Kelley v. Salvas

• Decision Date: 02 May 1911
• Citation: 146 Wis. 543,131 N.W. 436
• Parties: KELLEY v. SALVAS.
• Court: Wisconsin Supreme Court

146 Wis. 543

131 N.W. 436

KELLEY

v.SALVAS.

Supreme Court of Wisconsin.

May 2, 1911.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Cornelius Kelley against Peter Salvas. From the judgment, defendant appeals. Affirmed.

The appellant cited: Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606, 56 Am. Rep. 642;Wegge v. Madler, 129 Wis. 412, 109 N. W. 223, 116 Am. St. Rep. 953;Farris v. Bentley, 141 Wis. 671, 124 N. W. 1003;Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, 42 L. R. A. 305;Green Bay, etc., Canal Co. v. Telulah Paper Co., 140 Wis. 417, 122 N. W. 1062;C. Beck Co. v. Milwaukee, 139 Wis. 340, 120 N. W. 293, 131 Am. St. Rep. 1061; C. & N. W. Ry. Co. v. Groh, 85 Wis. 641, 55 N. W. 714; 30 A. & E. Ency. of Law, 475, 502, 21 A. & E. Ency. of Law, 437, 24 A. & E. Ency. of Law, 979; Priewe v. Wisconsin State, etc., Co., 93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645;Illinois Steel Co. v. Jeka, 123 Wis. 419, 101 N. W. 399;Clark v. Potter, 32 Ohio St. 49;Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624;Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984;Lathrop v. Racine, 119 Wis. 461, 97 N. W. 192;Delaplaine v. Railway Co., 42 Wis. 214, 24 Am. Rep. 386;Montgomery v. Shaver, 40 Or. 244, 66 Pac. 923;In re Water Front, 113 App. Div. 84;98 N. Y. Supp. 1063;Carroll v. Price (D. C.) 81 Fed. 137;McCloskey v. Pacific Coast Co., 160 Fed. 794, 87 C. C. A. 568, 22 L. R. A. (N. S.) 673.

On the part of the respondent there were cited: Drake v. Curtis, 1 Cush. (Mass.) 395;Tufts v. Charlestown, 117 Mass. 401;Wheeler v. Stone, 1 Cush. (Mass.) 313;Paine L. Co. v. City of Oshkosh, 89 Wis. 449, 61 N. W. 1108.Sol. P. Huntington, for appellant.

C. W. Lomas, for respondent.

TIMLIN, J.

The respondent brought this action of ejectment against the appellant to recover all that part of private claim No. 1 on the west side of Fox river bounded on the west by the center line of Water street, on the north by the north line of lot 8 of the original plat of the town of Ft. Howard extended eastward to the center line of Fox river, on the east side by the center line of Fox river, and on the south by the south line of lot 8 extended eastward to the center line of Fox river. The land in question forms part of the river bottom, and is included in “Tract K” upon the following diagram:

IMAGE

Private claim No. 1 was one of the tracts allotted to the original French settlers (4 Am. St. Papers, Public Lands [Ed. 1834] p. 855). It was about 20 chains in width and extended westward from the Fox river far enough to contain a section of land, and it is assumed in this case that its eastern boundary was the thread or middle of the channel of the Fox river. One Joel S. Fisk on April 22, 1850, became the owner of this part of private claim No. 1. On May 1, 1850, he joined with one John B. W. Arndt, who owned a strip of land adjoining on the south, and together they platted and recorded the plat of “the town of Fort Howard” on said lands. Lots 7 and 8 were on private claim No. 1 with Water street for their eastern boundary as above shown. This was also the eastern boundary of the plat. On May 9, 1850, and apparently before selling any other of these lots touching the water, Fisk conveyed to one Peak lot 7, “and part of private claim No. 1 west, described as follows: Commencing on the east side of Water street at the line between said Fisk and J. B. Murray (north line of plat) and following said line to the channel bank of Fox river thence along said channel bank southerly 161 feet; thence westerly to the east line of Water street; thence along said east line northerly 161 feet, to beginning.” This included the river bed from the south line of lot 7 north to the north boundary of the plat and lying east of Water street and west of some indefinite line of deep water which we may consider the middle or thread of the stream. In 1853 Peak conveyed lot 7 to one and in 1857 part of the bed of the river lying north of the north line of lot 8 extended east to another, and in 1859 that part of the river bed lying in front of lots 7 and 8 and east of Water street, being the tract K on the diagram to another. The plaintiff showed such private title as the bed of a navigable river is subject to by deed originating under the last-mentioned conveyances to tract K. And the defendant showed title by tax deed to lot 8. At the time the plat was made and recorded, lots 7 and 8 included the bank and ventured somewhat into the shallow water. Water street represented submerged land lying in shallow water. Many of the same conditions still exist, except for some filling and except for the artificial structures hereinafter referred to. Under the foregoing conditions, this controversy arose upon the defendants' claim to have acquired such right or title by adverse possession to that part of tract K in front of lot 8 that he is now after the lapse of more than 20 years the owner thereof. The jury returned a verdict as follows: “Was the defendant in the actual adverse possession claiming title of the portion of the property described in the complaint, covered by a boathouse and dock and boats when landed at his dock, for a period of 20 years or more, prior to the commencement of this action, October 27, 1909? Answer: Yes. If your answer to the first question should be ‘Yes,’ then answer this: What quantity of land east of the center of Water street was so occupied? Answer: A tract of land bounded south by a line coinciding with the south line of lot 8, extending east; on the east by a line 20 feet east from the east boundary line of said Water street, and parallel with the line of said street, and bounded on the north by a line parallel with the first described line, and 35 feet north of said line.” Before submitting this verdict, the learned circuit judge ruled that no showing of adverse possession was made by the defendant except as covered and included in the questions above quoted, and the answer to the second question was drawn up for the jury leaving a blank for the number of feet east from the east boundary of Water street, and for the number of feet north of the south line of lot 8. These figures were filled in by the jury. In this way the verdict of the jury covered the fact of adverse possession by the boathouse and docks in the first question and of extent of such actual occupation by the second question.

The appellant contends that, the plat having given lot 8 the bank and a water front, this fixed the east boundary of that lot in the middle of the channel of the Fox river, and subject to the usual incidents of riparian ownership of the bed of the stream. He contends that Water street, never having been opened as a street, does not exist as a street, and, in any event, its presence on the plat would not affect the true eastern boundary of lot 8, but that that boundary would notwithstanding the delineation of Water street on the plat extend as aforesaid.

[1] We think this fails to give due weight to the rule that the owner of lands bordering upon a navigable stream and who owns the bed of the stream in front of his lands may separate the ownership of the lands, including the bank of the stream, from the ownership of the bed of the stream, and convey the shore and bank to one grantee and the bed of the stream to another. Norcross v. Griffiths, 65 Wis. 599, 26 N. W. 606, 56 Am. Rep. 642;Walls v. Cunningham, 123 Wis. 346, 101 N. W. 696;Minneapolis Co. v. Eastman, 47 Minn. 301, 50 N. W. 82, 930;Hanford v. Railway Co., 43 Minn. 104, 42 N. W. 596, 44 N. W. 1144, 7 L. R. A. 722;Eldridge v. Cowell, 4 Cal. 80;Gilbert v. Emerson, 55 Minn. 254, 56 N. W. 1818;43 Am. St. Rep. 502;Concord Mfg. Co. v. Robertson, 66 N. H. 1, 25 Atl. 718, 18 L. R. A. 679; 3 Farnham on Waters, § 724, p. 2194, and cases. There is evidence in the instant case that the owner has done this.

[2] The execution and recording of the plat was given by statute the effect of a conveyance of the streets in fee to the municipality in trust for the public. Thorndike v. Milwaukee, etc., Co., 143 Wis. 1, 26 N. W. 881. A few days after this platting, the owner of this part of private claim No. 1, apparently while he owned lot 8, conveyed away all that part of the bed of the river in front and east of lot 8, describing it as commencing on the east side of Water street, and extending thence east into the river to what he called the “channel bank.” These two acts must, we think, be considered as a sufficient separation and conveyance of the ownership of the submerged river bottom east of lot 8 from that lot, so that it can be definitely stated that no person thereafter acquiring title to lot 8 could claim that his eastern boundary line extended to the middle of the river. The subsequent sale of lot 8 for delinquent taxes and the tax deeds issued on such sale must be taken to have conveyed lot 8 with its boundaries as they existed according to the plat and at the time of the tax sale. We are not here concerned with the logic of this...