Hicks v. Smith

• Decision Date: 19 March 1901
• Citation: 109 Wis. 532,85 N.W. 512
• Parties: HICKS, ATTY. GEN., EX REL. ASKEW, v. SMITH ET AL.
• Court: Wisconsin Supreme Court

109 Wis. 532

85 N.W. 512

HICKS, ATTY. GEN., EX REL. ASKEW,

v.SMITH ET AL.

Supreme Court of Wisconsin.

March 19, 1901.

Appeal from circuit court, Dane county; George Clementson, Judge.

Suit by E. R. Hicks, attorney general, on the relation of Samantha B. Askew, against Denton B. Smith and others. From a decree for defendants, plaintiff appeals. Reversed.

This is an action in equity brought by the attorney general of the state, in his official capacity, upon the relation of a private citizen, to abate and remove certain structures erected in the waters of Lake Monona, at the foot of Henry street, in the city of Madison. The structures complained of are alleged to be purprestures and public nuisances, as well as invasions of the riparian rights of the relator as owner of part of lot 1, block 70, in the city of Madison. The facts will be more easily understood by reference to the following map of the premises.

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In the map the premises occupied by the relator are 4 rods square, and marked “Askew.” The relator claims, however, to own to the original shore of the lake, by reason of facts hereafter to be stated. Between the lines of her occupation and the shore of the lake as it existed prior to 1868 there was a distance of about 15 feet, such shore being nearly at right angles with the lots. At some time prior to October, 1868, the Chicago, Milwaukee & St. Paul Railway Company built a railway track on said shore line, the center line of said track being practically on said original shore line. Said track is marked “C., M., St. P. Track No. 1,” on the map. Said company afterwards filled in dirt, and built another track, marked “No. 2” upon the map, and at a still later period made a contract with the Chicago & Northwestern Railway Company under which said last-named company was allowed to, and did, make a further filling, and constructed two tracks still further out in the original bed of the lake, which tracks are marked “C. & N. W. Tracks, Nos. 1 and 2,” upon the map; and outside of the last track was constructed a retaining wall. The structures complained of in this action consists of a pier and a boat house for storage and repair of boats outside of this retaining wall, and standing in shallow water upon the bottom of the lake, and have been used by George W. Smith, the original defendant, and since his death by his heirs, the present defendants, for carrying on the business of a boat livery. Said structure stands in shallow water, from 2 feet to 2 feet and a half in depth.

The facts of the case were not greatly in dispute, and the court found the same, in substance, as follows: Block 70 was platted by the proprietors of the land as a part of Madison in 1837, and lot 1 of said block (beingthe lot delineated upon the map) had a length of about 280 feet, extending from Wilson street, on the northwest, to Lake Monona, on the southeast. One Dean became the owner of said lot 1 in 1852, and prior to October, 1868, the Milwaukee & St. Paul Railway Company constructed a single-track railroad across the lot at its lake end; the center line thereof being the shore line of the lot. October 29, 1868, Dean and wife executed a deed in fee simple to said railroad company, conveying to it and its successors and assigns, forever, a piece of land from the lake end of said lot, described as follows: “A strip or piece of land 48 feet wide, extending across lot 1, block 70, in the city of Madison, through which strip or piece of land the line of the railroad of said company is now located, so as to leave 15 feet in width on the inside (in shore) from the center, and 33 feet in width of said strip on the outside of said center line (lake side).” This deed conveyed to the railway company 15 feet of said lot next to the lake, and purported to cover 33 feet of the lake adjoining said 15-foot strip. Prior to 1883 the name of the Milwaukee & St. Paul Railway Company was changed to the Chicago, Milwaukee & St. Paul Railway Company; and since the time of the execution of the said deed from Dean said company has continuously occupied and used said land, from a certain retaining wall built by it about 8 feet northwest of the center line of its track, for a roadbed, and has always occupied contiguous land made by filling in the bed of the lake. July 26, 1869, Dean and wife conveyed to one Nietert the following land: “Four rods square off from the southeast end of lot 1, block 70, city of Madison.” October 23, 1873, Nietert and wife conveyed the same property to the relator by the same description. Nietert, after receiving his deed, went into possession of the piece of land 4 rods square adjoining on the northwest the strip of land deeded to the railway company, and marked “Askew” on the map, and built a dwelling thereon, which was his homestead, and has been the homestead of the relator since she purchased it; but neither Nietert nor the relator ever had possession of that part of lot 1 now occupied by the railway company. September 20, 1873, Dean and wife delivered to Bridget Minehan a deed of the following land: “All of the southeast one-half of lot 1, block 70, excepting 48 feet from the southeast end of said lot sold to the M. & St. P. R. R. Co., and another piece off the same end, four rods square, lying next to the railway track aforesaid, sold to Nietert.” On the 18th of May, 1874, the administrator of the estate of Bridget Minehan, deceased, conveyed the last-named tract of land to George W. Smith, who went into possession thereof, built his homestead there, and occupied the same until his death, in September, 1899, since which time it has been occupied by his widow. George W. Smith died intestate, and the present defendants are his heirs. Shortly after Smith purchased said property he built a small pier in the lake at the edge of the railroad embankment as it then existed, and commenced the business of boat livery, which increased until it brought him an income of about $600 per year; and the present defendants have continued that business since his death, the boat house being enlarged as the business increased. Prior to 1883 the Chicago, Milwaukee & St. Paul Railway Company constructed a second track outside of its first track; and in 1883 the same company conveyed to the Chicago & Northwestern Railway Company the right to operate its then existing track along the shore of said lake, and construct another track on the lake side thereof, which said last-named company did in 1898, and extended its roadbed towards the lake by filling in the lake. During the year 1898 and since that time there have been four railroad tracks in operation; the three outside tracks at the place in question being over what was originally the bed of the lake; the width of the made land from the original shore line being 51 feet. When the Chicago & Northwestern Railway Company was about to lay its second track, it was arranged between the said company and Smith that the company should move his boat house, platform, etc., out into the lake, outside of its retaining wall, which the company in fact did. Said boat house is now...