State v. McFarren, 300

• Decision Date: 05 March 1974
• Docket Number: No. 300,300
• Citation: 62 Wis.2d 492,215 N.W.2d 459
• Parties: STATE of Wisconsin, Appellant, v. Gerald McFarren, Respondent.
• Court: Wisconsin Supreme Court

Page 459

215 N.W.2d 459

62 Wis.2d 492

STATE of Wisconsin, Appellant, v. Gerald McFarren, Respondent.

No. 300.

Supreme Court of Wisconsin.

March 5, 1974.

Robert w. Warren, Atty. Gen., Steven M. Schur, Asst. Atty. Gen., Madison, for appellant.

Lauer & Meyer, Ralph M. Lauer, Clintonville, for respondent.

WILKIE, Justice.

Two legal issues are raised on this appeal:

1. Did the circuit court err in dismissing the petition on the ground that the order lacked a finding of fact on the nonexistence of a bulkhead line?

2. Did the court err in dismissing the petition on the ground that the criminal transcript had not been made a part of the record?

NONEXISTENCE OF A BULKHEAD LINE

What is a Bulkhead Line?

The Legislative Council Notes to secs. 30.04, 30.11 and 30.12, Wisconsin Statutes Annotated, indicate that 'bulkhead line' is the term which replaced 'shore line' in previous statutes to conform to terminology used by the federal government and that no substantive change was intended--only a change in terminology. Sec. 30.11, Stats., explains how a bulkhead line is established: Any municipality may establish such a line by ordinance, subject to DNR approval. While the line 'shall conform as nearly as practicable to the existing shores' certain exceptions are allowed. Such lines are established by filing with the department a map indicating the line and the existing shore and a copy of the ordinance establishing the line. Thus, a bulkhead line is not merely the natural shoreline but is a line legislatively established by a municipality which may differ from the existing shore line. A bulkhead line should also be distinguished from the low- and high-water marks on the shore. The ordinary low-water mark for a fluctuating lake has been difined as 'the line or level at which the waters of the lake usually stand when free from disturbing causes . . ..' ¹ The term 'Ordinary high-water mark' was most recently defined in State v. McDonald Lumber Co.: ²

"By ordinary high-water mark is meant the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. Lawrence v. American W.P. Co., 144 Wis. 556, 562, 128 N.W. 440. And where the bank or shore at any particular place is of such a character that it is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark."

In McDonald it was stated that the state's title to the lake bed runs to the ordinary high-water mark. ³ However, a riparian owner has a qualified right to the land between the actual water level and the ordinary high- water mark--he may exclude the public therefrom but he may not interfere with the rights of the public for navigation purposes. ⁴

Burden of Proof.

The controlling issue which the parties raise here is on whom does the burden of proof lie in establishing whether or not a bulkhead line exists. Respondent argues that three elements of proof are necessary before a violation of sec. 30.12, Stats., can be found: The State must prove that material has been deposited in the water bed without a permit, and that no bulkhead line has been established (sub. (1)(a)), or that the deposit is beyond a lawfully established bulkhead line (sub. (1)(b)). The State argues, however, that it should not be required to prove the nonexistence of the line but that as an affirmative defense respondent should have the burden of proving that a bulkhead line exists which allows him to fill material in the lake bed. McCormick contains the best discussion of the factors involved in allocating burden of proof. It includes five factors as determinative of the burden: ⁵

(1) 'the natural tendency to place the burdens on the party desiring change,'

'The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure or proof or persuasion. The rules which assign certain facts material to the enforcibility of a claim to the defendant owe their development partly to traditional happen-so and partly to considerations of policy.' ⁶

'The customary common law rule that the moving party has the burden of proof--including not only the burden of going forward but also the burden of persuasion--is generally abserved in administrative hearings. Section 7(c) of the APA, for example, provides: 'Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof.' State courts have reached the same result in connection with state administrative proceedings.' ⁷

In the case at bar, this factor would point to placing the burden on the State.

(2) 'special policy considerations such as those disfavoring certain defenses,'

This factor is inapplicable here; there would appear to be no reason why a defense based on existence of a bulkhead line should be disfavored.

(3) 'convenience,'

'A doctrine often repeated by the courts is that where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue. Examples are the burdens commonly placed upon the defendant to prove payment, discharge in bankruptcy, and license. This consideration should not be overemphasized. Very often one must plead and prove matters as to which his adversary has superior access to the proof.' ⁸

In speaking of a criminal statute, Corpus Juris Secundum states:

'Where the subject matter of a negative averment in the indictment, or a fact relied on by accused as a justification or excuse, relates to him personally or otherwise lies peculiarly within his knowledge, the general rule is that the burden of proof as to such averment or fact is on him. Thus, accused has the burden of proving that he possessed a license, where a license was necessary to lawfully perform a particular act or engage in a particular occupation, as appears in Licenses § 71. The prosecution need not adduce positive evidence to support a negative averment, the truth of which is fairly indicated by established circumstances and which, if untrue, could be readily disproved by evidence probably within accused's control.' ⁹

In this case, however, the existence of a bulkhead line is not a fact peculiarly within respondent's knowledge. The existence of such a lime must, under sec. 30.11, Stats., be registered with the municipality's clerk, the county register of deeds, and with the DNR. Thus, for the DNR to prove the nonexistence of such a line, it need merely check its records. If proof of the existence of such a line is easier for any party, it would seem to be the DNR.

(4) McCormick calls this factor 'fairness;' it actually takes into consideration two factors: (a) proof of exceptions; and (b) proof of negatives.

(a) Proof of exceptions. McCormick states:

'In allocating the burdens, courts consistently attempt to distinguish between the constituent elements of a promise or of a statutory command, which must be proved by the party who relies to the contract or statute, and matters of exception, which must be proved by his adversary. Often the result of this approach is an arbitrary allocation of the burdens, as the statutory language may be due to a mere casual choice of form by the draftsman. However, the distinction may be a valid one in some instances, particularly when the exceptions to a statute or promise are numerous. If that is the case, fairness usually requires that the adversary give notice of the particular exception upon which he relies and therefore that he bear the burden of pleading.' ¹⁰

And in Corpus Juris Secundum:

'. . . one who relies on an exception to a general rule or statute has the burden of proving that the case falls within the exception, unless the nonexistence of the exception is made a condition of the application of the rule.' ¹¹

In speaking of criminal statutes, C.J.S. states:

'In general, accused has the burden of proving, as a matter of defense, that he is within an exception in the statute creating the offense, at least, where such exception is not part of the enacting clause, but is a proviso thereto, or is in fact not part of the description of the offense, as where the exception is not part of the crime but operates to prevent the act otherwise included in the statute from being a crime. Accordingly, the prosecution owes no duty to prove that accused is not within the exception. Such a statute is a mere rule of procedure and has nothing to do with shifting the burden of proof. Where, however, an exception is part of the enacting clause, or where, whether appearing as an exception or a proviso, its terms are in fact part of the description of the offense, the burden is on the state to prove that accused is not within such exception or proviso, except where the facts to prove such negative are peculiarly within the knowledge of accused, as appears § 571. It has been stated, however, that the preceding rule cannot be mechanically applied, and the real question is whether the exception is so incorporated with the clause defining the offense that it becomes in fact a part of the description, and such question cannot be determined by the mere position of the exception in the text.' ¹²

We conclude that the part of sec. 30.12, Stats., dealing with bulkhead lines is not phrased as an exception but rather as part of the description of the violation. Nor is the existence of the line peculiarly within the knowledge of the respondent. In these two particulars the 'bulkhead line' portion of the statute differs from the 'permit' portion of the statute, which is phrased as an exception and would be a fact peculiarly...