Walls v. Cunningham

Maeshalx., T. The first proposition presented, though it is not distinctly stated, is that the finding that the lands of the parties were adjoining lands within the statutes on the subject of division fences, is wrong. Authority is cited to show that one deemed to be the owner of the bed of a -navigable stream to the center line thereof on one side as incident to ownership of the shore on that side, may convey the bank 349 so as to sever title thereto from the.bed, putting the ownership of the latter in one and of the former in another. Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606. The principle contended for is sound, but the evidence here supports the trial court’s view that no such severance was accomplished. The owner of the hank of a stream presumably owns the bed thereof to the thread of such stream subject to public rights. Some clear evidence to the contrary in any case is necessary to rebut that presumption. Mere evidence of the conveyance of all of a certain tract of land on the specified side or bank of a stream, or of land giving the meander line of a stream as a boundary, is not sufficient, as is clearly indicated in Norcross v. Griffiths, supra. There the evidence was much stronger in favor of the claim that the water’s edge, and not the center of the stream, was the boundary line than in this case, and yet the latter was held to be the true boundary. The land was described by metes and bounds. The river was not mentioned. The proof showed that the boundary on the side towards the river included the whole of the bank. The claim was made that, since it was competent to convey the bank separate from the bed qf the stream, the stream was not mentioned and no specific boundary was given other than one coinciding with the ordinary water’s edge, it should be held that the parties did not intend the description to include land reaching further than such line. The court decided that the circumstances were not sufficient to rebut the presumption heretofore mentioned. It being conceded, or established by evidence, that the lands in question were occupied and used by the respective owners and were adjoining lands within the meaning of the statutes as to division fences there was no escape from the conclusion arrived at, that compliance with such statutes was a condition precedent to damages for a trespass, such as the defendant sought to redress by distraining the cattle. Such is the obvious effect of the statutes as ruled in Roach v. Law 350 rence, 56 Wis. 478, 14 N. W. 595. Sec. .1391 makes the maintenance of division fences in sncb a case obligatory and provides tbat a landowner wbo does not comply therewith, shall not be entitled to damages for any trespass, which such maintenance is designed to prevent. Sec. 1395 applies to a case where the division line is the thread of a river and it is impracticable to maintain a fence thereon. It provides that when the boundary line is a river, which of itself is not a sufficient fence,v and it is impracticable, without unreasonable expense, for a fence to be built on the division line, and either owner or occupant shall refuse to join in making a partition fence on either side thereof, or they disagree respecting the same, either “may apply to two or more fence viewers of tire town, who, after giving notice as provided in s.ec. 1393, shall proceed to view such river; . . . and if they shall determine that .the same is not a sufficient fence and that it is impracticable, without unreasonable expense, to build a fence on the- true boundary lino they shall, in writing under their hands, determine how or on which side thereof the fence shall be built or whether partly on one side and partly on the other, and assign to each owner or occupant his share thereof and the time within which the resj)ective parties shall build the same, and file such determination in the office of the town clerk, who shall record the same. . .- . If said fence viewers shall determine that it is impracticable, either from the formation of the banks of such river, ... or from any other cause, to maintain any fence along or near said boundary line they shall give written notice to the parties of such determination.” By the Court. — The judgment is affirmed.