difference in the source of title to land in the new and old states, seem to have led to more or less confusion, if not conflict, in the decisions of state courts, as to whether the title to the beds of navigable fresh-water rivers is in the state or in the abutting landowners. Some of the new states, and probably most of them, hold that such title is vested in the state, regardless of the ebb and flow of the sea. Shively v. Bowlby, 152 U. S. 2, 14 Sup. Ct. 548. This court has held from the beginning that the owners of the bank of a navigable stream by purchase from the United States, even when meandered, were presumed to be such owners to the middle of the stream in front of such purchase. Jones v. Pettibone, 2 Wis. 308;Walker v. Shepardson, Id. 384, 4 Wis. 486;Mariner v. Schulte, 13 Wis. 692;Arnold v. Elmore, 16 Wis. 509;Improvement Co. v. Lyons, 30 Wis. 61;Wright v. Day, 33 Wis. 260;Olson v. Merrill, 42 Wis. 203;Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606;City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128. Of course, such owners take and hold such title for the use of the public. The only utterance to the contrary in this court is a suggestion of Chief Justice Dixon in the Lyons Case, which Chief Justice Ryan characterized as a dicta based upon a former dicta of the federal court, but which had thereafter been corrected in that court. Olson v. Merrill, 42 Wis. 210, 211. In the last federal case, thus referred to, Mr. Justice Bradley,...

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