Mariner v. Schulte

Purchasers of laud lying on the bank of a stream, aboye the ebb and flow of the tide, and bounded by the stream, are presumed to own to the center of the stream, unless there is something iu the language of the grant to restrict that right and to reserve the bed of the stream adjoining the land. The decision in Kimball us. The City of Kenosha, 4 WÍS., 321, that a grantee of a lot bounded by a street in a village laid out, platted and recorded in conformity to the statute in force in 1837, takes to the center of the street on which the lot abuts, subject to the public easement, is referred to and approved. The original proprietors of part of the present city of Milwaukee sold lots, describing them by their numbers only, which were delineated on a town plat recorded in 1837, as reaching to the east side of a bayou of the Milmmkee river. On the west side of the bayou, a street called River street was delineated on the plat as running along the edge of the bayou, and partly covered by it, so as to leave no space intervening between them; and west of that street, on tbe island between the bayou and the Milwaukee river, the ground was platted into lots, abutting on River street, and sold. Subsequently the bayou was filled up by order of the city authorities, as a nuisance to the pub-lie health. BM, that the proprietors must have intended to convey all their interest in the space covered by the bayou and River street, to the adjoining lot owners, in such manner as most effectually to secure their rights; and in view of the fact that the bayou was a navigable stream, and thus two highways were laid out side by side, on which the lots on the mainland and the island abutted, they must reasonably have intended that the boundary between those lots should be the east line of River street, in order to secure the right of all parties to a public highway, in the event that one or the other should, in time, be discontinued. Proprietors of land on the shore of a pond or lake hold down to low water mark. Note. — The insertion of the foregoing case of Mw'i/ntr m BelmlU was delayed in consequence of the plat used on the trial here, having been returned with the record to the court below. — Rep.

APPEAL from tbe Circuit Court for Milwaukee County. Ej ectment for tbe pi ece of ground in tbe city of Milwaukee, lying in front of lots 4 and 5 in block 51, and between those lots and tbe east side of Biver street, as indicated on tbe aboye plat. On the trial, the plaintiff deduced his title, through several mesne conveyances, from Wells & White, who derived their title to the premises in controversy, under a quit-claim deed from Juneau, (who was the patentee of the quarter section in which the premises are situated,) dated November 2d, and recorded November 5th, 1849. This deed declared that it was the intention of the grantor to convey all his interest' in that piece of land commonly known as the “bayou,” in the 1st ward of the city of Milwaukee. It was admitted that the defendant was in possession of all the land between a line extended at right angles with East Water street, from the north-east corner of lot 4, in block 51, to River street, and a line extended in the same manner from the south-east corner of lot 5, in the same block, to River street; and the plaintiff proved “that the west part of the land between those lines was covered by a portion of the said ‘bayou,’ in low water, before the said ‘bayou’ was filled up, and that the ‘ bayou’ had been filled up, and the shores thereof obliterated, before the commencement of this action,” and rested. The defendant deduced a title to said lots 4 and 5, in block 51, through a deed from the patentee, dated and recorded October 4th, 1836. He also gave in evidence a town plat made and recorded September 8th, 1835, by Juneau & Martin (Martin being then a co-proprietor), and a similar plat made by them and acknowledged in August, 1837, a section of which, embracing the ground in controversy and adjacent lots, streets, &c., is represented, with sufficient accuracy, by the above diagram. It was also admitted by the parties, “ that Juneau & Martin had conveyed their entire interest in block 50, according to said plats, lying on the west side of River street, directly west of block 51, and opposite thereto, across the ‘bayou,’ and beyond River street, prior to the deed made by Juneau to White & Wells.” The defendant then introduced evidence tending to show that at the time said plats were made, and the lots sold, the “ bayou” was a water-course (and not a pond), and was navigable, in point of fact, in its natural condition, in front of lots 4 and 5, in block 51; and that Eiver street, as laid down on tbe plats, lay partly in tbe water of tbe “ bayou,” or mediately adjoining it, with no space between them; and that Juneau & Martin, when they platted tbe ground, and sold tbe lots around tbe “ bayou,” intended to dedicate tbe “ bayou” to tbe public use,, by leaving it open as a highway by water; and that during tbe years 1856-7-8, tbe “bayou” was filled up, under tbe direction of tbe proper authorities of tbe city, as a nuisance to tbe public health. To prove tbe intention of tbe proprietors in respect to tbe dedication of tbe “ bayou” to public use, tbe defendant’s counsel put to a witness, who said be bad bought of Juneau, in 1848, lots in block 47, on tbe island, tbe following question: “ State any representations made to you by Juneau and Martin, at tbe time you bought tbe lots in block 47, about tbe bayou ?" Tbe question was objected to by tbe plaintiff, but tbe court overruled tbe objection, tbe plaintiff excepting, and tbe witness answered, “I bought of Juneau first; I asked him about tbe bayou; be stated it was left open as a navigable stream, and that so tbe lots bad a double water front, one on tbe river, and one on the bayou. He stated that tbe lots on Eiver street would be worth more on account of tbe two water fronts. These statements were made during tbe negotiations for their purchase. I afterwards purchased of Martin lots 1, 2, and 3, in tbe same block, and be made tbe same statements in regard to their having a double water front, and represented tbe lots as being worth more on that account.” Tbe plaintiff then introduced evidence tending to show that there was a lunar tide in Lake Michigan, of about an inch and three-eighths to two inches, occurring periodically, and at tbe same periods as tbe ocean tide; that it extended up tbe bayou above tbe ground in dispute, but that tbe fluctuations in tbe waters of tbe lake, occasioned by tbe winds, are so much greater than that caused by tbe tide, that it was difficult to detect tbe latter, without making a series of observations for that purpose. There was also evidence tending to show that tbe plat represents tbe bayou narrower than it really was; and that what is represented as Biver street was encroached on more by tbe bayou, than is indicated by tbe plat. Tbe plaintiff requested tbe court to charge tbe jury, 1. That if they found that tbe tide ebbs and flows in Lake Michigan, and that such ebb and flow extended up tbe Milwaukee Biver and tbe bayou, over tbe lots in question, or propelled back tbe waters of tbe river and bayou above tbe lots in question, then tbe plaintiff was entitled to recover tbe premises as far back as ordinary high water mark on tbe east side of tbe bayou, before any part of tbe premises were filled. 2. In case tbe jury found there is no tide in Lake Michigan or in tbe Milwaukee Biver, and tbe water in tbe bayou bad been stagnant except when moved by tbe influx of the river, or from tbe river overflowing its banks, that then tbe plaintiff was entitled to recover up to low water mark on tbe east side of tbe bayou, before any filling was done. 3. That tbe plaintiff was entitled to recover that part of tbe premises to which tbe defendant did not show title; that after tbe case made by tbe plaintiff, tbe burden was upon tbe defendant to make bis title, and that tbe plaintiff was entitled to all to which tbe defendant did not prove title. 4. That tbe occupation of tbe bayou by tbe public, either under tbe dedication by Juneau & Martin, under tbe plat, or under the right to it as technically navigable, was not adverse to tbe title of tbe owner of tbe fee, or inconsistent with tbe reversion, when tbe public use ceased. These instructions were each refused, and tbe refusal excepted to. Tbe court, at tbe request of tbe defendant, instructed tbe jury: L That if tbe jury found from tbe evidence that tbe bayou was a water course and not a pond, and was navigable in point of fact, in front of lots 4 and 5, in block 51, in its natural condition, then it was by law a public highway, and tbe owners of tbe land on tbe banks owned also tbe land under tbe water, subject only to tbe public easement or right of passage. 2. If tbe bayou was in fact a highway, as described in tbe last instruction, and if Biver street lay partly in tbe water of tbe bayou, or immediately adjoining it, with no space between them, then the whole space occupied by Biver street and tbe bayou, was an entire highway, and tbe owners of tbe lots on tbe east side of tbe bayou owned also to tbe centre of tbis entire highway, at tbe least. 8. That if. they found from tbe evidence, that Juneau and Martin, when they platted tbe ground and sold and conveyed tbe lots around tbe bayou, intended to dedicate tbe bayou to tbe public use, or to leave it open as a highway by water, and if tbe bayou and Biver street adjoin or encroach upon each other, then after they bad conveyed tbe lots on tbe east side of tbe bayou and those on tbe west side of Biver street, they bad thereby conveyed all tbe land across from East Water street to tbe main river, and bad no estate left in tbe intervening space, which they could reclaim or sell. 4. That it is a general rule that prevails all bver tbe states, that tbe owner of lands bordering on a highway, either by land or by water, owns, by legal intendment, to tbe centre of such highway. 5. That if any question should arise with them, as to whether tbe center line of tbe bayou opposite lots four and five, in block 51, was as far or farther west than tbe east line of Biver street, they should, upon that point, have reference to tbe middle of tbe bayou, as it was immediately before any filling bad been done at that point, either on tbe east or west side. To each of these instructions, except tbe first, tbe plaintiff excepted. Tbe circuit judge charged tbe jury generally as follows: “ What tbis bayou was, is tbe great question in tbe case. Tbe name ‘bayou’ is of no consequence. Whether tbe channel of water has usually been called a river or a bayou, or a brook, or otherwise, makes no difference. It is tbe nature and character of tbe thing, and not its popular name, which tbe law regards. Both these parties claim through Juneau. If Juneau conveyed tbis ground in suit to Irving and others, through whom tbe defendant derives title, in 1886, of course be bad nothing left then to quit-claim to White and Wells in 1849. It is said that tbe defendant’s lots border on navigable water. Was tbis then such a channel of water that tbe owner on tbe bank takes title to tbe center ? At common law, only tide water was technically called navigable, and tbe land below tbe flow of tbe tide was vested in tbe crown, and private proprietors owned only down ru^e has 110 application to tbe streams flowing into pur great lakes. On ponds, owners on tbe shore g0 down to low water mark. On streams, tbe owner on tbe bank goes to tbe center or thread of tbe stream. Our own supreme court have held this as to tbe rivers of Wisconsin, particularly tbe Milwaukee river. In all these northwestern states, it is well settled that tbe owner on tbe bank takes title to tbe center of tbe stream. Where tbe stream is navigable in point of fact, tbe right of tbe riparian owner is subject to tbe easement of tbe public in it as a highway by water. It is for you to And whether this was a navigable stream in fact — that is, a channel or water course, so deep as to be used for purposes of navigation. I suppose, if you believe tbe witnesses, you will have no difficulty in deciding that it •was so. I instruct you, however, that tbe owners on tbe bayou, for example in block 51, could not own to tbe center of tbe main river west of tbe island, because of tbe intervening plat of River street and tbe blocks on tbe island. Then this is complicated with another highway, to wit, River street. I think tbe plat made and recorded by tbe proprietors, and their conveyances of lots along tbe east side of tbe bayou, afforded a; pledge to tbe purchasers, that they would have tbe rights of riparian owners ; and, unless there is an express reservation, they take not only to the water, but also tbe land under tbe water. River street lies along tbe west bank of tbe bayou, either partly or altogether under tbe water thereof. I charge you, that if you find that tbe bayou was a navigable stream until filled; that tbe defendant was tbe owner of tbe land on tbe east bank thereof, by purchase from Juneau and Martin under their plat; that River street and tbe bayou lay upon each other or overlapped, leaving no space between them; and if you find from tbe plat, deeds, and other testimony, that tbe proprietors, Juneau and Martin, intended to devote to tbe public, tbe use of tbe entire space between block 50 and block 51 as a highway, partly by land and partly by water, then that whole space was a highway, and the defendant bolds to tbe center of that entire space at least. In that case, since it is admitted that Juneau and Martin conveyed away both blocks 50 and 51, in view of and according to tbe plat which they had made, long before the qnit-claim from Juneau and wife to and Wells, in 1849, through which the plaintiff claims title, it follows that Juneau and Martin had parted with all their title, not only to that part of the lots in said block on the original dryland, but also to the land under the entire highway, embracing Biver street and the bayou, and so had nothing left to convey to White and Wells. And so, in that case, they cannot maintain this action. You will observe that this all depends upon its being proved to your satisfaction, that the bayou was a navigable stream, and was left by the proprietors as a highway, and that there was no reservation of the bayou in the deeds. And so if you find all these facts, you must find a verdict for the defendant.” The plaintiff excepted to so much of said charge as instructs that the rule that the riparian proprietor only owns to the point of the flow of the tide, has no application to the great lakes. 2. To so much as instructs, that if the jury find from the plat, deeds and other testimony, that Juneau and Martin intended to devote to the use of the public the entire space between blocks 50 and 51, as a highway partly by land and partly by water, then the whole space was a highway, and the defendant holds to the center of that entire space at least. 8. To so much as instructs, that if the bayou was navigable and a highway, and there was no reservation of the bayou in the deed, and Juneau and Martin had conveyed according to the plat, blocks 50 and 51, previous to the quit-claim of Juneau to White and Wells, then they, Juneau and Martin, had parted Vith all their interest in the premises in dispute, and had nothing to convey by such deed, and the plaintiff cannot recover. Verdict and judgment for the defendant. The real question in this case is, whether the conveyance, in 1886, of lots 4 and 5 in block 51, conveyed any part of the premises in controversy. If so, it was because it was included in the terms of the grant, and not because it has become, by subsequent events, more valuable to the grantee, than to any other person. The premises in dispute did not Pass as aPPurtenant to tbe lots; land cannot be appurtenant to land. 2 Met., 147; 8 id., 260; 10 Pet., 25; 15 John., 447. There are no courses and distances given in the deed; nothing but the numbers of the lots and block, with a reference to the plat. The plat must, therefore, be considered as copied into the deed. The proprietors had a right to plat the bayou narrower or broader than it really was, so that they did not interfere with rights of navigation, if it was in fact navigable, and the testimony shows that they did, in fact, disregard the natural boundaries of the bayou in making the plat. Their grantees under the plat would therefore take according to the plat, and not according to the natural boundaries. The deed and plat together call for a western boundary for lots 4 and 5, on the bayou; but it is not the natural bayou, but the bayou of the plat. If there is any ambiguity about them, it is patent and not explainable by parol. 10 Pet., 25 ; 11 M. & W., 183. The lines of the lots go down to the bayou of the plat; they do not run into it, and there is a boundary line between them and the bayou, defined on the original plat. If it had been intended to include the bayou to the center,, the lines would not have stopped on the shore. Words of exclusion were not necessary in the conveyance. The boundary lines are run — the exact place pointed out by the plat; all within those lines is lot; all without, is something else. 6 Mass., 435 ; 16 id., 288 ; 15 Johns., 447; 10 Pet., 25. “ It is clear that the proprietors did not intend that the bayou should be a mere mathematical line, for if they did, they would have made it so, and extended the side lines to it, and not have platted the bayou wider than the lots, with shores and a space between.” Counsel commented on the case of Kimball vs. The City of Kenosha, and contended that the authorities cited in that case did not sustain the doctrine “ that a deed of land bordering on a street or road, conveys the soil to the center of the street, and referred to Child vs. Starr, 4 Hill, 369 ; 21 Pick, 292; 11 id., 193 ; 5 Wheat., 21. These cases establish the principle, that each particular grant is to be construed by its words and circumstances, and if they do not exclude the highway, it passes as included in the grant. The conveyance of lots 4 and 5 goes only to the bayou, thence along the bayou — under the most liberal construction, along the center of the bayou. The extent of that grant cannot depend upon the accident of the platting the land between the bayorr and the river. If the proprietors had occupied that land as a pasture field, the rule would have been the same. The deed does not call for the river as a boundary, but for a boundary by the plat. If'the proprietors, after platting the island, had dredged out block 50 so that the water of the river would have flowed up to block 51, would they have lost title to block 50 ? Clearly not. Call the bayou what you will — pond or navigable stream — there is no law which gives a riparian proprietor title beyond the center of it, and no law which gives the owner of block 50 land east of the center of Eiver street. If there is land between, the plaintiff showed title to it, and should recover it. We have already seen that a deed of a lot conveys only the ground included in the lines on the plat. It is now material to enquire into the nature of the bayou in order to determine the boundary. If it was a stream or water-course, the boundary of lots 4 and 5 would be the thread of the stream (Angelí on Water Courses, § 11, et seq.); if a pond or pool, then the boundary was the low water margin (id., § 41, et seq.); if the tide ebbed and flowed, then the boundary was high water mark. The plaintiff proved that there was a light lunar tide in the lake, which extended above lots 4 and 5, and the court erred in refusing the charge asked by the plaintiff on that point. The court erred in refusing the third instruction asked, as the plaintiff had made out a prima facie title. It erred also in the instructions given. The second instruction was erroneous, for there was not the least evidence that the propraetors considered the bayou and Eiver street as one highway- — -the means of locomotion over them were different, and they platted them as two, not one. 1 Blackf., 43; 6 Pet., 498. The third instruction was erroneous. The dedication of the property to the public leaves the fee in the owner, and all right to the soil not necessary to the enjoyment of the easement created. When the beneficiary refuses the benefit offered, the whole estate reverts ^0110^ court erred, also, in allowing tbe ques-put to tbe witness as to tbe representations made to bim Tqj Juneau and Martin, at tbe time be bought lots in block 47, They bad, long before that time, conveyed'lots 4 and 5, in block 51, and conversations about those blocks not bordering on tbe bayou could not have been material, and tbe testimony must have misled tbe jury. 6 Pet., 498. In case of a lake or' pond, tbe proprietor on tbe shore bolds down to low water mark. Angelí on Water Courses, §§ 41-43; Lit. Fund vs. GlarJc, 9 Iredell, 58; McPhaul vs. Gilchrist, 7 id., 169. On rivers, where tbe tides of tbe ocean ebb and flow, tbe riparian proprietor owns down to high water mark, and all below that belongs to tbe state. Angelí on TideWaters, 23, 66, 73. On rivers, where tbe tides of tbe ocean do not flow, tbe riparian proprietor bolds to tbe thread of tbe stream (id. 75-79 ; Middleton vs. Pritchard., 3 Scam., 510 ; Cox vs. The State, 3 Blackf, 193; Jones vs. Pet-tibone, 2 Wis., 308; Walker vs. Shepardson, 4 id., 486; Angelí on Water Courses, §§ 10, 11, 23, 25, etseq., 535,542, 545; Ordinance of 1787), and if there is an island nearest bis land, will own across tbe small stream and island to tbe center of tbe main stream. Angelí on Water Courses, §§ 44^53 ; Ingraham vs. Wilkinson, 4 Pick., 268. Tbe law will indulge every reasonable presumption to secure certainty in boundary lines, and to find a certain owner to every parcel of land. Angelí on Tide Waters, 19, 20, 2d Ed.; 5 Greenl., 69; 2 Conn., 481; 20 Johns., 90; 3 Ohio, 495; 3 Scam., 510. Tbe owners of adjacent lands bold to tbe center of a highway by land. Angelí on Highways, §§ 83, 301, et seq.; 7 N H., 275 ; 6 Shep., 76; 13 Conn., 23; 1 Sandf., 323 ; Kimball vs. Kenosha, 4 Wis., 321; 3 Scam., supra. All limitations are, in their nature, closely restrictive, and in a deed, will be construed most favorably to tbe grantee. Angelí on Water Courses, §§ 5,17,18,173-190; 3 Johns., 375; 2 Har. & Johns., 112; 8 Porter, 9. Tbe rule which controls all other rules, where the intention of the parties is to be implied, but is not fully expressed, is, that that which is most material and certain shall prevail over that which, is less material and certain. Angelí on Water Courses, §§ 5, 11, 12, 13, 14, 24, 25,29,33, 37, 541; 7 Wheat., 7 ; 1 Strobhart, 143 ; 1 Eich-ardflon, 491; 18 Pick, 268 ; 3 Eichardson, 80 ; 5 N. EL, 520; 3 J. J. Marshall, 420; 3 Scam., 510; 1 Taylor, 130; 4 Dev. & But., 335 ; 5 Wheat., 459 ; 8 Watts, 470. This rule governs generally in relation to corners, calls and stakes, in surveys and deeds, and the extent of lines terminating at a water course. ■ Angelí on W. C., §§ 21, 36, 43 ; 2 Cush., 199; 6 Mo., 229 ; Story’s IJ. S. Laws, 960 — Act of Eeb. 11,1805. As to what constitutes a dedication, and what will prove it, Angelí on Highways, § 142-151. There are no straight lines limiting the lots at the edge of the water, but by legal intendment they extend to the most certain call. On the bayou, that call would be that stream, if the plat had shown lots on the island abutting eastward on the bayou; but as the plat shows Eiver street on the eastern edge of the island, partly or altogether under the waters of the bayou, with a definite west plat line, which can be located exactly, but with its east line covered by the water, while the certificate declares the street to be just 80 feet wide, affording the means of fixing the center and east lines thereof with certainty, it follows that the most certain western call of the lots 4 and 5, in block 51, is Eiver street. The owners of lots on the west side of that street take certainly to its center. The owners of lots on the east side of the bayou certainly take to the thread of that stream. If the original proprietors, by legal presumption, r'eserved a strip of land between these two, it must be such an irregular strip as would be bounded on the west by the midle line of Eiver street, and on the east by the thread of the bayou. Now since Eiver street was laid out in spme places partly, and in others altogether under the bayou, they must have presumed that so much of the latter would be speedily filled up for the purposes of a street, and so the western margin would be at once obliterated, with no survey or other means to restore it in proof, while the stream might be kept open for an indefinite period for purposes of navigation, and the eastern shore line be either obliterated by docks, &e., or varied by acere-^°n 01' Againi suppose tbe center line of tbe crosses and lies east of tbe thread of tbe bayou, a part 0f -way, wbo then owns tbe land between those lines, and who would possess it if the bayou were filled and tbe street vacated ? Again, tbe plat in tbe bands of tbe vendor, shown to a purchaser of lots 4 and 5, would be as good as a written representation that those lots did and should have access to and front on River street on tbe west, with tbe additional advantage of a navigable channel of water. If tbe jury found in this case, as we suppose they did, that tbe bayou was a stream, an arm of tbe river, or water course, then they must also necessarily have found that tbe east line of River street was as far east as tbe center or thread of tbe bayou; or thejr must have found that tbe bayou was, in point of fact, navigable until filled; that tbe defendant was tbe owner of tbe land on tbe east bank thereof, by purchase from Juneau, under tbe plat made by Juneau and Martin ; that River street and tbe bayou lay upon each other, or over-lapped, leaving no space between; and that tbe proprietors, Juneau and Martin, intended to devote to the public tbe use of tbe entire space between blocks 50 and 51, as a highway, partly by land and partly by water, because it was only in case they found all these latter things that they were instructed to find, that tbe defendant bolds to tbe center of tbe entire highway, land and water, at least. With such finding of the fact, in either alternative, tbe verdict and judgment in favor of tbe defendant, was correct. If River street extended east to or beyond the center of tbe stream, then the defendant, by reason of bis ownership to tbe center of this stream simply, owns all the land which is described in tbe ■ complaint. If we adopt tbe other alternative, then, certainly, tbe defendant owns to tbe center of tbe highway, subject simply to the public easement or right of passage, and it is not pretended that be would not bold tbe land in dispute by that rule.