Mayer v. Grueber

• Citation: 138 N.W.2d 197,29 Wis.2d 168
• Parties: Alexander D. MAYER et al., Respondents, v. Henry T. GRUEBER et al., Appellants.
• Decision Date: 30 November 1965
• Court: Wisconsin Supreme Court

Page 197

138 N.W.2d 197

29 Wis.2d 168

Alexander D. MAYER et al., Respondents, v. Henry T. GRUEBER et al., Appellants.

Supreme Court of Wisconsin.

Nov. 30, 1965.

Howard & Burns, Milwaukee, James G. Howard, Milwaukee, of counsel, for appellants.

Stern & Lee, Milwaukee, James F. Stern, Milwaukee, of counsel, for respondents.

HEFFERNAN, Justice.

'Nor has the world a better thing, though one should search it round, than thus to live one's own sole king, Upon one's own sole ground.'

'Wilfrid Scawen Blunt

'The Old Squire'

It is clear from the record that all of the area, exclusive of the 4.66 acres contained in tract 'C,' was conveyed to the plaintiff by the deed from the Ozaukee Sand and Gravel Company. The plaintiff takes the position that his rights are exclusive on his 'own sole ground,' whether this ground is covered with water or not. The defendant admits that the land beneath the surface of lake 'A' was conveyed to the plaintiff, but contends that, by virtue of owning to the shore of lake 'A,' he is a riparian owner and entitled to the beneficial use of the lake. It is conceded that the plaintiff Mayer has been taxed for the whole area, including the lakes, but exclusive of tract 'C.' Riparian land is land so situated with respect to a body of water that, because of such location, the possessor of the land is entitled to the benefits incident to the use of the water. Burby, Real Property (Hornbook Series), p. 48, sec. 19. See also American Law of Property, p. 156, sec. 28.55 et seq.

Riparian rights are defined in 93 C.J.S. Waters § 5, p. 605, as 'a right to the usufruct [the right to enjoy a thing without altering the substance thereof] inherent in the land. * * *'

In Wisconsin riparian rights vary in accordance with the nature of the body of water. With respect to the ownership of the bed of the stream, a riparian owner owns to the thread [the geographical center] of the stream. Walker v. Shepardson (1885), 4 Wis. 495(* 486), 507(* 508); Nepee-nauk Club v. Wilson (1897), 96 Wis. 290, 71 N.W. 661. The title of the riparian owner is, however, a qualified one, subject to the paramount interest of the state. Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40; Town of Ashwaubenon v. Public Service Comm. (1963), 22 Wis.2d 38, 125 N.W.2d 647, 126 N.W.2d 567. However, the owner of a land abutting a natural lake or pond owns to the water line only, since title to the submerged lands beneath a permanent body of natural water belongs to the state. An abutting property owner on a natural lake, except for the right of access, has no more rights as a riparian than any other member of the public. Ne-pee-nauk Club v. Wilson, supra, 96 Wis. p. 294, 71 N.W. 661; Bino v. Hurley (1956), 273 Wis. 10, 16, 76 N.W.2d 571, 56 A.L.R.2d 778, 1959 Wisconsin Law Review 341.

The riparian rights of lake lot owners are sometimes referred to as littoral rights (Black's Law Dictionary). However, most Wisconsin cases make no distinction in applying the terms, 'littoral' and 'riparian' rights. In general, the bundle of rights conferred upon a property owner by virtue of his contiguity to a body of water, whether a lake or stream, are referred to as riparian rights. It would appear that the interchangeability of these words is philologically justifiable, since both ripa and litus (the stem words) are defined as referring to either the bank of a lake or of a stream (Cassell's New Latin Dictionary, Funk & Wagnalls, 1960).

Riparian rights include the right to use a body of water 'for bathing, swimming and boating purposes.' Bino v. Hurley (1956), 273 Wis. 10, 16, 76 N.W.2d 571, 575, 56 A.L.R.2d 778. It is clear in Wisconsin that the mere fact that one owns property abutting a natural body of water presumptively confers certain rights.

It is equally clear that one who acquires land abutting a stream or body of water may acquire no more than is conveyed by his deed. In an old case, Allen v. Weber (1891), 80 Wis. 531, 50 N.W. 514, the plaintiff for the purpose of cutting ice purchased a lot adjacent to a mill pond. His deed described 'the west side of Fox river' as the boundary line. The court held that even where the land abuts a flowing stream that there is, at the most, a presumption that ownership of the bank is to also include the bed of the stream. The court stated that the presumption could be rebutted by the clear language of the deed, which made it apparent that the margin of the stream was to be the boundary line.

'When land conveyed is described, not as bounded by a stream, but by or on the 'bank,' 'shore,' 'margin,' 'edge,' etc., of it, the land under the water is usually excluded, and the low water mark is usually adopted as the boundary. The same principle applies to conveyances of land bounded by the margin or shore of a lake.' Tiffany, Real Property, Abridged ed., p. 690, sec. 674. See also 4 Tiffany, Real Property, 3rd ed., p. 103, sec. 995.

Tiffany cites Allen v. Weber, supra, as supporting this proposition.

'There could be no language of description more clearly indicating the exact line than is found in the conveyances of this strip of land: 'to lowwater mark; thence northerly along the low-water mark.' This language could have no other meaning than to indicate the intention of the grantors to limit the premises, and establish their boundary at that line 'along low-water mark." Allen v. Weber (1891), 80 Wis. 531, 536, 50 N.W. 514, 515.

This language is similar to the language of the deed in the instant case wherein the boundary of lot 'C' is described as 'along the easterly bank.'

Allen v. Weber, supra, holds that riparian rights do not necessarily follow as a matter of course the ownership of the adjacent land. In this respect, Wisconsin follows the general rule as set forth in Burby, Real Property (Hornbook Series), p. 46, sec. 18:

'* * * the owner of the upland is presumed to possess riparian rights. * * * Such rights are freely alienable and may be separated from upland ownership. Whether or not riparian rights are conveyed along with the grant of the uplands depends largely upon the intent of the grantor, with particular reference to the language in the deed.'

See also Bright v. City of Superior (1916), 163 Wis. 1, 156 N.W. 600.

The presumption in favor of owning a portion of the bed of a stream (Allen v. Weber, supra) is not applicable where an artificial lake or body of water is concerned. In Skalitsky v. Consolidated Badger Co-operative (1948), 252 Wis. 132, 137, 31 N.W.2d 153, 155, the court made that distinction, saying:

'The plaintiffs' lot does not lie on the bank of a stream but on the shore of an artificial pond, and the intent of the plattors that the land of the plaintiffs' lot should not run to the center of the pond plainly appears.'

In the instant case, however, it is conceded by the defendant that he has no ownership rights in the bed of the lake itself. This being true, he has no other rights in the waters over the bed of the lake unless he acquired those rights by prescription or adverse possession.

Haase v. Kingston Co-operative Creamery Asso. (1933), 212 Wis. 585, 588, 250 N.W. 444, 445, holds that though the public may have acquired the right to use the waters of a mill pond, still the title to the land remains in the owner and does not become vested in the state. Additionally, and more important to this instant case, it makes it apparent that the rights to use the waters will only arise from prescription.

'Where the owner of land creates an artificial body of water upon his own premises, he may permit the public to enjoy the ordinary use of the waters, and it may be, that by the lapse of time such enjoyment will ripen into a dedication * * *.' (Emphasis supplied.)

It is elementary that the owner of private property may make any proper use of it so long as he does not interfere with the rights of the public. The use, of course, must be lawful. Haase v. Kingston Cooperative Creamery Asso., supra.

A perusal of the cited cases shows that the owner of property on a stream presumptively holds title to the middle of the water course. The cases, however, are in accord that the riparian rights and title to the land under the water are severable if the deed makes that limitation clear. In the case of natural lakes and bodies of water, the adjacent landowner owns only to the shore line; the lake bottom is held in trust for the people of the state. In the case...