Walker v. Shepardson

By the Court, Whitok, C. J. Since this case was before this court on a former occasion (see 2 Wis. Bey. 384) the bill of complaint has been amended, but the amendment does not appear to make a new statement of the allegations contained in the bill, necessary. The answer of the defendant admits the building of the dock or wharf by the complainant, at the place mentioned in the bill,- and that the complainant caused-the bed or channel of the river in front of the lots to be dredged out, but denies, that by this means the said lots were made accessible to vessels of the largest class navigating the river. The answer admits the fact of the establishment of the dock line by the common council of the city of Milwaukee, at the place mentioned in the bill, but states many facts for the purpose of showing that the said line was not legally established, and denies that the common council had the power to establish the line at the place mentioned in the bill, without the consent of the defendant, for the reason that it is one hundred feet back from' the navigable bed or channel of the river, thus preventing the defendant from occupying his land .between that line and the river. This land, the defendant contends, is his private property, and could not be taken from him by the corporate authority of — 508 — tbe city of Milwaukee, under our constitution, even for a public use, unless the necessity for the taking was first established by the verdict of a j ury. The answer admits that the defendant drove piles in front of his own lots, but denies that any were driven in front of those belonging to the complainant. The answer contains many other matters, but we do not deem it essential to notice them. At the hearing a great deal of testimony was used, which, as it depended to a great extent upon the opinions of the witnesses in regard to the effect that the’ wharf or dock which the defendant was constructing, would have upon the flow of the waters of the river, and the deposits of earth, was very conflicting. It appears by a map which was in evidence, that the lots belonging to the complainant are situated on the Milwaukee Eiver, a short distance below the place where the Menomonee Eiver unites with that stream, and that the lots of the defendant are upon the Menomonee and Milwaukee Eivers, extending a considerable distance along the former stream, to a point opposite the place where it joins the latter river, and from that point a short distance down that stream. The piles driven by the defendant are in both streams, extending from a point opposite the place of confluence, up the Menomonee Eiver and down the Milwaukee Eiver, but do not extend beyond his lots. It further appears, that, owing to the formation of the bank of the river at the place v^here the complainant’s lots are situated, some of them front the stream at the place of confluence, although situated at some distance below it, and others front the stream as it flows past them. It further appears, that the dock or wharf of the complainant has two fronts, corresponding to the position of the lots. This court has decided that riparian owners who are bounded On a stream above thembb and flow of the tide, own the land to the centre or thread of the stream, and that, where the^stream is navigable, the laud covered by it is subjeet to the right of the public to use the stream as a-public highway for the passage of vessels employed in its navigation; but that for all other purposes the right of the riparian owner to the use of the land covered by the water is perfect. Jones vs. Pettibone et al., 2 Wis. Rep. 308. This principle is too well settled by the authorities, to be disputed. It follows that both the complainant and defendant as — 509 — such owners, have the right to use their land which is covered by the water of the river, in any way compatible with the use of the ■ stream for the purposes of navigation ; but this they cannot interrupt. They may therefore construct docks or landing places for goods or passengers, taking care that vessels employed in navigating the stream are not impeded in their passage, nor prevented from the use of all parts of the stream which are navigable. It is apparent that both the complainant and the defendant have equal rights; that is, equal in proportion to the quantity of land which they severally own along the margin or bank of the river, and that neither of them can so use his land as to impair the right of the other. If the complainant chooses to excavate a basin on his own land, within which vessels can lie and discharge and receive their cargoes, we think he has an undoubted right to do so, provided the navigation of the river is not thereby impaired ; but he cannot by adopting this mode of improving his property, impair the right of other riparian owners to the use of their property, or impose additional duties or burdens upon them. By applying the principle here stated to the facts of this case which are established beyond dispute, we think it certain that the rights of the complainant as a riparian owner will not be impaired by the improvements which the defendant has commenced. It is stated in the bill, that the defendant was engaged in driving piles and putting other obstructions in the river in front of the complainant’s lots and dock, whereby the channel of the river was greatly-straitened and obstructed. When the case was before us on a former occasion, these facts were admitted by the demurrer to the bill, which the defendant had put in. We were then of opinion, that the facts stated..in the bill showed that the rights of the complainant as a riparian owner, would be most injuriously affected by the obstructions which the defendant was placing in the stream, and if the testimony showed such a state of facts our opinion would be unchanged. But the testimony shows, that the piles, &e., which the defendant is placing in the river, are not in front of the complainant’s lots in any just sense of that term, but that they are in front of the defendant’s own lots. It is. true, that the basin which the complainant has excavated, has two fronts, one of which is towards — 510 — the river as it flows by tbe lots, and the other faces the descending stream. But the obstructions which the defendant placed in the river can be said to be in front of the complainant’s dock, only because they are above it. This does not sustain the allegations contained in the bill. It is to be borne in mind that both the complainant and the defendant have equal rights in respect to their land upon the river, and that neither can impair the rights of the other. The fact being established that the piles and other materials which the defendant has placed in the river, are not in front of the complainant’s dock in any just sense of that term, and do not, by their mere positions, cause any injury to the complainant, it remains to be seen whether the testimony establishes the fact that any injury will result to him by the effect which the piles, &c., will have upon the flow of the water and the deposits of earth or otherwise. In considering the testimony with reference to this fact, we do not intend to admit that a riparian owner can, by adopting a peculiar mode of constructing his dock, compel other riparian owners to adopt the same mode, or prevent them from adopting the ordinary mode of construction. The complainant, it appears, instead of constructing his dock along the margin of the river on the line where the water becomes of sufficient depth to permit vessels to navigate it, has built his dock in a place where excavation of the earth was necessary in order to permit vessels to approach it; in fact, constructing a basin with two fronts, one of which is towards the river as it flows by the lots, and the other towards the descending stream. We do not intend to decide whether, in such a case, if other riparian proprietors should construct docks on the line where the water becomes of sufficient-depth to permit the approach of vessels, and the docks thus constructed should cause a deposit of earth in front of the dock of the- complainant in such a manner as to prevent vessels from approaching it, the latter could justly complain. Upon this subject we shall give no opinion, because we do not think the testimony shows that such will be the effect of the dock which the defendant is constructing. The testimony upon this subject, as we have before stated, is very conflicting, and by no means sufficient to warrant the interference of a court of chancery to prevent the defendant from proceeding — 511 — with tbe construction of this dock. The principle which governs courts of equity in regard to cases of this nature, was thus stated in the opinion of the court when this case was before us at a former term : “In cases of this nature, where the acts which create the public nuisance cause also private and special injury to the plaintiff, an action at law will lie; and where the complainant in a bill in equity shows that acts are about to be committed which will in. evitably produce the same result, the court will interfere by injunction to prevent the threatened injury, if it is of such a nature as to justify the issuing of the-injunction. See 2 Wis. Rep. 384. This we suppose to -be a correct statement of the law applicable to cases of this description, and the testimony by no means makes out such a case on the part of the complainant. The conclusion at which we have arrived in regard to the effect of the testimony, is decisive of the case, because, however illegal the conduct of the defendant may be, the complainant cannot obtain relief from a court of equity without he shows that he shall suffer special injury unless such relief is granted. But another matter was argued by the counsel for the parties, and we have concluded to express our opinion in regard to it. And that is, the effect of the establishment of the dock line (as it is called) by the common council of the city of Milwaukee. The complainant in his bill alleges that such a line was established by the common council, that his dock is built on the line thus established, but that the dock which the defendant is constructing, extends into the channel of the river more than fifty feet beyond the said line. The authority to establish the “'dock line ” is by the complainant supposed to be conferred upon the common council by the legislature. Assuming that the complainant is correct in the construction which he has given to the act of the legislature, which he contends confers the same, it may be well to consider the authority of the legislature in relation to the subject. By our constitution it is provided, that the property of no person shall be taken for public use without just compensation thereforo Const. Wis., Art. 1, 5, 13. We have before stated, that a riparian proprietor bounded by a stream above the ebb and flow of the tide, but navigable in part, owns the land to the centre or thread of the stream, and that the public have the right to use — 512 — tbe stream for the purposes of navigation, but that in all other respects his right to the soil is perfect. It seems from this statement of the law applicable to cases of this nature, that the legislature has no authority under our constitution to take land thus situated for public use without making “just compensation therefor.” If land bounded by a stream is the property of the riparian owner, it can no more be taken and appropriated by the public to its own use without compensation than any other property. Could the legislature grant authority to the common council of Milwaukee to establish a “ dock line ” so as to prevent a riparian owner from constructing a dock on his own land at a place where it would not interfere with the navigation of the river, without making compensation for the property which might thus be taken. Suppose the “ line ” should be established at a distance from the navigable part of the river, and the land between the “ line ” and the navigable part of the river should be rendered worthless by the establishment of the “ line ” at the place fixed by the common council, would not the property of the riparian owner in such a case be taken in the just, sense of the term? We are inclined to think that it would, and that in such cases it would be necessary to make compensation to the owner for the property which would thus be rendered valueless by this act of the common council. In the opinion which we have given, we do not of course intend to deny the authority of the legislature to grant power to the common council to prevent the erection of nuisances, or to prohibit the carrying on of noxious or offensive trades within the limits of the city, or in particular places within the city, as this depends entirely upon another principle. For the reasons above given, the decree in this case must be reversed.