Menominee River Lumber Co. v. Seidl

• Decision Date: 23 April 1912
• Citation: 135 N.W. 854,149 Wis. 316
• Parties: MENOMINEE RIVER LUMBER CO. v. SEIDL ET AL.
• Court: Wisconsin Supreme Court

149 Wis. 316

135 N.W. 854

MENOMINEE RIVER LUMBER CO.

v.SEIDL ET AL.

Supreme Court of Wisconsin.

April 23, 1912.

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

Action by the Menominee River Lumber Company against Frank E. Seidl and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an action of ejectment brought to recover a parcel of land now claimed by plaintiffs by accretion or reliction to fractional section 9 town 30 N., range 24 E. The answer was a general denial; the defense being possession. After the proofs were in, each party moved for a directed verdict. The court directed a verdict for defendants. Judgment was rendered accordingly dismissing the complaint on the merits with costs, from which judgment this appeal was taken.

The material established facts in this case are well stated by the learned trial court thus: “Fractional section 9, assumed for the present to have been and be owned by the plaintiff, borders on Green Bay, and lies south of the mouth of the Menominee river. It projects east further than the bay shore line just south of it. Plaintiff's block 50, as shown on the village plat, was on the southeasterly point of said projection. The water for some distance south and east of that point is comparatively shallow, and for many years was largely occupied by a boom company under leases from the plaintiff of such rights as it had, as ground for storing and sorting logs. About three-quarters of a mile south of block 50 there was a place estimated at two to three acres in extent, which, at times of low water, was above water, and at times covered; the level of the water varying several feet different years. It was known as Sand Point. Between that point and block 50 there was a space on which the water was more shallow than on either side of it. At the north end of this space and south of the plaintiff's shore line the water was deeper than further south. A steamboat dock was located on the east end of said lot 9, north of said block 50, and boats from the south reached that dock and the mouth of the river by coming up west of said shallow strip between it and the shore and through the deeper water at the north end of said shallow place and plaintiff's shore line. Said boom company in 1887-88 dredged a channel across the northerly end of said low place, throwing up the earth or sand on both sides 8 to 15 feet high, forming banks or dumps about 60 feet wide. This channel is several hundred feet from where the shore line around block 50 was at that time. The water where said channel was dug was at the time it was dug from one to two and more feet deep. After it was dug there was still a channel for boats drawing several feet of water between the north bank or dump and said block 50. The channel and open space east of said lot 9 was filled in with slabs and refuse from sawmills and made solid ground some distance. A large space south and southeast of said block 50 including said shallow space and said rafting channel was surrounded by said boom company with piers, booms, and breakwaters. These obstructions in the water and the storage of logs in said inclosed space interfered with the natural currents and flow of the waters, and caused bark and dirt to accumulate and be held there and cause accretions to the shore to a greater extent than if they had not been there. The open space between the plaintiff's shore line and the land made by dredging said channel became gradually filled up by accretions to the shore on each side, and the shallow ground south of said channel also became more shallow by deposits on it from the water. The level of the waters in Green Bay, when not affected by winds, have varied different seasons as shown by records kept by the United States since 1860, of Lake Michigan, at Milwaukee, and other points, being at its highest stages from four to five feet higher than when at its lowest stages. These stages vary periodically. During one unusually low stage the space south from said channel was so dry as to permit a ball game upon it. During the past two years the water has been very low. The entire space between said made land and the plaintiff's former shore line, as well as quite a distance south from said channel, has been above water. Should the water return to its average level during the past 50 years, these spaces would again be flooded. The regularity with which high and low stages of water in the lakes and bay have alternated make it reasonably certain that the waters will again cover the space between the made land and plaintiff's former shore line. The only expert testimony on that question, that of United States engineers, was to the effect that it would. The contention of the plaintiff is that by accretions to the shore line of block 50 and reliction of the water therefrom, its title has extended as far out as land has been made. The defendants' contention is that the land occupied by them was never formed by accretions or reliction, but existed for many years as a spot of dry land, not connected with the shore, an island, although created by artificial means, not by natural action of the water. There is no question as to the fact. The sand thrown up by the dredge made a bank estimated from 8 to 15 feet high, about 60 feet wide, which by action of wind and seas was spread until it formed a tract of land high and dry embracing all the land in question.”

It also appears from the established facts that the original meander line of fractional section 9, as shown by the government survey of 1840, is nearly a quarter of a mile north of the land sought to be recovered in this action. In 1874 an addition was platted on said fractional section. At that time the shore line was a short distance south of the meander line caused by natural accretion washed to the shore and by artificial filling done by plaintiff.

W. B. Quinlan (Moses Hooper, of counsel), for appellant.

M. C. Krause (John E. Tracy, of counsel), for respondents.

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

The main question involved in this case is whether the land in dispute and in possession of the defendants is owned by the plaintiff. The claim of the plaintiff is that it became such by accretion and reliction, although formerly the land was part of Green Bay, an arm of Lake Michigan, the title to which was in the state. Counsel insists that, after plaintiff threw up the embankment, the land in question was formed by the combined action of accretion and reliction, and such land so formed connected on the shore side with the mainland and became a part of it; that the dredging by plaintiff some years before so as to throw up the bank and thereby form an island some distance from the shore is immaterial, because the land made by accretion and reliction lay between the artificial island and the mainland and included the artificial island. The learned counsel for plaintiff relies mainly upon the following authorities: St. Clair v. Lovingston, 90 U. S. 46, 68, 69, 23 L. Ed. 59;Lovingston v. St. Clair, 64 Ill. 56, 16 Am. Rep. 516;Freeland v. Railway Co., 197 Pa. 529, 540, 541, 47 Atl. 745, 58 L. R. A. 206, 80 Am. St. Rep. 850;Knudson v. Omanson, 10 Utah, 124, 131, 37 Pac. 250;Priewe v. State, 93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645; Farnham, vol. 1, 324, § 70; Patterson v. Gelston, 23 Md. 442, 447; Wiel, 943, 944, § 904, note 14; Union Depot v. Brunswick, 31 Minn. 297, 301, 17 N. W. 626, 47 Am. Rep. 789;Diedrich v. Northwestern U. R. Co., 42 Wis. 262, 24 Am. Rep. 399; Attorney Gen. v. Chambers, 4 De G. & J. 55; Lamprey v. State, 52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541; Hull & S. Railway, 5 M. & W. 327, 332; Wiel, 942, § 904; People v. Warner, 116 Mich. 228, 74 N. W. 705;Holman v. Hodges, 112 Iowa, 714, 84 N. W. 950, 58 L. R. A. 673, 84 Am. St. Rep. 367; Wiel, 940, § 902, note 21; Roberts v. Brooks, 78 Fed. 411, 24 C. C. A. 158;Tatum v. St. Louis, 125 Mo. 647, 28 S. W. 1002;Whyte v. St. Louis, 153 Mo. 80, 54 S. W. 478; 19 Opin. Attys. Gen. 149; Gould, §§ 155, 310, note 7; Wiel, 939, § 901; Steers v. Brooklyn, 101 N. Y. 51, 56, 4 N. E. 7;Memphis v. Waite, 102 Tenn. 274, 52 S. W. 161;Adams v. Frothingham, 3 Mass. 352, 362, 363, 3 Am. Dec. 151;Ledyard v. Ten Eyck, 36 Barb. (N. Y.) 102, 124, 125;McLennan v. Prentice, 85 Wis. 444, 445, 55 N. W. 764;Illinois Steel Co. v. Bilot, 109 Wis. 418-425, 84 N. W. 855, 85 N. W. 402, 83 Am. St. Rep. 905;Saunders v. Railway Company, 144 N. Y. 75-84, 38 N. E. 992, 26 L. R. A. 378, 43 Am. St. Rep. 729;Blakeslee v. Commissioners, 135 N. Y. 447-450, 32 N. E. 139;Washougal v. Dalles, 27 Wash. 490-499, 68 Pac. 74;Hall v. Hobart, 186 Fed. 426, 430-433, 108 C. C. A. 348.

[1] The plaintiff's contention cannot be sustained, as the authorities hereinafter cited, we think, fully demonstrate. To sanction such a rule would be to hold that a riparian owner could by artificial means acquire title to the bed of the lake far below the shore which belonged to the state. The disputed tract is the dump or bank made by plaintiff in so dredging the channel in the bay as to raise the land several feet above the level of the bay. No title could be acquired by such acts. The title still remained in the state, and in order to recover it was incumbent upon plaintiff to prove title in itself. Illinois S. Co. v. Bilot, 109 Wis. 418, ...