Delaplaine v. Chicago & Northwestern Railway Co.

42 Wis. 214

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

Cole, J.

In a number of decisions made by this court, it has been held that the proprietor of lands on navigable streams takes usque ad filum aquae, as the boundary of his estate, subject to the public easement or right of navigation. It is not deemed necessary now to .discuss or allude to the principles on which these adjudications rest; it is sufficient to say that this was the rule laid down in Jones v. Pettibone, 2 Wis., 308, decided in 1853, and the same doctrine has been often reaffirmed since. Walker v. Shepardson, 2 Wis., 384; S. C., 4 id., 486; Mariner v. Schulte, 13 id., 693; Arnold v. Elmore, 16 id., 510; Harrington v. Edwards, 17 id., 586; Yates v. Judd, 18 id., 119. So far as the rights of the public are concerned, it is obvious that it makes little difference whether the riparian proprietor is regarded as holding to the center of the stream, or whether his title terminates at the margin thereof; because, in either case, the public has the right to' improve, regulate and control the bed of the stream and the flow of the waters therein, in the interest of navigation and commerce. Wisconsin River Improvement Co. v. Lyons, 30 Wis., 62; Arimond v. The Green Bay & Mississippi Canal Co., 31 id., 316. The title of the riparian proprietor in the bed of the stream itself is subject to this power of the public over the stream, as in the case of an ordinary highway by land. The question as to the ownership of the soil under the water, or in the bed of the stream, is one which each state is at liberty to determine for itself, in accordance with its views of local law and public policy; and if it chooses to concede the right of the riparian owner to the center of the stream, “ it is not for others to raise objections.” Barney v. The City of Keokuk, 4 Otto, 324. But though this rule obtains in regard to the ownership of the bed of navigablé streams, the case is quite different when we consider lands situated upon and adjacent to large lakes and other natural collections of fresh water which are navigable and adapted for the transportation by boats of the products of the country. There are dieta and decisions which hold, in reference to such bodies of water, that the riparian proprietor takes only to the. edge of the water in its ordinary condition, when unaffected by winds or other disturbing causes (Canal Comm’rs v. People, 5 Wend., 423; S. C., 17 id., 571, 597; State v. Gilmanton, 9 N. H., 461; Jakeway v. Barrett, 38 Vt., 316; Austin v. Rutland R. R. Co., 45 id., 215; Seaman v. Smith, 24 Ill., 521; Angell on Watercourses, §42), the proprietorship of the bed of the lake being in the state. This view commends itself to our judgment as sound and correct, and we have accordingly decided in the case of Diedrich v. The Northwestern Union Railway Co. (which will he announced at the same time as this), that the water’s edge is the boundary of the title of the riparian proprietor. The reasons for limiting the boundary to that line are fully stated in the above authorities, and need not be dwelt upon here. See, also, the opinion of Manning, J., in Rice v. Ruddiman, 10 Mich., 126-143.

But while the riparian proprietor only takes to the water line, it by no means follows, nor are we willing to admit, that he can be deprived of his riparian rights without compensation. As proprietor of the adjoining land, and as connected with it, he has the right of exclusive access to and from the waters of the lake at that particular place; he has the right to build piers and wharves in front of his land out to navigable waters in aid of navigation, not interfering with the public use. These are private rights incident to the ownership of the shore, which he possesses, distinct from the rest of the public. All the facilities which the location of his land with reference to the lake affords, he has the right to enjoy for purposes of gain or pleasure; and they oftentimes give property thus situated its chief value. It is evident from the nature of the case, that these rights of user and of exclusion are connected with the land itself, grow out of its location, and cannot be materially abridged or destroyed without inflicting an injury upon the owner which the law should redress. It seems unnecessary to add the remark, that these riparian rights are not common to the citizens at large, but exist as incidents to the right of the soil itself adjacent to the water. In other woi’ds,'according to the uniform doctrine of the best authorities, the foundation of riparian rights, ex m termini, is the ownership of the hank or shore. In such ownership they have their origin. They may and do exist though the fee in the bed of the river or lake be in the state. If the proprietor owns the bed of the stream or lake, this may possibly give him some additional right; but his riparian rights, strictly speaking, do not depend on that fact.

This whole subject is so ably and forcibly discussed and illustrated in the opinions of the law lords in Lyon v. Fishmongers’ Co., L. R., 1 App. Cas., 662, that we cannot more clearly express our views upon it than by quoting some of their remarks. One question considered in the case was, whether a riparian proprietor on the bank of a tidal navigable river had rights or natural easements similar to those which belong to a riparian proprietor on the bank of a natural stream above the flow of the tide; and whether such proprietor, whose frontage and means of access to such tidal river is cut off by an encroachment from adjoining land into the stream, suffers a loss or abridgment of any private right belonging to him as riparian proprietor, or is only damnified in common with the rest of the public. The Lord Chancellor (Lord CaiRíts), after fully stating the facts of the case, among other things, said: “Unquestionably the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him gua owner or occupier of any lands on the bank, nor. is it a right which, per se, he enjoys in a manner different from any other member of the public. But when this right of navigation is connected with an exclusive access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place; and it becomes a form of enjoyment of the land, and of the river in connection with the land, the disturbance of which may be vindicated in damages by an action, or restrained by an injunction. * * * I cannot entertain any doubt that the riparian owner on a navigable river, in addition to the right connected with navigation to which he is entitled as one of the public, retains his rights as an ordinary riparian owner, underlying and controlled by, but not extinguished by, the public right of navigation.” pp. 671-3.

Lord ChelmsfoRd observed: “ The Lords Justices said they were unable to find any authority for holding that a riparian proprietor, where the tide flows and reflows, has any rights or natural easements vested in him similar to those which have been held in numerous cases to belong to a riparian proprietor on the banks of a natural stream above the flow of the tide. But, with great respect, I find no authority for the contrary proposition, and I see no sound principle upon which the distinction between the two descriptions of natural streams can be supported. And it appears to me that cases have been decided which are strongly opposed to it. "Why a riparian proprietor on a tidal river should not possess all the peculiar advantages which the position of his property with relation to the river affords him, provided they occasion no obstruction to the navigation, T am at a loss to comprehend. If there ■were an unauthorized interference with his enjoyment of the rights upon the river connected with his property, there can, I think, be no doubt that he might maintain an action for the private injury.” pp. 677-8.

Lord Selboene said: “Upon principle, as well as upon those authorities,” which he had*referred to, “ I am of opinion that private riparian rights may and do exist, in a tidal navigable river .... But the rights of a riparian proprietor, so far as they relate to' any natural stream, exist jure natures, because his land has, by nature, the advantage of being washed by the stream; and if the facts of nature constitute the foundation of the right, I am unable to see why the law should not recognize and follow the course of nature in every part of the same stream.... With respect to the ownership of the hed of the river, this cannot be the natural foundation of riparian rights properly so called, because the word “riparian” is relative to the bank, and not the bed of the stream, and the connection, when it exists, of property on the bank with property in the bed of the stream depends, not upon nature, but on grant or presumption of law. The title to the soil constituting the bed of a river does not carry with it any exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it. It is, of course, necessary for the existence of a riparian right, that the land should be in contact with the flow of the stream- Even if it could be shown that the riparian rights of the proprietor of land on the bank of a tidal navigable river are not similar to those of a proprietor above the flow of the tide, I should be of opinion that he hada right to the river frontage belonging by nature to his land, although the only practical advantage of it might consist in the access thereby afforded him to the water, for the purpose of using, when upon the water, the right of navigation common to him with the- rest of the public. Such a right of access is his only, and is his by virtue and in respect of his riparian property; it is wholly distinct from the public right of navigation.” pp. 682-4.

After this lucid and most satisfactory exposition of the foundation of riparian rights, showing that they are appurtenant to the ownership of the land on the shore or bank of the lake or stream, without reference to the title in the bed, it remains to determine whether, in case these rights are wholly destroyed or materially lessened in value by a railroad company in the construction of its road, the injury to the riparian proprietor is actionable. It was claimed by the learned counsel for the defendant company, that, because it was authorized by its charter to build a road between certain designated points, it had the right to occupy, in the construction of its road, any land -of the state between those points, in other words, had the right to build its road across the lake in the manner it did, and, if an injury has resulted to the riparian owner, it is damnum absque vnfaria. I.t may be conceded, for the purposes of the argument, that the company had the right by its charter to occupy the bed of the lake in the construction of its road; but this does not imply an intention on the part of the legislature to relieve the company from its common-law liability in case of injury to a riparian owner. 'Whether the legislature could, under the constitution, authorize the company to destroy or materially impair riparian rights without making compensation, is a question we need not consider, as there is nothing to warrant the assumption that the legislature attempted to do this. The legislature doubtless intended that the company, in the execution of its chartered powers, would make compensation for any damage inflicted upon a landowner, where a liability was imposed at common law. The simple question, therefore, is, If the plaintiffs’ riparian rights were destroyed or materially impaired by the construction and maintenance of the defendant’s railway across Lake Monona, are they entitled to recover damages therefor? This question, we think, must receive an affirmative answer.

There was an answer put in by the defendant denying all liability under the circumstances, and the cause was tried upon the merits. But the main' question discussed on the argument was, the sufficiency of the complaint, and the alleged error in overruling the demurrer to it. The cause of action stated in the complaint in substance is, that the plaintiffs own lots abutting upon Lake Monona, a navigable body of water, and that the defendant, without their consent, constructed its road within the water of the lake, but so near the front of their lots as to cut off their access from the lots to the body .of the lake, leaving in front of their lots a pool of stagnant -water, by which the lots have been depreciated in value. This plainly shows an interference with the natural flow or action of the water; an obstruction of the access to and from the lots of the plaintiffs to the body of the lake. It states a permanent injury to their property, diminishing its market value. We are at a loss to understand why the plaintiffs should not recover such damages for this infringement upon or destruction of their riparian rights, as they may prove they have actually sustained. These riparian rights are undoubted elements in the value of property thus situated. If destroyed, can any one seriously claim that the plaintiffs have not suffered a special damage in respect to their property, different both in degree and in kind from that sustained by the general public? It seems to us not.

The case of Chapman v. The Oshkosh & Miss. R. R. Co., 33 Wis., 629, is a direct authority that such damages are actionable. The doctrine of that case was sharply criticized on the argument as unsound, and an attempt was made to distinguish it from the case at bar. But in principle the cases áre not distinguishable, so far as the claim for damages founded on the deprivation or destruction of riparian rights was concerned. In that case, these rights were held to be property, of which the plaintiffs could not be deprived without compensation. The plaintiffs there owned- several lots fronting on Fox river, a navigable stream, which they used in connection with their saw mill, for getting logs from the river to their mill, and in shipping lumber therefrom. The railroad company, by authority of the legislature, built a bridge over the river in such a manner as to cause an interruption or breakage of the river front. This obstruction to the access of the river and the natural connection of the land with the water, it was held, furnished ground for a claim for compensation on the part of the owners. In that case, as in this, riparian rights were directly interfered with, which the owners of the property on the hank were entitled to enjoy and retain in connection with their premises, and which rights enhanced the market value of their property. ¥e thought then, and think now, that the owners were entitled to compensation for this damage or injury. "We consider the decision well sustained by principle and authority. It is powerfully vindicated by the case of Lyon v. Fishmongers’ Co., supra, decided in the House of Lords in 1876.

It is admitted that there are decisions of able and intelligent courts holding a contrary rule, and denying all right to compensation in such cases to the riparian owner. And, in addition to the authorities cited in Chapman’s case taking that view of the question, is the case of Stevens v. Paterson & Newark R. R. Co., 34 N. J., 532, which decided that an owner of land adjoining the Passaic river, a public navigable stream, might be deprived of all his riparian rights and the benefits incident to his property from its contiguity to the water, without compensation. But in that case there is an able and learned opinion given by the chancellor, dissenting from the doctrine held by the majority of the court, and stating the rule of law as laid down in Chapman’s case. The chancellor observes: “ The right of an owner of land upon tide waters to maintain his adjacency to it and to profit by this advantage, is founded upon a natural sense of justice which pervades the community, which, although the decisions of courts may overcome, neither they nor the subtle and artificial reason of learned jurisconsults will ever eradicate.” p. 556. But we are not inclined to prolong the discussion on this point, and close with the remark that if the matter were res integra, unaffected by decision, we should hold that the destruction-of or material interference with riparian rights was, upon principle, an actionable injury.

In Chapman’s case, among other authorities relied on to sustain the decision there made, was the case of the Duke of Buccleuch v. The Metropolitan Board of Works, L. R., 5 H. L., 418. It is claimed that the doctrine of that case is inapplicable to the question before us, because it arose under what is called the Lands Clauses Consolidation Act, which gave damages in case land was “ injuriously affected ” by any work authorized by the act. But the test applied to determine the proper meaning of the words “injuriously affected,” as giving a right to compensation, was, whether the act done in carrying out the works in question was an act which would have given a right of action if the works had not been authorized by act of parliament. Lyon v. Fishmongers’ Co., supra; Metropolitan Board of Works v. McCarthy, L. R., 7 H. L., 243. In other words, if the act affecting the land had been done by an individual, he would be liable for the damages. This remark shows that the decisions made under that act are in point.

"We have observed that the injury complained of in this case was special and peculiar to the plaintiffs, within the authorities, and not suffered by the public generally. It follows from these views that the judgment of the circuit court must be affirmed.

By the Court.- — ’Judgment affirmed.