Pewaukee v. Savoy

• Decision Date: 16 May 1899
• Parties: VILLAGE OF PEWAUKEE v. SAVOY ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 271

79 N.W. 436

VILLAGE OF PEWAUKEE

v.SAVOY ET AL.

Supreme Court of Wisconsin.

May 16, 1899.

Syllabus by the Judge.

1. Submerged lands of meandered lakes within the boundaries of this state belong to the state in trust for public use substantially the same as submerged lands under navigable waters by the rules of the common law, and the state cannot part with such title to the detriment of such trust.

2. The title of the state to submerged lands under the waters of navigable lakes will be extended so as to include lands covered by an artificial raising of the level of the lake if such artificial condition be continued so long as to become the natural condition.

3. If a person artificially raise the level of the waters of a navigable lake so as to flood his own lands, the public rights in the lake will be correspondingly extended so long as such artificial condition exists.

4. If a person flood his own land by artificially raising the level of the waters of a navigable lake and maintain that condition for more than 20 years, and the public use and enjoy the lake in such new condition, the title to such land, so far as necessary to maintain such condition, will vest in the state by dedication. In such circumstances the artificial condition of the lake will be considered its natural condition, with all the incidents thereof.

5. If a public street or highway exists so that its boundary line and the waters of a navigable lake meet, the riparian rights incident to the land composing the street belong to the public. In such a situation there is no zone of private right between the street and the lake, but the public right is continuous from the street to the waters of the lake and from the waters of the lake to the street.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by the village of Pewaukee against F. X. Savoy and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Appeal from the circuit court of Waukesha county from a judgment restraining defendants from placing a fence along the street line to obstruct the passage therefrom to the adjoining waters of Pewaukee Lake. It was claimed by defendants that the land from the street line back some distance into the lake, reaching to where the water came in a state of nature, was private property; that though such land had been submerged for a long term of years by an artificial raising of the lake level, the owner had a right to reclaim the land and exclude the public from passing over it to the line of the lake level as it existed in a state of nature. Plaintiff commenced the action on the theory that, though the land immediately outside of the street line originally was not lake bottom and but for the artificial raising of the lake would belong to defendants, such artificial condition had permanently established a new level reaching to the street line, so that what was formerly private property between such line and the line of the lake bottom became the property of the state the same as the lake bed in its natural condition. The cause of action and right to relief depended on whether the artificial raising of the lake and the maintenance of it for a long term of years extended the public ownership of submerged lands, so as to include that which was thereby, but was not formerly, covered by water. The issues raised by the pleadings were decided substantially as follows:

(1) Pewaukee Lake, a meandered, navigable body of water, about five miles long and averaging about three-fourths of a mile wide, commonly used by the public for boating and fishing since prior to 1873, is situated within the boundaries of plaintiff, a duly incorporated village under the laws of this state.

(2) Main street, a much used public thoroughfare in the village, is located in part along the east end of the lake so that its submerged land reached the line of the street on the west side thereof.

(3) Upwards of 20 years prior to the commencement of this action the water of that part of the lake on the west side of the street, between an iron stake near Savoy's hotel and Desso's blacksmith shop lot, has continuously flowed, naturally, to the street line, and the street has been in constant use as a thoroughfare for public travel in reaching the lake, by all persons desiring to enjoy the common rights therein.

(4) On the 19th day of June, 1896, the trustees of the village, by ordinance duly passed according to the laws of this state, established that portion of the lake bordering on the street as aforesaid as a harbor for all kinds of craft used in navigating the lake, and provided for the regulation of docks, wharfs and boat houses in and at such harbor.

(5) March 30, 1898, defendants constructed a barb-wire fence along the street line on the lake front within the territory above indicated, so as to wholly obstruct public travel from the street to the lake and from the lake to the street, which fence was removed by the village authorities, but would have been restored and the public way permanently obstructed had defendants not been enjoined by the court in this action from so doing till the right of the parties could be judicially determined.

(6) The level of the water in the lake was artificially raised, about 1838, by a dam which forms the street within the points mentioned, which condition has since existed substantially without change, by means of which the disputed strip of land along the lake front, bounded on the east by the west line of the street, which was formerly dry land, has since been covered by water.

(7) The trustees of the village authorized the commencement of this action.

From the aforesaid facts the court found the the public rights in the lake between the points mentioned reached the boundary of the street, no private zone separating the two, and that plaintiff was entitled to a permanent injunction restraining the defendant from interfering with the public travel to and from the lake or the navigation of the lake within such territory. Judgment was entered accordingly from which this appeal was taken.

T. W. Haight, for appellants.

Ryan & Merton, for respondent.

MARSHALL, J. (after stating the facts).

It is the settled law that submerged lands of lakes within the boundaries of the state belong to the state in trust for public use, substantially the same as submerged lands under navigable waters at common law. Upon the admission of the state into the Union the title to such lands, by operation of law, vested in it in trust to preserve to the people of the state forever the common rights of fishing and navigation and such other rights as are incident to public waters at common law, which trusteeship is inviolable, the state being powerless to change the situation by in any way abdicating its trust. Priewe v. Improvement Co., 93 Wis. 534, 67 N. W. 918;Club v. Wade, 100 Wis. 86, 76 N. W. 273;Illinois Cent. Railroad Co. v. Illinois, 146 U. S. 387-452, 13 Sup. Ct. 110;Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548;Revell v. People (Ill. Sup.) 52 N. E. 1052.

The title of the state to submerged lands, and the inviolability of the state's trustee relation thereto, as indicated, is not questioned by appellants, but it is contended, as regards the lake in question, that the state's title is limited to lands that were covered by water before the lake level was artificially raised; that though the artificial water line now reaches the street, there is a strip of submerged land between that and the boundary of the former lake level, conceded to belong to defendants if their theory of the law is correct, to which the state has no title and which they have a right to reclaim from its artificial condition and to exclude the public therefrom. So the primary question upon which the appeal really turns is, has the maintenance of the artificial level of the lake for upwards of 20 years given to the new level, as regards title to submerged lands, all the characteristics of a natural lake to the same extent? The trial court answered that in the affirmative. No other conclusion could have been reached consistent with recent decisions of this court on the same subject. In Smith v. Youmans, 96 Wis. 103, 70 N. W. 1115, it was held that an artificial condition of a water course or body of water, maintained for such length of time as to confer the right by prescription to maintain it permanently, is to all intents and purposes the natural condition. That was a case of the maintenance of an artificial lake level for more than 20 years substantially the same as in this case. True, the ultimate question for decision was, has a riparian proprietor, in the circumstances mentioned, the right to insist upon the artificial level of the water being maintained? but the conclusion was reached, as a deduction from the general principle that an artificial condition...