Sliter v. Carpenter

SiKBECKER, J. The facts of this case are to' the effect, that an island formed on the Wisconsin river bed, the main part of which is in front of the above-described land, designated as lots 1, 2, and 3 — being fractional quarter sections— and that plaintiff and his assigns are riparian proprietors of the bed of the river in front of these lots of land. It is also conceded that the greater part of the island lies between the south bank of the river and the thread of the stream (i. e.,. midway between the two banks), and that this has been the situation since 1853. There is no contention but that defendant did some cutting of timber on the island to the south of the line midway between the north and south river banks; thus being within the river bed in front of, and bordering on,- the land owned by plaintiff and his assignors. It was held in Chandos v. Mack, 77 Wis. 573, 46 N. W. 803, that a grant of lands on the bank of a navigable stream, made without limitation or reservation as to the adjacent islands, vests in the purchaser the title to any unsurveyed island lying between the bank and the thread of the stream. This ownership is predicated upon the ground that the riparian proprietors in this state are, by concession of the state, the owners of tlie river bed adjoining their land to the thread of’ the stream, and that this ownership extends to any island [581] or dry land which may be formed thereon. This rule is affirmed by this court in Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273; and Franzini v. Layland, 120 Wis. 72, 97 N. W. 499. Upon the trial the court dismissed the complaint, holding that the plaintiff and his assigns had shown no title to the island. Since there is no dispute but that plaintiff and his assignors were the owners of the river bank included within lots 1, 2, and 3 at the time of the alleged trespasses, under the established principle of the foregoing cases there can be no question as to their ownership of that part of the island situated on the river bed between this bank and the thread of the stream. There is nothing in the evidence to indicate but that this is an unsurveyed island formed upon that part of the bed of the river which is owned by the riparian proprietors. Under such circumstances, the original grant by the government carried with it the right of ownership to the island, in all respects as it did to the bed of the stream. The interest thus conveyed attaches and is appurtenant to the bank, and passes by conveyance of the title to the bank, unless it be separated therefrom by deed of conveyance. No such separation as to the lands in question is shown to have taken place. The result is that the plaintiff and his assignors were the owners of the island to the thread of-the stream, and of the timber which the defendant cut and removed therefrom. The court and counsel erroneously assumed that the practice which would be applicable to the trial of this case before a jury regulated the trial before the court after a jury had been waived. Under this view, defendant’s counsel made a motion of nonsuit at the conclusion of plaintiff’s testimony, which was entertained and granted; and, on such ruling, judgment dismissing the complaint was awarded. This practice has met with disapproval in repeated decisions of this court. Under sec. 2863, Stats. 1898, upon the tidal of a ques [582] tion of fact by the court its decision shall be made in writing, and the judge is required to state separately (1) the facts, found by him; and (2) his conclusions of law thereon. Though noncompliance with the statute in this respect may not be reversible error, the statutory requirement is plain, and the decision in such cases should state the facts and give the conclusions of law. Dietz v. Neenah, 91 Wis. 422, 64 N. W. 299, 65 N. W. 500; Yahr v. Joint School Dist. 99 Wis. 281, 74 N. W. 779; Farmer v. St. Croix P. Co. 117 Wis. 76, 93 N. W. 830. It is obvious from the record before us that the question of damages was not tried and determined, resulting undoubtedly from such misapplication of the rules of practice. Since the judgment must be reversed, and since the damages have not been determined, the trial court should proceed, upon the return of the case, to ascertain the damages. The court may, in its discretion, allow further proof upon this issue. Attention is called to a clerical mistake in the record, in that the judgment recites that Robebt G-. SiebeoKER acted as presiding judge upon the trial of the case. The record shows that at the time of the trial E. Ray SteveNS was the judge of the circuit court for Dane county, and presided at the trial. By :the Gowrt. — Judgment reversed, and the cause is remanded with directions to award judgment in plaintiff’s favor for such an amount of damages as the court may determine.