Mariner v. Schulte

By the Court, Cole, J. The instructions of the circuit court, given upon the trial of this cause, appear to us to have been quite as favorable to the appellant as the facts and cir — 705 — cumstances of tbe case would, warrant. Tbe charge with regard to tbe rights of riparian owners upon tide-waters, ponds and inland streams, is in strict hármony with tbe great current of authority upon that branch of law. This court has had occasion to consider somewhat the nature and extent of those rights, and has affirmed the general doctrine that purchasers of lands lying upon the banks of a stream above the ebb and flow of the tide, when bounded by the stream, are presumed to run to the center of such stream. Jones vs. Pettibone, 2 Wis., 308; Walker vs. Shepardson, 4 id., 486. This is unquestionably the ordinary presumption of law as to the right of the riparian owner, unless there is something in the language of the grant which indicates a clear intention to restrict that right, and to reserve the bed of the stream adjoining the land. We can discover nothing in this case which shows an intention to limit the lot owners along the bayou to the margin of that bayou. It is insisted, because those lots were platted, that a deed bf a lot within a given block only conveys the ground included within the lines of such lot upon the plat, and nothing more or beyond those limits. Or in other words, if a person conveys a lot in a village or city, which has been laid out and platted, and the lot is bounded by a street or river, that then the natural and legal presumption arising from the transaction is, that the grantor intended to restrict the deed to the precise land embraced within the lines describing the!lot upon the plat, and not to grant anything beyond, reserving to himself the fee in such highway or river. But this position is understood to be contrary to many authorities, and certainly is in direct conflict with the rule as laid down by this court in the case of Kimball vs. The City of Kenosha, 4 Wis., 321. In this latter case it was distinctly decided, that the grantee of a lot bounded by a street or streets, in a village laid out, platted and recorded, in conformity to the statute in force at the time the plat in the present case was made, took to the center of the street on which the lot abuts, subject ip the public easement. The counsel for the appellant suggests that this case was not well considered, and that it does not contain the correct rule of law upon this subject. We áre aware that the cases are not — 706 — un^orm uPorL point, and that the case of Kimball vs. City of Kenosha stands opposed to some, while it is sustained in principle by others, found in the books, but we are disposed to adhere to it, as containing, upon the whole, the most sound and salutary rule upon this question. So assuming the common law rule of construction to be well settled —as I think we must — that a grant of land in this state, bounded by a highway or river, carries by implication, the fee to the center of the highway or river, subject, of course, to the right of passage in the public, then can any satisfactory reason be assigned why the same rule should not apply to the conveyance of a city or village lot ? I fail to see any ground for any distinction. The counsel insisted that a distinction should be made between such lots and larger tracts of land, but I confess to my mind the reason did not appear very obvious or essential. In Child et al. vs. Starr, 4 Hill, 369, a like distinction was taken by the eminent counsel who argued for the plaintiff in error; still the distinction did not appear to have made any strong impression upon the members of the court of errors, or at all events, was not sanctioned by any of them who gave opinions on that occasion. Senator Baker only alludes to it, apparently for the purpose of expressing his dissent from it. And although in that case it was held that the riparian proprietor did not take to the center of the Grenesee river, yet this was on the ground that the language used in the deed restricted the grant to the shore of the river. But I do not understand that there is anything in Child vs. Starr which shows that the court intended to cast a doubt upon the correctness of the common law rule as to the construction of conveyances of lands bounded by or upon streams, that the legal presumption was, that the grantor intended to convey to the middle of such stream. In the present case, the court told the jury that if the bayou was a pond, the owners on the shore only took down to low water mark, but if it was a stream navigable in point of fact, the riparian owner took to the middle of the stream, subject to the easement of the public in it as a highway by water. The jury undoubtedly believed that the bayou was a stream, and an arm merely of the Milwaukee — 707 — river, and it is difficult to see how they could have arrived at any other conclusion upon the evidence. The court then pointed out one or two circumstances peculiar to the case, which restricted the grants and prevented the owners of lots on the east side of the bayou from taking to the center of the Milwaukee river. The fact that the original proprietors of the town platted the island into blocks, lots and streets, was considered conclusive evidence that they did not intend owners of lots on the east side of the bayou should take to the center of the main river. The circuit judge then proceeds in the general charge : “ Then this is complicated with another highway, to-wit, Eiver street. I think the plat made and recorded by the proprietors, and their conveyances of lots along the east side of the bayou, afforded a pledge to the purchasers that they would -have the rights of riparian owners; and unless there is an express reservation, they take not only to the water, but also the land under the water. Eiver street lies along the west bank of the bayou, either partly or altogether under the water thereof. I charge you that if you find that the bayou was a navigable stream until filled; that the defendant was the owner of the land on the east bank thereof, by purchase from Juneau and Martin under their plat; that Eiver street and the bayou lay upon each other or overlapped, leaving no space between them; and if you find from the plat, deeds and other testimony, that the proprietors, Juneau and Martin, intended to devote to the public the use of the entire space between block 50 and block 51 as a highway, partly by land and partly by water, then that' whole space was a highway, and the defendant holds to the center of that entire space at least.” This portion of the charge we think quite as favorable to the appellant as the facts of the case would justify. Indeed we have come to the conclusion that the true boundary between the lot owners on the east and west side of the bayou, is the east line of Eiver street. We have arrived at this conclusion in view of one or two considerations to which we will briefly allude. At the time the plat was made and the blocks and lots on each side of the bayou, with Eiver street, were delineated on — 708 — the map, tbe evident expectation of tbe proprietors of tbe town seems to bave been, tbat tbe bayou on tbe west side would be partly filled up so as to form River street, while tbe remainder of tbe bayou would remain open for tbe purpose of navigation. Tbe bayou, it appears, at tbis time was navigable, and probably tbe proprietors supposed it might be filled in sufficiently to make River street, without injuriously affecting its navigability. Therefore, when River street was made, lot owners in block 50 would bave ready access to tbe bayou by passing across tbat street. Tbis, it is clear, would be very desirable, and would give additional advantages to those lots for business purposes; while tbe lot owners of lot 51 would bave all tbe facilities of a business point abutting upon navigable waters, and also tbe advantage of a street on tbe west side of tbe bayou. It is not to be supposed tbat considerations of tbis kind would be lost sight of by sagacious business men. Furthermore, in tbe event tbe bayou should be entirely filled up, then tbe owners of lots on tbe east side would still bave access to tbe same street. And should tbe street, for any cause, be vacated, or never be made, tbe owners of lots on tbe island would not be cut off from the bayou. It seems to us tbat these considerations must bave bad weight with tbe proprietors of tbe town, when they made tbis plat and designated tbe blocks and lots on each side of tbe bayou and River street in the manner they did; and that they intended that owners of lots upon the east side of tbe bayou should take tbe fee to the street on tbe west, while those on the island should bave access to the bayou, and take tbe fee up to the east line of tbe street. In view of tbe nature and situation of tbe property, and of all tbe circumstances of tbe case, tbis is tbe most satisfactory result at which we have been able to arrive. We can entertain no doubt tbat the proprietors of tbe town intended to convey away all their interest in tbe space covered by the bayou and River street, to tbe adjoining lot owners, and to do so in such a manner as most effectually and fully to protect and secure the rights of all concerned. And in view of tbe fact tbat two highways were laid out side by side, the one by land and the other by wa — 709 — ter, upon wbieb tbe lots on tbe main land and those on the island abutted, they might reasonably have intended the boundary between those lots should be the east line of River street, in order to secure the* rights of all parties in a public highway in the event that one or the other in time should be discontinued. * It is quite true that the question as to the true boundary between the different lot owners on the island and main land, is not strictly raised by the instructions of the circuit court, and therefore it is not necesáary, perhaps, to decide it in this cause ; but still, since it was so fully discussed by the counsel for the respondent, and; we were given to understand that several cases were still pending where it might be necessary to consider it, we have felt at liberty thus to express an opinion upon it. The counsel for the respondent forcibly pressed upon our attention several considerations which he thought required us to hold that the boundary between the lot owners on the island and those on the main land, was the center of River street. The main reason was, that the law of real estate loves certainty in boundary lines, and that the center of River street was the most certain call for lots upon each side of it. But we cannot perceive that a mathematical line through the center of the street would be any more certain than the east line thereof, the middle of the street being given. In analogy to the common law rule of construction, the center would be the natural boundary. But this case is a little peculiar in its circumstances, and if we should hold that the center of the street was the true boundary, it is very clear that lot owners on the west side thereof would have been cut off from the bayou, in the possible contingency that River street had been vacated, and the bayou kept open for the purposes of navigation. It seems the bayou has been entirely filled up, its waters having become injurious to the health of the citizens ; but probably the proprietors of the town as little expected this result, when they laid it out and gave deeds in the first instance, as they contemplated the discontinuance of River street itself Indeed, from the condition of the bayou in 1836, and some years thereafter, the — 710 — latter event would, appear more probable than the former, to . a person speculating as to the future. Note. — The insertion of the foregoing case of Mw'i/ntr m BelmlU was delayed in consequence of the plat used on the trial here, having been returned with the record to the court below. — Rep. These observations are sufficient, we think, to dispose of all questions arising upon the charge of the court, and instructions given the jury, as well as the refusal to give the special instructions asked for on the part of the appellant, and we therefore shall not notice these instructions with any more particularity. We think the law of the case is laid down by the court more favorably to the appellant than in strict right he could insist upon, and hence he has no reason to complain. And we can discover no material error in the various rulings of the court as to the admission or exclusion of testimony on the trial. The judgment of the circuit court is affirmed.