Ne-pee-nauk Club v. Wilson

71 N.W. 661, 96 Wis. 290, 1897 Wisc. LEXIS 316

• Court: Wisconsin Supreme Court
• Decided: May 21, 1897
• Status: Published

Opinion

NewMAN, J.

The only question in the case is whether the so-called “ Mud Lake ” is a natural, permanent,, inland body of water, such as is not properly a watercourse, and meandered by the government surveyors; for, if it is a natural inland body of water which is not properly a watercourse, the title of the riparian owner stops at the water line, and the title to the land which is under the water is in the state. This court has laid down one" rule for running water, and another for lakes and ponds. In the former case the riparian owner owns to the thread of the current; in the latter, to the water line. And no distinction has been made on account of the size of either stream or pond. It is unimportant if the common law, as related to the title to lands under lakes and ponds, was different. It is merely a question of local law. G-rants by the United States of lands ■bounded by lakes and streams are to be construed and given effect according to the law of the state in which the lands lie. And each state determines for itself to what extent it will retain and exercise its prerogative over lands under •such streams and bodies of water. Hardin v. Jordan, 140 U. S. 371; McLennan v. Prentice, 85 Wis. 427.

It is well settled in this state that grants by the United States, of lands bounded by a meandered lake or other permanent body of water, convey title only to the natural shore of the body of water, while the title to the land which is ■under the water is in the state. Diedrich v. N. W. U. R. Co. 42 Wis. 248. And the rule is the same whether the body of water can be made practically useful for the purposes of navigation or not (Boorman v. Sunnuchs, 42 Wis. 233), irrespective of its size or depth.

It is undisputed that Mud Lake was meandered by the government surveyors. It is clear that it is an inland body of water of permanent character. While it might with entire propriety and accuracy be called a marsh or swamp, the name by which it shall be designated is not controlling upon the question of the title to its bed. It has very little, if any, movement of its water from its head towards its outlet during the greater part of the year. It is said that the controlling distinction between a stream and a lake or pond is that in the one case the water has a natural motion,— a current,— while in the other the water is, in its natural state, substantially at rest; and this entirely irrespective of the size of the one or the other. But not every sheet of water in which there is a current from its head towards its outlet is therefore a stream. Angelí, Water Courses, 6th ed. (Perkins), § 4f. It is said that even the large lakes have .such a current. The trial court found that this was not a stream or watercourse, but was a “ shallow, muddy lake or marsh.” Such it is clearly shown to be by the evidence.

On the question of the ownership of the bed of lakes and ponds, see a note to Q-ouverneur v. National Ice Go. (134 N. Y. 355), in 18 L. B. A. 695.— Bep.

The plaintiff does not own the lake or tbe soil under it. It is owned by tbe state. The right of fishing and fowling upon such waters is in the owner of the soil which is under the water. Hardin v. Jordan, 140 U. S. 371; 8 Am. & Eng. Ency. of Law, 31; 3 Am. & Eng. Ency. of Law, note on p. 166, and cases cited; Washb. Easem. *410; Bristow v. Cormican, 3 App. Cas. 641. In this case it is in the public, which has-not in any way granted its right to the plaintiff. The plaintiff’s right to hunt and fish over this lake was equal to, but-not superior to, the right of either defendant. It had no-cause of action against the defendants. Its complaint was-properly dismissed on the merits.

By the Gowrt.— The judgment of the circuit court is affirmed.