Colson v. Salzman
| Decision Date | 06 March 1956 |
| Citation | 75 N.W.2d 421,272 Wis. 397 |
| Parties | Nathaniel L. COLSON et al., Appellants, v. Eimer SALZMAN et al., Respondents. |
| Court | Wisconsin Supreme Court |
Lehner, Lehner & Behling, Adolph P. Lehner, Oconto Falls, for appellants.
Fischer, Brunner & Strossenreuther, Shawano, for respondents.
The plaintiffs first complain of finding of fact number 17, which stated that the defendants, by virtue of the original deeds, have easements granting them riparian rights in the private park reserve of said plat. It is contended that this finding is contrary to law. We agree with that contention. Shawano Lake is an inland navigable, meandered lake, and the title to the soil under the waters thereof is held by the state in trust for the benefit of the public for navigation purposes and its various incidents. Riparian owners have certain rights based upon title to the ownership of the bank or upland. Among other such riparian rights is included the right of access and to construct in front of their land piers long enough to reach water actually navigable for such boats as are in use or appropriate to the lake. Doemel v. Jantz, 180 Wis. 225, 193 N.W. 393, 31 A.L.R. 969; Bond v. Wojahn, 269 Wis. 235, 69 N.W.2d 258.
The defendants claim only an easement. An easement has been defined in Wisconsin as a liberty, privilege or advantage in lands, without profit, and existing distinct from the ownership of the soil. Hazelton v. Putnam, 3 Pin. 107; Guse v. Flohr, 195 Wis. 139, 217 N.W. 730; Union Falls Power Co. v. Marinette County, 238 Wis. 134, 298 N.W. 598, 134 A.L.R. 958. In Polebitzke v. John Week Lumber Co., 157 Wis. 377, 147 N.W. 703, it was held that an easement differs from a fee or a limited fee in that in case of an easement title does not pass but only a right to use or privilege in the land of another. It was held in Doemel v. Jantz, supra, that a riparian owner has the exclusive right of access to and from navigable waters to his shore. The defendants are not the owners of any portion of the private parking reserve by virtue of the easements contained in their deeds. The Lake View Company is the riparian owner thereof and has the exclusive riparian rights. The company, of course, can permit the defendants, the plaintiffs, and other lot owners within the plat to construct piers, subject to the superior rights of the state and of the federal government. It was held in The Attorney General ex rel. Askew v. Smith, 109 Wis. 532, 85 N.W. 512, that a boat house could not be abated as a nuisance upon the complaint of one not a...
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