Abbott v. Cremer

Siebecker, J. The ice field in controversy was located on land covered by a mill pond owned by Mrs. Vogel and her children as heirs of the deceased husband and father. The testimony tends to show that William F. Vogel was lessee of the mill and the water power appurtenant thereto, but [379] nothing appears to show that he had any other interest in the mill property or in the land upon which the mill pond is situated. Plaintiff asserts no other right or interest to this ice bed other than the right secured from the lessee of the mill property. It is the settled law in this state that the title to the beds of streams is vested in the riparian owners. Olson v. Merrill, 42 Wis. 203; Reysen v. Roate, 92 Wis. 543, 66 N. W. 599. It is also established that the title to ice forming on ponds is in the person owning the soil. Reysen v. Roate, supra. Nothing appears in the case to show that the lessee, Vogel, had any interest in the ice bed except his rights as lessee of the mill and water power and to the flow of water. This gave him no right or title to the soil under the pond, nor any interest or right to the ice formed of the water in the pond. Any right or privilege obtained from him by the plaintiff to cut the ice in question conveyed no right to nor interest therein superior to the right of any other person trespassing thereon. Under the circumstances the conduct of plaintiff in attempting to appropriate the ice by cleaning and examining it preparatory to harvesting vested no right or interest in him. Can it be held that he had lawful possession as against the defendant ? As indicated, he was not in possession as owner, nor was he, under the privilege given him by the lessee, in possession as licensee. True, he had cleaned or scraped off the ice, and examined it for the purposes indicated; but, since these acts were done by him without any right or authority, they are not sufficient to constitute a legal appropriation of the ice. Under the facts of the case the ice was in the actual possession of the owners of the soil at the time defendants took possession. Reysen v. Roate, supra; Balcom v. McQuesten, 65 N. H. 81, 17 Atl. 638; Bigelow v. Shaw, 65 Mich. 342, 32 N. W. 800; Becker v. Hall, 116 Iowa, 589, 88 N. W. 324. Construing the evidence in the case in the' most favorable light to plaintiff, no grounds are established upon which he can recover against the defendants. [380] Upon appeal the circuit judge held that the issues involved title to land, and, since defendants failed to give the bond required by sec. 3620, Stats. 1898, it must be presumed that plaintiff had title to and possession of the ice. For the reasons above stated, no such issues were properly presented by the record. If the plaintiff had any right to the ice, it could only arise upon the ground that he had appropriated and reduced it to his possession, making it personal property. His acts to this end do not furnish a ground for an appropriation and possession of the ice, hence no title to real estate was raised by the issues. It therefore is a proper case to be tried upon the record on appeal, and judgment should be awarded according to the weight of the evidence and the justice of the cause. This error in procedure by the circuit court necessitates a reversal of the judgment. By the Court. — Judgment reversed, and cause remanded, with directions to reverse the judgment of the justice and render judgment dismissing plaintiff’s complaint.