Olson v. Merrill

RyAN, O. J. I. Whether the stream in this case be in fact navigable or not, the title to the bed of the stream is in the appellant, as owner of both banks. This has been the uniform rule of decision in this state from the beginning. Jones v. Pettibone, 2 Wis., 308; Walker v. Shepardson, 4 id., 486; Mariner v. Schulte, 13 id., 692; Arnold v. Elmore, 16 id., 509; Yates v. Judd, 18 id., 118; and other cases. It is true that, in delivering the judgment of the court in Wis. r. I. co. v. Lyons, 30 Wis., 61, Dixon, C. J., suggests [211] that the rule establisbed in Jones v. Pettibone, as applied to navigable rivers, was authoritatively overruled by Railroad Co. v. Schurmeir, 7 Wall., 272; and perhaps he intimates the same thing in Wright v. Day, 33 Wis., 260. It is also true that the view is expressed by the learned judge who delivered the opinion in Railroad Co. v. Schurmeir, and again by the learned judge who delivered the opinion in Yates v. Milwaukee, 10 Wall., 497, that riparian owners upon navigable streams take no title in the bed of the stream. But it is a little remarkable that the riparian owner’s title in the bed of the stream was not involved in the judgment of the court either in Railroad Co. v. Schurmeir, or in Yates v. Milwaukee, or in Wis. R. I. Co. v. Lyons, or in Wright v. Day. And, with great respect, we cannot but think that the chief justice’s doubts arose from perhaps too strained and implicit a deference of that very able jurist to federal authority in state matters. None of the present members of this court share in those doubts. And, with all the deference to the authority of the federal supreme court which all state courts are bouud to entertain, we should be inclined to adhere to the settled rule in this state, even if that court had left us in doubt on the subject. But in the late case of Barney v. Keokuk, 4 Otto, 324, the true rule of jurisdiction on the subject is undoubtedly established by that court. The case arose in Iowa, and involved the title of the riparian owner to the bed of a navigable stream. The court quotes and follows the decisions of the supreme court of that state, against the title of the riparian owner in the bed of the stream. And, speaking of the confusion of navigable with tide water, in this country, it says: “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. Whether, as a rule of property, it would now be safe to change these doctrines where they have been applied, as before remarked, it is [212] 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.” This view, so far as may have been necessary, leaves this conrt free to adhere to a doctrine almost as old as the state, and which it would now be very mischievous to disturb. And, as to its policy, we may be permitted to remark that we consider the wisdom of the rule of this court amply vindicated in the very able exposition of the question in S. B. Magnolia v. Marshall, 39 Miss., 109. The right of the appellant, therefore, to erect and maintain his dam, so far as this case presents it, rests solely on the question whether the stream was navigable in fact or not. II. It is not denied that the court below fairly submitted to the jury the question whether the stream was navigable in fact or not. And the only question here is,, whether there was sufficient evidence to go to the jury and to support the verdict. It is settled in this court, that streams of sufficient capacity to float logs to market are navigable. Whisler v. Wilkinson, 22 Wis., 572; Sellers v. Union L. Co., 39 id., 525. And we deem it essential to the public interest in the pine-growing regions of the state, spoken of in Whisler v. Wilkinson, to adopt the rule collected from the authorities in Angelí on Watercourses, § 537, and substantially adopted in the charge of the court below: “Nor is it essential to the public easement that the capacity of the stream, as above defined, should be continuous; or, in other words, that its ordinary state, at all seasons of the year, should be such as to make it navigable.If it is ordinarily subject to periodical fluctuations in the volume and height of its water, attributable to natural causes, and recurring as regularly as the seasons, and if its periods of high water or navigable capacity ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement.” [213] There is ample testimony in the bill of exceptions tending to show that this was the character of the stream in question; and that it had been successfully and advantageously used for years for the purpose of floating logs to market. The particular objection, however, to the stream in question is, that, at some particular points in its course, it has not sufficient capacity to float logs without manual aid from the shore; in other words, that it can he made practically navigable only by trespass on the banks. And this objection appears to be sustained by Brown v. Chadbourne, 31 Me., 9; Treat v. Lord, 42 id., 552; and other cases following them. "We are not, however, inclined fully to follow that class of cases. "We of course recognize the position that the navigable character of a stream cannot depend upon trespass on the shore; and that one floating his property down a stream has no right, without license, to use the banks of the stream to aid°him. But it appears to us to be begging the question to assume that, because it is convenient, and persons are accustomed so to use the banks, therefore the stream is not navigable without trespass upon them. 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 j 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. But a stream is none the less navigable because persons using it are induced by convenience to prefer unlawful to lawful means in aid of the use. Indeed we gather from cases which have come before us, that the same practice prevails on some of the larger streams in this state. But the navigable character of a stream does not rest on the tortious practice, but on the capacity of the stream to .be lawfully used. And we cannot hold [214] that the right to use a public highway, by land or by water, is lost even by habitual trespass upon adjoining lands. The learned counsel of the appellant cites cases clearly showing that different rules prevail in other states. But we think that we are supported in principle and by authority, in adopting a rule in this state which appears to us to be important to its great lumbering interests. III. We cannot think that the condition or lawfulness of the respondent’s dam went at all to his right to float his logs down the stream where the appellant’s dam prevented him. If the stream be navigable, the respondent had the same right to use it, whether he had a dam or mill there or elsewhere, or anywhere. And his right to float his logs is wholly independent of his right to erect or maintain his dam. We do not consider the question whether the respondent showed a particular injury to himself, not common to the public, sufficient to support the action. The appellant did not make the point, and we therefore take it to be conceded, for the purposes of this case. By the Oourt. — The judgment of the court below is affirmed.