Doemel v. Jantz

• Decision Date: 03 April 1923
• Parties: DOEMEL v. JANTZ.
• Court: Wisconsin Supreme Court

180 Wis. 225

193 N.W. 393

DOEMEL

v.JANTZ.

Supreme Court of Wisconsin.

April 3, 1923.

Appeal from Winnebago County Court; Fred Beglinger, Judge.

Action by Charles Doemel against Frank Jantz, in which the State intervened. From an order sustaining plaintiff's demurrer to defendant's answer, defendant appeals. Affirmed.

This is an appeal by the defendant from an order of the county court of Winnebago county, Hon. Fred Beglinger, Judge, sustaining plaintiff's demurrer to defendant's answer.

Plaintiff alleges in his complaint that he is the owner of lot 5, in section 7, town 18, range 17, in Winnebago county; that said land abuts on Lake Winnebago, and has for many years been used for pasturage purposes. It is further alleged that the defendant trespassed upon these lands, to the plaintiff's damage, etc.

The defendant in his answer alleges that he entered and traveled upon that portion of the shore lying between the ordinary high and low water marks of said lake; that said lake is a public navigable lake in this state, and that the defendant had a lawful right to enter and travel upon such strip of land without being guilty of a trespass or of violating any of plaintiff's rights in the premises. To the defendant's answer plaintiff interposed a general demurrer, upon the grounds that the answer did not state facts sufficient to constitute a defense. The trial court sustained the demurrer, and defendant has appealed from such ruling.Williams & Williams, of Oshkosh, for appellant.

Hooper & Hooper, of Oshkosh, for respondent.

Herman L. Ekern, Atty. Gen., and Franklin E. Bump, Asst. Atty. Gen., for the State.

John F. Kluwin and John C. Thompson, both of Oshkosh, amici curiæ.

DOERFLER, J. (after stating the facts as above).

The only question involved in this appeal is whether a member of the public can legally enter upon and use for the purposes of public travel that strip of land adjacent to plaintiff's upland, and lying between the ordinary high and low water marks, and constituting what is ordinarily known as the shore, without committing trespass. It appearing that the public interests may be involved in this litigation, the Attorney General was permitted to intervene and file a brief and participate in the argument before this court.

Plaintiff is a riparian owner of lands abutting on Lake Winnebago, and he contends, among other things, that his grant of land to the lake extends his title to what is known as the ordinary low-water mark, or, if it should be held that his title stops at what is known as the ordinary high-water mark, nevertheless, by reason of being a riparian owner, he is possessed of the exclusive right of the use of the shore between ordinary high and low water marks, and that any entry thereon by a stranger, in either event, for the purposes aforesaid, constitutes a trespass or a violation or infringement of his riparian rights. On the other hand, the defendant and the state contend that plaintiff's title stops at the ordinary high-water mark, and that the title of the land constituting the shore between such ordinary high and low water marks is held in trust by the state for the benefit of the public, and, further, that, if it should be held that plaintiff has a qualified title to the strip in question, such strip is subject to a public easement in the interests of the public, not only for the purposes of navigation and the incidents thereto, but for the purposes of public travel and public purposes generally.

The precise question involved herein has never come before this court for decision, although it may be said that the rights of riparian owners similarly situated have been declared in numerous adjudications of this court in such a manner as to constitute a fixed rule of property.

By the Ordinance of 1787, passed for the government of the territory of the United States northwest of the Ohio river, it is provided that:

“The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways,and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

This provision of the Ordinance, in substantially the same language, has been incorporated into our Constitution, and forms a part of what is known as section 1, art. 9, thereof.

In Illinois Central R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018, the Supreme Court of the United States, in an opinion rendered by Justice Field, decided that all lands under navigable waters which were formerly within the public domain vested in the state for public purposes, and that the term “navigable waters” means waters navigable in fact; that to them the common-law principles relating to tidal waters and the title to land under the same apply to the fullest extent. The doctrine so announced in the Illinois Central R. Co. Case has substantially been declared by this court in the case of Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 84 N. W. 855, 85 N. W. 402, 83 Am. St. Rep. 905, and in Diedrich v. N. W. U. Ry. Co., 42 Wis. 248, 24 Am. Rep. 399.

In the Bilot Case it was also held that the United States never had title to the beds of lakes in the so-called Northwest Territory, out of which Wisconsin was carved, excepting only in trust for public purposes, and that the state, upon its admission to the Union, had conveyed to it the title so held by the United States, and ever since has maintained and held such title solely for such trust purposes, and that any conveyance in violation of such trust is necessarily void. McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764;Priewe v. Wisconsin State L. & I. Co., 93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645;Ne-pee-nauk Club v. Wilson, 96 Wis. 290, 71 N. W. 661;Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, 42 L. R. A. 305;Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, 50 L. R. A. 836, 74 Am. St. Rep. 859;Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224;Illinois Central R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018;Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984.

In the early history of the common law the rights of the public in the navigable waters were confined exclusively to navigation, and the public interest in such waters was limited to purposes of navigation. This doctrine was adopted in this country and extended from time to time so as to meet the different and varying conditions as they arose. The term “navigation,” which had ordinarily been confined solely to purposes of commerce, was so enlarged as to include the use of the waters for purposes of travel, for fishing, bathing, recreation, and hunting. Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148. But in so enlarging and extending the public uses of navigable waters the original purpose of the use of such waters for navigation purposes has never been lost sight of, and, in fact, such use is at the very foundation of the public right, and a reading of the case of Diana Shooting Club v. Husting, supra, brings home the conviction that this conclusion is correct, for, in defining the public use, the various purposes for which the public waters may be used, besides navigation for commercial purposes, are declared to be incidents to navigation. In other words, the extension of the term is a mere corollary to the primary use. That navigation is the foundation of the public use cannot be lost sight of in the consideration of the issue involved in this case, where it is attempted to justify the use of the shore between ordinary high and low water marks, for the purposes of travel or other similar purposes.

In the Diedrich Case, supra, it was held that the rights of a riparian owner are not dependent upon the ownership of the soil under the water, but upon his title to the banks. Such rights cannot be taken from him for private purposes in any event, nor can they be taken for public purposes unless adequate compensation is paid therefor, under the law of eminent domain. Diedrich v. N. W. U. Ry. Co., 42 Wis. 248, 24 Am. Rep. 399;Delaplaine v. C. & N. W. Ry. Co., 42 Wis. 214, 24 Am. Rep. 386;Green Bay, etc., Co. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N. W. 1121, 63 N. W. 1019, 28 L. R. A. 443, 48 Am. St. Rep. 937;State v. Bancroft, 148 Wis. 124, 134 N. W. 330, 38 L. R. A. (N. S.) 526. These riparian rights constitute property that may be the subject of bargain and sale, and are a part of the owner's estate in the land, and enter into the actual value. 27 R. C. L. 1071; Green Bay, etc., & L. Co. v. Kaukauna, 90 Wis. 370, 61 N. W. 1121, 63 N. W. 1019, 28 L. R. A. 443, 48 Am. St. Rep. 937;State v. Bancroft, 148 Wis. 124, 134 N. W. 330, 38 L. R. A. (N. S.) 526;Mills v. United States (D. C.) 46 Fed. 738, 12 L. R. A. 673.

This enhanced value, by reason of the incidents connected with the ownership of the soil, also enters into the amount which the riparian owner is obliged to pay in taxes, and a transfer of the property without any reference whatsoever to these rights automatically conveys and includes them. Illinois Central R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018. In 27 R. C. L. p. 1073, it is said upon the authority of numerous cases cited in the notes, that:

“Riparian rights are the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except on his own terms. They are defined as the rights of the owner of lands upon water to maintain his adjacency to it, and to profit by this advantage, and otherwise as a right to preserve and improve the connection of his property with the water. Those rights are not common to the citizens at large, but exist as incidents to the right of soil itself contiguous to and attingent on the water. In such ownership th...