Club v. Wilson

• Decision Date: 21 May 1897
• Citation: Club v. Wilson, 96 Wis. 290, 71 N.W. 661 (Wis. 1897)
• Parties: NE-PEE-NAUK CLUB v. WILSON ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 290

71 N.W. 661

NE-PEE-NAUK CLUB

v.WILSON ET AL.

Supreme Court of Wisconsin.

May 21, 1897.

Appeal from circuit court, Green Lake county; George W. Burnell, Judge.

Bill by the Ne-pee-nauk Club against Arthur Wilson and others. There was a decree dismissing the bill, and complainant appeals. Affirmed.

The action is in equity to restrain trespass to lands. The plaintiff claims to be the owner of certain lands in the county of Green Lake, which border upon a shallow body of water or marsh popularly known as “Mud Lake.” It claims, by virtue of such riparian ownership, to be the owner of Mud Lake itself. The lands under Mud Lake are valuable only for the privilege which the lake affords for fishing and the hunting of wild fowl, and for such exercise and recreation. The lake is shallow, so that the lands are in the nature of marsh or swamp lands. In the summer time they produce large crops of wild rice and other vegetation, making a natural resort for wild fowl for a nesting and feeding ground. The plaintiff desired to keep this as a private preserve for a shooting ground and place of recreation for its members and guests. The defendants had at various times, for several years, hunted wild duck and other water fowl upon this lake, and asserted the right and purpose of continuing to do so in the future. The action was brought to restrain them from doing so. The question controverted is the title to the lands under Mud Lake,--whether the plaintiff owns them by virtue of riparian ownership, or whether the title is in the public. This depends on whether Mud Lake is a water course or a meandered lake. It varies in width from 35 rods to 65 rods, and is about 3 miles in length. In spring and fall, and after heavy rains, the whole surface is covered with water. In summer much of the water disappears, leaving some considerable expanses of water interspersed with mud, marsh, and bog. In the places which are covered by water, rushes and wild rice grow luxuriantly. There are small openings of clear water, but no regular channel anywhere, except at a place called the “Narrows,” below the point where the alleged trespasses were committed. In ordinary stages of water it was navigable only by small craft, like canoes or hunting skiffs, propelled by paddles or push poles. What is called “Mud Lake” is formed by the expansion or dispersion of the waters of a small stream called “Grand River.” After the Grand river enters into and becomes Mud Lake, it follows no defined channel, but distributes itself through the marsh, and appears again as a stream only at or near the point called the “Narrows.” Mud Lake is in fact, for the most part, a low, wet marsh, producing a large growth of wild rice and other vegetation, and unnavigable by any natural channel, by any kind of boat, through its entire length, during the greater portion of the year. The lands bordering upon it were meandered by the government surveyors. In the field notes it was referred to as a “lake” or “marsh.” The court found that Mud Lake is a meandered lake, and that the title to the lands under it is in the public, and not in the plaintiff, and dismissed the complaint, with costs against the plaintiff. The plaintiff appeals.Bashford, O'Connor & Aylward, for appellant.

Bouck & Hilton, for respondents.

NEWMAN, J. (after stating the facts).

The only question in the case is whether the so-called “Mud Lake” is a natural, permanent, inland body of water, such as is not properly a water course, and meandered by the government surveyors; for, if it is a natural inland body of water, which is not properly a water course, the title of the riparian owner stops at the water line, and the title to the land which is under the water is in the...