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(Wis., 214 N. W. 820.)

the enjoyment of the waters upon or adjacent thereto, and the use hereinafter authorized neither injuriously affecting nor resulting in any impairment of the interest of the public in said waters but being in the interest of the public and in aid and improvement of the public use of the waters and lands for purposes of navigation and other public uses, and for the protection of the public docks, wharves, and harbor facilities which may be constructed adjacent thereto, the said city of Milwaukee is hereby authorized and empowered to fill in and reclaim, or agree to fill in and reclaim or cause to be filled in and reclaimed, any or all of said lands, and to convey to the owner or owners of the shore land adjacent thereto any or all of said lands in fee simple, either before or after filling in and reclaiming the same, in exchange for and in settlement of damages, in whole or in part, for the taking of lands of said owner or owners on the main land between said harbor entrance and Wilcox street extended which said city may deem necessary and more advantageous for use by it for the purposes set forth in subsection 1 hereof, and such owner or owners are authorized and empowered to fill in and reclaim any unfilled portions of said land and, in aid of commerce and navigation, to construct dock and wharf facilities on any of said land and to use any or all of said land for any proper purpose.

"Section 2. This act shall take effect upon passage and publication. "Approved June 19, 1923."

A mental picture of this gigantic project may be realized from a copy of one of the plats, being an exhibit in this case, and which is now reproduced upon a miniature scale.

Referring to the following plat, it will be observed that the portion thereof included within the quadrangle colored blue_represents the land authorized by the statute to be conveyed by the city to the Illinois Steel Company; and the part of the map colored green represents the

area which the steel company, in the exchange, must convey to the city. As a part consideration of this transfer, the city is also authorized and obligated to fill in and to reclaim all or the greater part of the lands to be conveyed to the steel company. The land represented upon the plat by the blue quadrangle, as will appear from the facts found by the legislature under the act of 1923, no longer serves the purposes of navigation or commerce. The legislature further found that the proposed conveyance will not affect materially the rights of the public in its free use of the waters for either navigation purposes or the incidents connected therewith. Furthermore, it is found that the proposed structures within the area to be conveyed to the steel company will afford protection to the proposed docks, wharves, piers, and slips forming a part of the plan involved in the construction of the outer harbor of the city, and will therefore serve the city in its general scheme, which is concededly designed to promote navigation and commerce upon Lake Michigan. See plat.

Therefore the vital and crucial issue raised involves the right of the state in its authorization to the city to convey a portion of the submerged land to a private corporation like the steel company; such conveyance being an essential requisite of the entire plan to aid the city in the construction of its proposed outer harbor, in aid of navigation and commerce. Briefly stated, we are concerned herein with a trine under and pursuant to which proper construction of the trust docthe state holds the title to these sub

merged lands in trust, in accordance with the provisions of the Ordinance of 1787 and the constitutional provision above quoted.

We are therefore dealing, first, with the interests and title of the state; second, the interests of the United States; third, the interests of the city of Milwaukee; fourth, the interests of riparian owners; and, fifth, the interests of the public at

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(— Wis., 214 N. W..820.)

rights and interests of all of these parties, we embrace all interests involved.


large; and, when we consider the the lands to the necessities and uses of commerce.' Hardin v. Jordan, 140 U. S. 381, 382, 35 L. ed. 433, 11 Sup. Ct. Rep. 812, 838. The common-law rule in regard to tidewaters has been extended to our Great Lakes, which are treated as inland seas, and it is held that it depends on the law of each state to what extent this prerogative over lands under the water shall be exercised. In the case of Barney v. Keokuk, 94 U. S. 334, 24 L. ed. 227, it was held that it is for the several states themselves to determine this question, and that if they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections." But 'it has never been held that the lands under water in front of the lands of riparian owners are reserved to the United States, or that they can afterwards be granted out to other persons, to the injury of the original grantees. The attempt to make such grants is calculated to render titles uncertain and derogate from the value of natural boundaries, like streams and bodies of water.' Hardin v. Jordan, supra.'

The text-books, such as Gould on Waters and Farnham on Waters, contain interesting, learned, and exhaustive discussions upon this subject. The reference books like the Encyclopædia of Law and Ruling Case Law, written and compiled by the most eminent and learned authorities upon the subject of waters, are also replete in their discussions, and are helpful as a guide. of the adjudicated cases cover to a large extent the entire field. All evincing and manifesting the importance of the subject herein considered. The early development of the principles involved originated in England at the time of the very beginning of our common-law system of jurisprudence. The divergent views held by these textbook and reference writers and by the courts, to say the least, are bewildering and are difficult of reconciliation. This court, however, from time to time has considered all of the various phases, and has evolved certain definite principles, which are binding upon us, and which we will endeavor to follow.

In McLennan v. Prentice, 85 Wis. 427, 443, 55 N. W. 770, it is said: "In the absence of express and competent grant to some other, the state is the owner of the fee of all lands under navigable waters in the Great Lakes, but in trust only, for the public uses and purposes of navigation and fishing, and they may not be granted by the United States to a private person for a purely private purpose; that, the title to such lands being in the state, 'they are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by Congress with regard to public navigation and commerce, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce and subjecting

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See also Fox River Paper Co. v. Railroad Commission, 274 U. S. 651, 71 L. ed. 1279, 47 Sup. Ct. Rep. 669, a decision handed down by the Supreme Court of the United States on May 31, 1927, case No. 492; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 272, 277, 35 L. ed. 1004, 1010, 12 Sup. Ct. Rep. 173; Packer v. Bird, 137 U. S. 661, 669, 34 L. ed. 819, 820, 11 Sup. Ct. Rep. 210.

It will be noted from the foregoing quotation that these submerged lands may not be granted by the United States to a private person for purely private purposes. This is so because, as it is said in Illinois Steel Co. v. Bilot, 109 Wis. 426, 83 Am. St. Rep. 905, 84 N. W. 856; "The United States never had title, in the Northwest Territory, out of which this state was carved, to the beds of lakes, ponds, and navigable rivers, except in trust for public pur

poses; and its trust in that regard was transferred to the state, and must there continue forever, so far as necessary to the enjoyment thereof by the people of this commonwealth. Whatever concession the state may make without violating the essentials of the trust, it has been held, can properly be made to riparian proprietors.'

It is clear from what is said in the Bilot Case, which involved the validity of a patent from the United States to certain lands abutting Lake Michigan, that under the Ordinance of 1787, pursuant to which these lands were transferred to the federal government in trust, the United States merely held title thereto as an intermediary trustee, charged with the trust to hold and to convey to the various states as they were respectively carved out of the great Northwest Territory.

The language above quoted from the Prentice Case, pursuant to which the states must themselves determine the extent to which the prerogative over lands under the water shall be exercised, explains the divergent views contained in the opinions of various states upon the subject. Wisconsin, therefore, as it had a right to do, and as is recognized by all the authorities, when the Constitution was adopted, placed itself fundamentally on record in favor of the trust doctrine, and we must therefore reckon with this doctrine at every phase of the discussion of the issues in this case.

In Diedrich v. Northwestern Union R. Co. 42 Wis. 248, 262, 24 Am. Rep. 399, it is held: "Riparian rights proper are held to rest upon title to the bank of the water, and not upon title to the soil under the water; riparian rights proper being the same, whether the riparian owner owns the soil under the water or not."

See also Stevens Point Boom Co. v. Reilly, 46 Wis. 237, 49 N. W. 978; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Doemel v. Jantz, 180 Wis. 225, 31 A.L.R. 969, 193 N. W. 393.

Such rights did not originate pursuant to any statute, but were developed by judicial construction in the course of litigation, and they grew out of the necessity of the situation.

It is then held in the Diedrich Case that "a riparian owner upon navigable water, unless pro

hibited by local law, has the right to construct in shoal water, in front of his land, proper wharves or piers, in aid of navigation, and at his peril of obstructing navigation, through the water far enough to reach actually navigable water; this being held to further the public use of the water, to which the public title under the water is subordinate."

See also Cohn v. Wausau Boom Co. 47 Wis. 314, 2 N. W. 546; A. C. Conn Co. v. Little Suamico Lumber Mfg. Co. 74 Wis. 652, 43 N. W. 660; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Illinois Steel Co. v. Bilot, 109 Wis. 418, 83 Am. St. Rep. 905, 84 N. W. 855, 85 N. W. 402; Doemel v. Jantz, supra.

This is also a right possessed by a riparian owner, and incident to his ownership, and is recognized by the courts in order that the owner of the upland may be afforded an opportunity of promoting navigation and of obtaining the highest degree of use permissible in the enjoyment of his riparian rights. It must be conceded that the construction of wharves or piers out to navigable water may result in some interference with or obstruction to navigation or the incidents thereof; yet the practical increased degree of navigability of the water by reason of the construction of such wharves or piers is of such great importance that these structures are tolerated and recognized in the law, notwithstanding the trifling interference with navigation they may produce. Briefly speaking, the inferior rights are deemed subordinate to the greater rights.

Further on in the Diedrich Case it is said: "As a right of necessity, when water, navigable or not navigable, is by natural causes wearing

(Wis., 214 N. W. 820.)

away, and intruding upon its banks, the riparian owner, whether or not he owns the soil usque ad medium filum aquæ, may, as against the public, at his peril of obstructing the public use when the water is navigable, and at his peril of the necessity, intrude, as far as may be necessary, into the water, for the construction of works necessary to the protection of his land against the action of the water."

Here again we have an express right in the riparian owner, recognized by reason of the necessity of the occasion, which right also, as in the case of the building of piers or wharves, results from a judicial construction of the subject of riparian rights. The opinion in the Diedrich Case proceeds as as follows: "In speaking of water as navigable or not navigable, we do not use the words in their sense at the common law. Waters at the common law were called navigable only when affected by the ebb and flow of the tide. Of course in this state, bounded on one side by a great fresh water sea, and on another by a great river, which with its confluents constitutes perhaps the most extensive inland navigation in the world, and having within it many streams and bodies of water capable of navigation and actually navigated, there is no water subject to the ebb and flow of the tide, or called navigable at the common law. Here, therefore, the restricted sense of the word 'navigable,' at the common law, is wholly inappropriate to the actual condition of things."

It will be immediately observed by the reader that the definition of the term "navigability" has by this court been extended to a degree not recognized by the common law of England, and such extension is recognized by our courts and by other courts because the old common-law doctrine is unsuitable as applied to conditions existing in this and many other states.

At various seasons of the year the waters of Lake Michigan and the inland lakes recede from the high wa

termark, with the result that lands at times under water become exposed. In the case of Doemel v. Jantz, supra, it was held: "The public has no lawful right to enter and travel upon that portion of the shore of an inland navigable meandered lake lying between the ordinary high and low watermarks; and upon such an entry the riparian owner may maintain an action of trespass."

In that case it was also held that riparian rights became vested in the owners of the uplands bordering on navigable waters at an early date in the history of Wisconsin, and have been considered as so vested ever since. The free and exclusive right of the riparian owner to enter upon the waters abutting his lands is a valuable right; it enhances the market value of his property; for such rights he has been taxed; and the owner of such riparian rights can only be deprived thereof by sale or condemnation. In the opinion in the Doemel Case it is also said: "During certain periods of the year when precipitation is large and when the waters of the lakes are swelled by the increasing inflowing volumes coming from springs, rivers, creeks, and the flowage of surface water and the precipitation in the form of rain, the lake exercises its dominion over the land to the high watermark. This dominion, however, is not permanent. Upon the seashore, where the waters are affected by the tide, it is intermittent. As to inland lakes and rivers, such assertion of dominion on the part of nature is periodical. So that it would appear but logical to hold that when nature, in pursuance to natural laws, holds in its power portions of the land which at periods of the year are free from flowage, then during such periods the strip referred to is subject to all the rights of the public for navigation purposes. On the other hand, when the waters recede, these rights are succeeded by the exclusive rights of the riparian owner. So that during periods of high water the riparian ownership

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