Ill. Steel Co. v. Bilot

Decision Date08 January 1901
PartiesILLINOIS STEEL CO. v. BILOT ET AL.
CourtWisconsin Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Judge.

1. Land covered by the waters of lakes or ponds, or by water partaking of like character as regards public rights, though in form conveyed by a federal or state patent, is vested in the state the same after such conveyance as before, such conveyance, as to such land, being absolutely void.

2. The title to land of the character mentioned, in the territory out of which the state of Wisconsin was formed, prior to such formation, was in the United States in trust to preserve to the people of prospective states the enjoyment of the waters covering the same to the line of ordinary high-water mark, to the same extent as tidal waters are enjoyable by the rules of the common law. When this state was admitted into the Union such trust as to such land within the boundaries devolved upon it and there remains, for it is powerless to devest itself of the trust so far as its prevention is necessary to maintain in all its integrity the character of such waters.

3. The presumption as regards land covered by water of the character above indicated is that the trust mentioned attached thereto before the government survey was made, and that the extension of such survey over and the conveyance of such land in form, was void; or that a trust of a like character attached to the land by reason of the shore line being extended by erosion.

4. No title can be obtained, by adverse possession for 20 years, to land held by the state in any capacity.

5. The title to land held by the state in trust to preserve to the people thereof the enjoyment of lakes and ponds does not change by artificial filling so as to raise the surface above the level of the water.

6. Adverse possession of land covered by water, which is the subject of private ownership, may be acquired by any means which actually and notoriously exclude the true owner therefrom, effectually disseising him thereof. Other means than physical exclusion by residence thereon or by inclosing the same will accomplish it.

7. The mere ownership of the shore, where title stops at the water's edge by reason of the public character of such water, does not entitle one to maintain ejectment to obtain possession of land beyond the water's edge.

8. Private interests in land, if there be any below the line of ordinary high-water mark of public waters, is prima facie incident to the ownership of the shore, and if title to the latter be devested from one by adverse possession, the interests which are incidental thereto pass with it.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by the Illinois Steel Company against Bernhard Bilot and others. Judgment for plaintiff. Defendants appeal. Reversed.

Action in ejectment. The complaint was in the usual form. The answer contained a plea of the 20-year statute of limitations. Section 4207, Rev. St. The defense thus pleaded was the one relied upon on the trial. To maintain plaintiff's case evidence was produced showing prima facie a record title in itself of a portion of two lots in fractional section 33, township 7, range 22 E., and competent evidence that such portion includes the premises in dispute.

The evidence on the part of defendants was to the following effect. In 1872, theretofore and thereafter, except as artificially changed, the territory called “Jones Island,” which includes the premises in controversy, was covered by the waters of Lake Michigan. The water was quite shallow in many places and in others was as much as nine feet deep. A man by the name of Truher, at the time specifically stated, had a house on the submerged territory, supported in some way in the shallows or resting on a piece of made land. Just how that was does not clearly appear. He pretended to exercise dominion over the entire territory, and so pretending, he prevented any person from locating thereon without his permission. He sold his house and claim of title to one Jacob Muza in 1872, making no paper transfer of the property, however. There were then about nine settlers on the island. He made a verbal transfer of the house and authorized his grantee thereof to exercise the same control that he had over the entire territory. Muza took possession of the house and such possession of the territory as was practicable under the circumstances, and continuously thereafter asserted dominion over the same, and enforced his claims by preventing any person from locating thereon without his permission. Evidence was given showing the precise condition of the territory in 1872, theretofore and thereafter, except as artificially changed, as follows: Muza testified that when Truher gave him the property it was all submerged by water and mud as deep as over his head; that when he gave defendant permission to locate, the particular place allotted to him was covered by water so that it was of no use until artificially raised above the level of the water. A witness, Jones, testified that the entire territory was covered by water in 1855; that sail and fishing boats used to go right through what is now the center of the island; that it was all submerged with water, but that it was deeper sometimes than at others. One Zelin testified that the premises claimed by defendant, before they were filled, were covered with water from four to eight feet deep; that defendant was three or four years filling up the property, and that some part of the territory is still covered by water. Witness Kunka testified that he built a house on the island, by permission of Muza, in 1872; that he bought 30 feet from Muza's house; that the whole territory was then covered with water from 4 to 10 feet deep; that it was all marsh and water till filled. Defendant testifies that Muza pointed out to him the place which he might occupy, and that he commenced filling up some 13 years before the commencement of the action; that when he commenced to make the fill it was all covered with water to a depth of several feet; that he got a small piece of filled territory of one Zelin, and that he worked out from that in filling what Muza permitted him to occupy; that he commenced filling his lot as soon as he got permission from Muza, and soon after built a house thereon, which he occupied thereafter all of the time down to the time of the commencement of the action. At the close of the evidence the court directed a verdict in plaintiff's favor in accordance with the prayer of the complaint. A judgment was accordingly entered establishing title in fee to the property in plaintiff, with all the incidents of such a title, and according to the statute in such cases.Fiebing & Killilea and M. C. Krause, for appellants.

Van Dyke, Van Dyke & Carter, for respondent.

MARSHALL, J. (after stating the facts).

We understand the statement which appears in the record, as to the proof of title upon which plaintiff rested its claim and secured the judgment appealed from, to mean this: A record was exhibited which purported to show that the United States or the state of Wisconsin, most likely the former, prior to 1872, made a patent, in form, conveying to private ownership a certain government subdivision of land within and according to the public land survey, and that such title, as was thus acquired, was by mesne conveyance vested in plaintiff before the commencement of this action; that the premises in controversy are within the boundaries of such government subdivision according to such survey. That proof made out a prima facie title. The case seems to have been tried and decided upon the theory that it was sufficient to entitle plaintiff to recover unless defendants were able to show a better title by adverse possession.

The learned counsel for respondent, evidently assuming that the actual possession of lands submerged by water, necessary to satisfy the requisites of adverse possession so as to gain title in that way, is difficult if not impossible, encouraged defendants' witnesses to make it appear as clearly as possible that when the...

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