Willow River Club v. Wade

42 L.R.A. 305, 76 N.W. 273, 100 Wis. 86, 1898 Wisc. LEXIS 231

• Court: Wisconsin Supreme Court
• Decided: June 23, 1898
• Status: Published

Opinions

Cassoday, C. J.

This is an action for trespass to recover $20 damages for taking fish, commenced in justice’s court. The defendant answered to the effect that he had a right to take the fish, and that the title to land would come in question, and gave the requisite bond, and the case was thereupon transferred to the circuit court,, where the cause was tried.

It appears from the record, and is undisputed, that at the times mentioned the plaintiff was a legally constituted corporation, duly organized and existing under the laws of Minnesota; that May 31, 1896, the plaintiff was the owner and in the possession of the 200 acres of land described; that the "Willow river was a stream or river, not meandered, flowing through and over said land and premises; that on or about June 1, 1896, the defendant, against the protest of the plaintiff and without its consent, entered upon said stream for the purpose of fishing therein, from the “ John Kelley road,” so called, a public highway which runs from John Kelley’s premises to said Willow river at a point where it is upon the plaintiff’s land, and from thence, by means of a boat, passed from said road upon and down said stream upon said premises in a boat, and from said boat, while the same was upon said stream at the points above and below said road, and within the boundaries of the premises described, fished for, caught, and took with hook and line from said stream, at said point on said stream, ten fish called 'trout, of the value of one dollar, said fish then being and swimming in the water of said stream, and did carry said trout away, and applied them to his own use, against the will and protest of the plaintiff, returning from said Willow river by said road known as the “ John Kelley road; ” that Willow river is about forty miles long in a direct line from source to the mouth, but about seventy miles long in the windings of the stream; that Willow River Falls is about seven miles from the mouth of the river by a direct line; that the point where the defendant entered upon the river is about one and a half miles below the falls, and within the back water of a dam erected about one half a mile below, at Little Falls; that he entered upon the stream from a public highway known as the “Kelley road,” where the river was 200 feet wide and from eight to ten feet deep; that from the early settlement of the country until 1882 logs were driven down the river upon freshets and by the aid of dams to St. Croix Lake; that after 1865 millions of feet of logs were so driven each year, but that since 1882 logs had only been driven down the stream to New Richmond, eighteen miles above the mouth of the river in a direct fine; that in the year 1895, 5,000,000 feet had been driven down to New Richmond; that below the main falls is a succession of rocky rapids; that persons had been up the river from Hudson to the falls several times in small rowboats, once in 1853, and again in 1868; that in going over the rapids below the falls they used their oars as poles, and pushed from the bottom; that it was, and always had been, impossible, except in times of high water, to get up the stream as far as the main falls in an ordinary rowboat, without dragging or pushing it on the bottom of the river in numerous shallow places; that several streams flow into Willow river below New Richmond and above the falls; that Ten Mile creek flows in below New Richmond, and runs a thirty-inch wheel, which furnishes power for a gristmill at Boardman; that there is thirty to forty per cent, more water below the falls than above and at a point above the point of the alleged trespass; that, at an ordinary stage of water in the river, the narrowest place below the falls was thirty-three feet in width; that the average width, according to measurement taken, was fifty feet; that at a point where it was fifty feet wide the depth was from sixteen to forty-two .inches; that at a point where it was 132 feet wide the depth was from four to twenty-five inches; that at Kelley’s ford, where the trespass is alleged to have been committed, the river is 200 feet wide, and from eight to ten feet in depth; that wangans, bateaux, canoes, and rafts had been run down the river as early as 1855 and 185J; that the state had stocked the Willow river with thousands of trout during each of the years 1885 to 1892, inclusive; that there were no screens or nettings-inclosing or bounding the stream so as to close the fish upon the land and premises described; that fish for miles up and down the stream were at liberty to go on and off the premises without hindrance or obstruction.

At the close of the evidence the court directed a verdict in favor of the defendant, and from the judgment entered thereon plaintiff brings this appeal.

The precise question presented by the facts stated is whether the defendant, by stepping from a public highway into a boat upon the river, and while floating thereon, catching the fish in question from the river by hook and line, committed a trespass upon the premises of the plaintiff. The proper solution of the question depends upon the proper determination of one or more other questions discussed at the bar. Counsel for the plaintiff is undoubtedly correct in claiming that at common law the public right of fishery in rivers was confined to such portions of the rivers as were covered by the ebb and flow of the sea, and that the right of fishing in fresh-water rivers was exclusively in the abutting landowners. Thus, it is held, in quite a recent case, that “the public cannot, by prescription or otherwise, obtain a legal right to fish in a non-tidal river, even though it be navigable.” Smith v. Andrews [1891], 2 Ch. Div. 678. One of the grounds given for such distinction between fresh and salt water rivers is that the title to the bed or soil under each of such tidal rivers is in the British crown. The public lands in the thirteen original states, respectively, were, of course, originally granted by the crown directly, by way of charters, patents, or otherwise, to chartered governments,to provincial establishments, to proprietary governments,— as to William Penn and to the Duke of York, — or to individuals ; and then, upon the breaking out of the Revolution and the organization of each of the colonies into a separate and independent state, confirmed by the treaty of peace in 1183, the title to such lands as were not held by private tenure, together with all the powers of sovereignty, 'the prerogatives and regalities which had previously either belonged to the crown or to parliament, bpcame immediately and rightfully vested in such state, since there was no national government until several years afterwards. Martin v. Waddell, 16 Pet. 416. See, also, Den v. Jersey Co. 15 How. 426; Smith v. Maryland, 18 How. 71; Cooper v. Telfair, 4 Dall. 14; Smith v. Maryland, 6 Cranch, 286; Danforth's Lessee v. Thomas, 1 Wheat. 155; Owings v. Speed, 5 Wheat. 420; Shively v. Bowlby, 152 U. S. 1. It was perfectly natural, therefore, for the thirteen original states, whose shores were washed by the Atlantic, as the shores of Great Britain were washed by the seas, to apply the English common law, and hold, as a general rule, that beds of tidal rivers belonged to the state, but that the beds of fresh-water rivers belonged to the abutting landowners. Smith v. Maryland, 18 How. 71. And yet in some of those states the courts extended the common-law rule, applicable only to tidal rivers, to certain navigable fresh-water rivers. Subsequently, when the national government was framed and organized, and as a part of the general plan of the same, Virginia ceded the Northwest Territory, including what is now Wisconsin, to the United States, and thereafter all lands acquired became the property of the federal government. The United States has only parted with such title by specific grants, patents, pre-emptions, and other modes of conveyance and transfer. The rulings of the courts in the original states, and perhaps a failure in some cases to fully appreciate the difference in the source of title to land in the new and old states, seem to have led to more or less confusion, if not conflict, in the decisions of state courts, as to whether the title to the beds of navigable freshwater rivers was in the state or in the abutting landowners. Some of the new states, and probably most of them, hold that such title is vested in the state, regardless of the ebb and flow of the sea. Shively v. Bowlby, 152 U. S. 2. This court has held from the beginning that the owners of the bank of a navigable stream by purchase from the United States, even when meandered, were presumed to be such owners to the middle of the stream in front of such purchase. Jones v. Pettibone, 2 Wis. 308: Walker v. Shepardson, 2 Wis. 384; S. C. 4 Wis. 486; Mariner v. Schulte, 13 Wis. 692; Arnold v. Elmore, 16 Wis. 509; Wis. River Imp. Co. v. Lyons, 30 Wis. 61; Wright v. Day, 33 Wis. 260; Olson v. Merrill, 42 Wis. 203; Norcross v. Griffiths, 65 Wis. 599; Janesville v. Carpenter, 77 Wis. 288. Of course, such owners take and hold such title for the use of the public. The only utterance to the contrary in this court is a suggestion of Chief Justice Dixon in the Lyons Case, which Chief Justice Ryan characterized as a dictum based upon a former dictum of the federal court, but which had thereafter been corrected in that court. Olson v. Merrill, 42 Wis. 210, 211. In the last federal case thus referred to, Mr. Justice Beadlet, speaking for the court, said that “ by the common law such additions [accretions] to the land on navigable waters belonged to the crown; but, as the only waters recognized in England as navigable were tide waters, the rule was often expressed as applicable to tide waters only, although the reason of the rule would equally apply to navigable waters above the flow of the tide, — that reason being that the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the public advantage and convenience. The confusion of navigable with tide waters, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. . . . Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several states themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.” Barney v. Keokuk, 94 U. S. 337, 338. The views thus expressed have frequently since been sanctioned. Packer v. Bird, 137 U. S. 661, 671; Hardin v. Jordan, 140 U. S. 371, 382; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254; Eldridge v. Trezevant, 160 U. S. 466. In these cases it is held that' “ whatever incidents and rights attach to the ownership of property conveyed by the United States, bordering on navigable streams, will be determined by the states in which it is situated, subject to the limitation that their rules do not impair the efficacy of the grant, or the use and enjoyment of the property by the grantee.” “Grants by the United States of its public lands bounded on streams and other waters, made without reservation or restriction, are to be construed, as to their effect, according to the law of the state in which the lands lie.” “ In Wisconsin the ownership of riparian proprietors extends to the center or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels; and the law, so settled by the highest court of the state, is controlling in this court as a rule of property.” To the same effect, Shively v. Bowlby, 152 U. S. 40. On the contrary, the riparian proprietor upon navigable lakes and ponds takes the land only to the water’s edge. Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Priewe v. Wis. State L. & I. Co. 93 Wis. 546.

In the case at bar it is conceded that the plaintiff owned the land on both sides of the stream, and hence has title to the bed of the stream. But the mere fact that the title to the bed of the stream is in the plaintiff is not necessarily conclusive that the plaintiff has title to the fish in the river. As indicated, at common law the public right of fishing in rivers was confined to such portions of the rivers as were covered by the ebb and flow of the sea. The reason why the public rights terminated, and the private rights began, just where the waters of the river ceased to be impregnated with salt and were entirely fresh, might be difficult to explain, were it not for the fact that the admiralty jurisdiction of the English courts over such rivers was also limited to such tidal waters; and, as stated in the portion of the opinion of Mr. Justice Bradley in Barney v. Keokuk quoted above, “ the only waters recognized in England as navigable were tide waters, . . . although the reason of the rule would equally apply to navigable waters above the flow of the tide,” upon which commerce might be carried on. Long prior to that decision, Chief Justice Taxey, in an able opinion, said: “There is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public navigable water, on "which, commerce is carried on between different states or nations, the reason for the jurisdiction is precisely the same; and, if a distinction is made on that account, it is merely arbitrary, without any foundation in reason, and, indeed, would seem to be inconsistent with it. . . . In England, therefore, tide water and navigable water are synonymous, terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers as contradistinguished from private ones, and they took the ebb and flow of the tide as the test because it was a convenient one and more easily determined the character of the river. Hence the established doctrine in England that the admiralty jurisdiction is confined to the ebb and flow of the tide; in other words, it is confined to public navigable waters. . . . In the old thirteen states the far greater part of the navigable waters are tide waters; and in the states which were at that period in any degree commercial, and where courts of admiralty were called on to exercise their jurisdiction, every public river was tide water to the head of navigation. And, indeed, until the discovery of steamboats, there could be-nothing like foreign commerce upon waters with an unchanging current resisting the upward passage. The courts-of the United States, therefore, naturally adopted the English mode of defining a public river, and consequently the boundary of admiralty jurisdiction. It measured it by tidewater. . . . The description of a public navigable river was substituted in the place of the thing intended to be described.” The Genesee Chief v. Fitzhugh, 12 How. 454, 455. The learned chief justice clearly shows that to adhere to the-letter of the English definition, and ignore its spirit, would be to exclude from admiralty jurisdiction, not only most of the great rivers of this country, but also the great lakes,, which he aptly characterizes as “ in truth inland seas.”

The doctrine of that case, to the effect that the admiralty jurisdiction of the federal courts, as granted by the constitution, is not limited to tide water, but extends wherever vessels float and navigation successfully aids commerce, has since been repeatedly approved and affirmed. The Hine v. Trevor, 4 Wall. 555; In re Garnett, 141 U. S. 14, 15. In Barney v. Keokuk, 94 U. S. 338, Mr. Justice Bradley said that “ the confusion of navigable with tide water bad the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and, under the like influence, it laid the foundation in many states of doctrines with regard to the ownership of the soil in navigable waters above tide water at variance with sound principles of public policy.” Such jurisdiction is constantly being exercised over the navigable rivers of the country, including those of Wisconsin. And so the supreme court of the United States, in an able opinion by Mr. Justice Field, has. expressly held that “ the doctrine of the common law as to-the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all, of the navigability of waters. The test by which to determine the navigability of our rivers is’ found in their navigable capacity. Those rivers are public navigable rivers in law which are navigable in fact. Rivers are navigable in fact when they are-used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of' trade and travel on water.” The Daniel Ball, 10 Wall. 557. That case was expressly approved in a later case, where it. was held that, “ if a river is not of itself a highway for commerce with other states or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the state,, then it is not a navigable water of the United States, but only a navigable water of the state.” The Montello, 11 Wall. 411-415; S. C. 20 Wall. 430-439. This last case arose on the Fox river, in this state, which originally was not fitted for useful commerce, but only navigated by Durham boats; and it was held that the navigability of a stream does not depend upon the mode by which commerce is conducted upon it, nor upon the difficulties attending the navigation, but upon the fact whether the stream, in its natural state, is such as to afford a channel for useful commerce. Mr. Justice Davis, writing the opinion of the court in that case, said that the Fox river was one of the highways referred to in, and secured by, the Ordinance of 1187, and which was expressly confirmed by act of Congress of August 7, 1789 (1 Stats. at Large, 50). The provision of the fourth of the “ articles of compact,” contained in that Ordinance, and sec. 3 of the enabling act of Congress for the admission of this state into the Union, is copied almost literally into our state constitution, where it is declared that “ the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state, as to the citizens of the United States, without any tax, impost or duty therefor.” Const. Wis. art. IX, sec. 1. This provision is certainly broad enough to include all streams leading into the two great rivers therein mentioned.

It is true that Willow river was not meandered, and the question recurs whether, from the undisputed evidence, we can say that it was a navigable stream within the principles of law mentioned, and especially the decisions of this court. It has frequently been held that the rivers of this state, capable of floating the products of the country — such as logs and rafts of lumber — to mill or market, are common public highways. Whisler v. Wilkinson, 22 Wis. 572. That rule was applied to the Kickapoo river, which was not meandered. Id. The same rule was applied to the Yellow river, which was not meandered. Sellers v. Union Lumbering Co. 39 Wis. . The same rule was applied to Levis creek, an unmean-dered stream. Olson v. Merrill, 42 Wis. 203. In that case it was held, in addition, that “ it is not essential to the public easement that this capacity he continuous throughout the year, but it is sufficient that the stream have periods of navigable capacity ordinarily recurring from year to year, and continuing long enough to make it useful as a highway.” In that case authorities were cited to the effect that persons floating logs upon the stream might, when necessary for that purpose, go upon the banks, of the stream without being guilty of trespass. Treat v. Lord, 42 Me. 552; Knox v. Chaloner, 42 Me. 150; Veazie v. Dwinel, 50 Me. 419. In respect to that question, Chief Justice Eyau said: “We are not, however, inclined fully to follow that class of cases. . . We take it that a stream which is of sufficient capacity to float logs is of sufficient capacity to float some kind of boat or skiff, in which the owner may follow his logs. And if there be some places where, in consequence of bars or other obstructions, neither logs nor boat will pass without human help, the boat may be aided down the stream as well as the logs, so that the logs may be floated through the stream without trespass on the banks. This might probably be inconvenient, and even sometimes dangerous. Eut a stream is none the less navigable because persons using it are induced by inconvenience to prefer unlawful to lawful means in aid of the use.” 42 Wis. 213. The right to drive logs or lumber down a public navigable stream would seem to include the right to do the things essential to facilitate the drive, so long as the drivers keep within the limits of the stream. The same rule as to what constitutes a public navigable river has been applied to the Little Wolf river and the Little Suamico river, neither of which is meandered. Weatherby v. Meiklejohn, 56 Wis. 73; A. C. Conn Co. v. Little Suamico L. M. Co. 74 Wis. 652. Upon the undisputed evidence and the adjudications mentioned, we must hold that the Willow river is a public navigable stream, fitted for useful commerce and transportation of persons and property thereon. Being such, it necessarily follows, from the principles of law stated, that, notwithstanding the plaintiff has title to the bed of the river, nevertheless it holds the same in trust for the use of the public.

The question recurs whether the public right of fishery is included in, or an incident of, such public right of navigation. In other words, Has the plaintiff, as riparian owner, the exclusive right to take fish from the river ? The plaintiff certainly has no property in the particles of water flowing in the stream, any more than it has in the air that floats over its land. Its rights in that respect are confined to their use and to preserving their purity while passing. Lawson v. Mowry, 52 Wis. 234, 235. So, the fish in the stream were not the property of the plaintiff at common law, any more than the birds that flew over its land. State v. Roberts, 59 N. H. 256; Angell, Watercourses (7th ed.), § 65a, and cases there cited; State v. Welch, 66 N. H. 178. As indicated, the public right of fishery in tidal rivers was maintained, at common law, in England, before the use of steam,— when vessels could only be carried up the river by the flow of the sea, and down the river by the ebb of the sea,— and consequently when the ebb and flow of the tide practically measured the navigability of the stream. Eor the same reason, the public should have the right to fish in all the public navigable waters of the state, including all public navigable rivers and streams of the state. The supreme court of the United States, in a. recent case, partially adopting the language of the New Hampshire case cited, has declared that, “ at common law, the right of fishing in navigable waters was common to all. The taking and selling of certain kinds of fish and game at certain seasons of the year tended to the destruction of the privilege or right by the destruction consequent upon the unrestrained exercise of the right. This is regarded as injurious to the community, and therefore it is within the authority of the legislature to impose restriction and limitation upon the time and manner of taking fish and game considered valuable as articles of food or merchandise. Eor this purpose fish and game laws are enacted. The power to enact such laws has long been exercised, and so beneficially for the public that it ought not now to be called into question.” Lawton v. Steele, 152 U. S. 138, 139. In this state the legislature has expressly declared that “ all fish in the public waters of the state of Wisconsin are hereby declared tó be the property of the state and may be taken for the use of the individual and become his property at any time and in any manner not prohibited by the laws of this state.” Laws of 1893, ch. 301, sec. 20. Public navigable streams are certainly “ public waters,” within the meaning of that act. Since the defendant kept within the banks of the river,— within the limits of the public highway,— his fishing was nothing more than the exercise of a right common to the public. We must hold that the Willow river was 'a public navigable stream, and the defendant was not guilty of trespass by going upon it, as he did, catching the fish in question.

Bij the Oov/ri.— The judgment of the circuit court is affirmed.

Pinney, J., dissents.