McCarthy v. Murphy

Siebecebe, J. Many of the errors assigned pertain to questions of fact. Upon an examination of the evidence, we find there was conflicting evidence on material issues, and that the conclusions of the court were supported by evidence. It would serve no useful purpose to point out such evidence in the record; the conclusions of fact must stand. The claim is made that respondents had no rights or privileges, extendingbeyond the high-water mark on the land occupied by them, different from and in addition to those of the public. This contention is without merit in the law of this state. It has been adjudged by this court as to the shore owner: “As proprietor of the adjoining land, and as connected with it, he has the right of exclusive access to and from the waters of the lake at that particular* place; he has the right to build piers and wharves in front of his land out to navigable waters, in aid of navigation, not interfering with the public use. These are private rights, incident to the ownership of the shore, which he possesses, distinct from the rest of the public. .All the facilities which the location of his land with reference to the lake affords he has the right to enjoy for purposes of gain or pleasure; and they oftentimes give property thus situated its chief value. It is evident from the nature of the ease that these rights of user and of exclusion are connected with the land itself, 'grow out of its location, and cannot be materially abridged or destroyed without inflicting an injury upon the owner, which the law should redress. It seems unnecessary to add the remark that these riparian rights are not common to the citizens at large, but exist as incidents to the right of the soil itself, adjacent to the water.- ... In such ownership they have their origin. They may [162] and do exist, though, the fee in the bed of the river or lake be in the state.” Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Priewe v. Wis. State L. & I. Co. 93 Wis. 534, 67 N. W. 918, and cases cited. When such owner exercises'these rights, he cannot invade the riparian rights of other bank owners. As to them, he has the same rights as the public. An intrusion of another’s riparian rights is a legal wrong, which the law will redress. Nor can a stranger, by such intrusion on the bed of the water, acquire- any vested rights or interests as against the riparian oivners. Any structure erected by him, under such circumstances, is a private nuisance. The proprietor of such rights has the legal authority to protect them in a.lawful and peaceable manner, to the extent of removing a structure, such as a pier, erected on the bank and bed of the 'waters in front of his lands. Diedrich v. N. W. U. R. Co. 42 Wis. 248; Cohn v. Wausau B. Co. 47 Wis. 322, 2 N. W. 546; Yates v. Milwaukee, 10 Wall. 497. Appellant had acquired no right to maintain this pier at the point of its location by grant or license. It is assigned that the facts fail to support the conclusions of the trial court upon this issue. The evidence is conflicting whether -Kennedy,' the OAvner of the bank of the lake, at any time gave appellant a license to build the pier at the place located or not. The trial court found the fact against this contention, upon the disputed evidence, which sets the question at rest. When appellant erected and sought to maintain this pier, he did an injury to respondents, in the nature of a private nuisance, Avhich they had a right to remove, to prevent injury from its continuance. Cooley, Torts (2d ed.) p. 48; Larson v. Furlong, 50 Wis. 681, 8 N. W. 1. It is further contended that respondents, after removing the pier, appropriated the material to their OAvn use. Nothing is disclosed to justify this charge. TTpon the evidence adduced, the court found that respondents carefully removed [163] the pier, placed the material upon the shore of the lake, and that appellant took possession of such material. There is evidence to sustain this conclusion. We find no error in the record. By the Court. — The judgment of the circuit court is affirmed.