Illinois Steel Co. v. Bilot

84 N.W. 855, 109 Wis. 418, 1901 Wisc. LEXIS 256

• Court: Wisconsin Supreme Court
• Decided: March 19, 1901
• Status: Published

Opinions

The following opinion was filed January 8, 1901:

Marshall, J.

We understand the statement which appears in the record, as to the proof of title upon which plaintiff rested its claim and secured the judgment appealed from, to mean this: A record was exhibited which purported to show that the United States or the state of Wisconsin, most likely the former, prior to 1872, made a patent, in form conveying to private ownership a certain government subdivision of land within and according to the public land survey; that such title as was thus acquired was by mesne conveyances vested in plaintiff before the commencement of this action; and that the premises in controversy are within the boundaries, of such government subdivision according to such survey. That proof made out a prima facie title. The case seems to have been tried and decided upon the theory that it was sufficient to entitle plaintiff to recover unless defendants were able to show a better title by adverse possession.

The learned counsel for respondent, evidently assuming that the actual possession of lands submerged by water, necessary to satisfy the requisites of adverse possession so as to gain title in that way, is difficult if not impossible, encouraged defendants’ witnesses to make it appear as clearly as possible that when the adverse possession in controversy commenced, and for a long time thereafter reaching up to within about thirteen years of the time of the commencement of the action, the particular land in question was covered by water from three to nine feet deep; that such was its condition when appellants took possession thereof; and that there had been no change in that regard except by .artificial filling.

There is evidence tending to show that there was some dry land within the territory over which Muza assumed dominion in 1872. But the indications are that the greater - part of such territory was then covered by the waters of Lake Michigan or of an arm of the lake partaking of its character, or by some expanse of water governed'by the law relating to the title to the beds of lakes and ponds, and that "the premises in question were formerly a part of .such submerged land. Now, if such indicated facts are the truth of the matter, the land belongs to. the state of "Wisconsin regardless of whether the United States or the state has in form transferred it to private ownership. The law in that regard is too well settled to warrant any discussion of it here. This court has been over the whole subject many times in recent years. The title to the beds of all lakes and ponds, and of rivers navigable in fact as well, up to the line •of ordinary high-water mark, within the boundaries of the state', became vested in it at the instant of its admission into the Union, in trust to hold the same so as to preserve to the people forever the enjoyment of the waters of such lakes, ponds, and rivers, to the same extent that the public are entitled to enjoy tidal waters at the common law. , A patent from the United States, so far as it purports to cover any of such lands, whether made before the state was admitted into the Union or thereafter, is ineffectual. It has been so repeatedly held. A government patent of land bordering on a lake or pond, regardless of the boundaries thereof according to the government survey, does not convey title to the lands below the line of ordinary high-water mark. The United States never had title, in the Northwest Territory out of which this state was carved, to the beds of lakes, ponds, and navigable rivers, except in trust for public purposes ; and its trust in that regard was transferred to the state, and must there continue forever, so far as necessary to the enjoyment thereof by the people of this commonwealth. Whatever concession the state may make without violating the essentials of the trust, it has been held, can properly be made to riparian proprietors. Under that, by long-established judicial policy, which has become a rule of property, a qualified title to submerged lands of rivers-navigable in fact has been conceded to the owners of the shores. Otherwise the title to lands under all public waters is in'the state, and it is powerless to change it'. It cannot transfer such title by grant or otherwise, nor can title thereto' be obtained by adverse possession, at least unless such adverse possession shall continue for the term of forty years. Hence we must presume from the evidence that the title to the land in dispute is where the evidence tends to show it is. We should say in passing that the term “ qualified title ” as above used refers to that interest in the beds of navigable streams-which has passed to private ownership according to the uniform holdings of this court,— a full title, subject to the public rights which were incident to the lands forming such beds at the time of the creation of the trust above mentioned. No private ownership has been conceded which displaces or materially affects such public rights. As to them the state has not abdicated and cannot abdicate its trust.

There is no need of enlarging on this matter. As before indicated, this court has in recent years several times declared the law as here stated, grounding such declaration upon indisputable principles and the law as laid down on the subject by the supreme court of the United States. McLennan v. Prentice, 85 Wis. 427; Priewe v. Wis. State L. & I. Co. 93 Wis. 534; Ne-pee-nauk Club v. Wilson, 96 Wis. 290; Willow River Club v. Wade, 100 Wis. 86; Pewaukee v. Savoy, 103 Wis. 271; Barney v. Keokuk, 94 U. S. 324; Railroad Co. v. Schurmeir, 7 Wall. 272; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387; Yates v. Milwaukee, 10 Wall. 497.

So plaintiff’s prima faeie title was overcome-by the evidence tending to show that the premises in question were naturally a part of the bed of Lake Michigan, or some arm or bay thereof, .or some body of water having the incidents, of a lake; and the verdict should not have been directed in plaintiff’s favor. If the fact be that sucb is the natural character of the land, plaintiff cannot maintain ejectment therefor in any event, even if it shall establish ownership of the natural shore, though, of course, in such circumstance, it would not be without remedy for any wrong to it not common to the public. Austin v. Rutland R. Co. 45 Vt. 215; Coburn v. Ames, 52 Cal. 385; Gray v. Bartlett, 20 Pick. 186; Stockham v. Browning, 18 N. J. Eq. 390.

What has been said regarding plaintiff’s title requires a reversal of the judgment in any event, for it can only recover on the strength of its own title, not on the weakness of Bilot's. However, it is deemed best to correct some. erroneous ideas that seem to have influenced the direction of the verdict as bearing on appellant’s claim of title. If it shall finally turn out that the premises in question were not originally a part of the bed of Lake Michigan, nor of any expanse of water partaking of the character of a lake a,s regards the title to the bed thereof, but were part of the bed of navigable waters of such a character that a qualified title thereto passed to the owner of the shore as an incidentthereof, then they are subject to the law of adverse possession. And if in such circumstances Muza, under whom Bilot claims, maintained from 1872 until Bilot took possession of the premises a condition which disseised .the true owner, and Bilot continued that condition so as to cover the full period of twenty yea^s, his title is governed by the principles declared in Illinois S. Co. v. Budzisz, 106 Wis. 499, and the settled law on the subject.

It is not true, as seems to have been supposed, that adverse possession of the premises was impossible while they were covered by water. Notwithstanding' such condition the true owner may have been disseised, and that was all that was necessary to start the limitation period running. Any act or acts sufficient to destroy the true owner’s dominion over the property, whatever its character, is a dis-seisin, within the meaning of the limitation statute. 3 Washb. Real Prop. *495. Physical exclusion by an inclosure' of the property of some kind is by no means necessary; neither are the requisites of sec. 4212, Stats. 1898, essential. Wilson v. Henry, 40 Wis. 594; Lampman v. Van Alstyne, 94 Wis. 417. It has been held that evidence of the mere taking of seaweed to the exclusion of all others is sufficient proof of disseisin to carry a case to the jury on that subject. Hast Hampton v. Kirk, 84 N. Y. 215. Actual, visible, hostile appropriation of the premises to the exclusion of the true owner in any way satisfies all the requisites of disseisin, and that condition may be created by any means that entirely exclude the true owner from the property. It does not require constant residence of the appropriator on the property. Private interest in submerged land of the character we are discussing, prima facie at least, exists only as an incident of title to the bank or shore. He who is in. actual possession of that is constructively in possession of everything that is incident thereto. If possession of the former ripens into title, the title to the latter goes with it. Gould, "Waters, § 3Y, and cases cited in the notes.

Applying the principles last stated to the evidence as to defendants’ title, it is easily seen that the case in that respect should have been submitted to the jury even upon the trial court’s theory as to plaintiff’s title. There was evidence tending to show that for more than twenty years before the commencement of this action the person holding prima faoie government title had been, in ■ the right now claimed by Biloi, disseised thereof. There is evidence tending to show that Muza, from 1872 till Bilot commenced the artificial change of the property, exercised such dominion over the same as to prevent any person from enjoying it in any way except by his permission. Such evidence ténds to show more than a mere claim of dominion. That clearly would be insufficient. ■ It shows .that there were physical acts of prohibition, so that Muza’s claim was notorious, recognized, and submitted to, and that such acts were accompanied by actual occupation and enjoyment of the beach or dry land adjoining, if -there was any. In the face of such evidence, plaintiff was not, in any phase of the case, entitled to the direction of a verdict, but the cause should have been submitted to the jury under proper instructions.

It is hoped that on the next trial of this case all the facts will be clearly brought out in the light of all the legal principles applicable thereto, and that such principles will be kept clearly in view; also that the precise location of the property in dispute will be shown, so that it can be identified with reference to the original shore line and the present shore line. That there was a failure, upon the trial we have reviewed, in respect to the matters referred to, is most clear. That has rendered it impracticable for us to lay out a definite line for future guidance in the case. The assumption that plaintiff’s' title was good originally, merely because it came from the government, and the assumption that, merely because the land was submerged, it could not be held adversely, and the further assumption that actual possession was necessary independent of actual possession of the shore, all seem to have had influence with the trial court.

By the Oourt.— The judgment of the superior court is reversed, and the cause remanded for a new trial.

BaRdeeN, J., took no part.