-extent of public rights.

10. When the waters of an inland navigable meandered lake recede to low-water mark, the public has the privilege to use the water up to the

latter line, and when they extend to the ordinary high-water mark, the rights of the public are extended accordingly.

Statement by Doerfler, J.:

This is an appeal by the defendant from an order of the county court of Winnebago County, Honorable Fred Beglinger, judge, sustaining plaintiff's demurrer to defendant's

answer.

Plaintiff alleges in his complaint that he is the owner of lot 5 in section 7, town 18, range 17, in Winnebago county; that said land abuts on Lake Winnebago, and has for many years been used for pasturage purposes. It is further alleged that the defendant trespassed upon these lands, to the plaintiff's damage, etc.

The defendant in his answer alleges that he entered and traveled upon that portion of the shore lying between the ordinary high and low water marks of said lake; that said lake is a public navigable lake in this state, and that the defendant had a lawful right to enter and travel upon such strip of land without being guilty of a trespass or of violating any of plaintiff's rights in the premises. To the defendant's answer plaintiff interposed a general demurrer, upon the grounds that the answer did not state facts sufficient to constitute a defense. The trial court sustained the demurrer, and defendant has appealed from such ruling.

Messrs. Williams & Williams, for appellant:

The land under the waters of Lake Winnebago and up to the ordinary high-water mark is owned by the state of Wisconsin, and held in trust for all of the people for their use for all lawful purposes of navigation, fishing, hunting, recreation, travel, and any other lawful public purpose.

Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; Willow River Club v. Wade, 100 Wis. 86, 42

L.R.A. 305, 76 N. W. 273; Illinois Steel Co. v. Bilot, 109 Wis. 418, 83 Am. St. Rep. 905, 84 N. W. 855, 85 N. W. 402; Wright v. Day, 33 Wis. 260; Ne-peeN. W. 661; Mendota Club v. Anderson,

nauk Club v. Wilson, 96 Wis. 290, 71

101 Wis. 479, 78 N. W. 185; Re Trempealeau Drainage Dist. 146 Wis. 398, 131 N. W. 838; Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148; Polebitzke v. John Week Lumber Co. 163 Wis. 322, 158 N. W. 62.

A riparian owner upon navigable waters takes title only to ordinary high-water mark.

Shively v. Bowlby, supra; Barnes v. Midland R. Terminal Co. 193 N. Y. 378, 127 Am. St. Rep. 962, 85 N. E. 1093; Callahan v. Price, 26 Idaho, 745, 146 Pac. 732; State v. Portland_General Electric Co. 52 Or. 502, 95 Pac. 722, 98 Pac. 160; Grey ex rel. Simmons v. Paterson, 60 N. J. Eq. 385, 48 L.R.A. 717, 83 Am. St. Rep. 642, 45 Atl. 995; McManus v. Carmichael, 3 Iowa, 1; Ferry Pass Inspectors' & Shippers' Asso. v. Whites River Inspectors' & Shippers' Asso. 57 Fla. 399, 22 L.R.A. (N.S.) 345, 48 So. 643; Broward v. Mabry, 58 Fla. 398, 50 So. 826; Brickell v. Trammel, 77 Fla. 544, 82 So. 221; Tomlin v. Dubuque, B. & M. River R. Co. 32 Iowa, 106, 7 Am. Rep. 176; C. M. Johnson Sand & Gravel Co. v. Quarles, 121 Ark. 601, 182 S. W. 283; Newell v. Loeb, 77 Wash. 182, 137 Pac. 811; Micelli v. Andrus, 61 Or. 78, 120 Pac. 737; Eagle Cliff Fishing Co. v. McGowan, 70 Or. 1, 137 Pac. 766; Nirdlinger v. Stevens, 262 Fed. 591, affirmed in 273 Fed. 1022; United States ex rel. Koehler v. McGlinch, 5 Alaska. 4; Aquino v. Riegelman. 104 Misc. 228, 171 N. Y. Supp. 716; Johnson v. May, 189 App. Div. 196, 178 N. Y. Supp. 742.

It is the intention of the court to preserve to the public all possible rights which the public may have in the navigable waters of the state, not only as to the portion of such bodies

actually covered by water, but also as to the portion of the land and shore between ordinary high-water mark and the water's edge.

Barnes v. Midland R. Terminal Co. 193 N. Y. 378, 127 Am. St. Rep. 962, 85 N. E. 1093; Johnson v. May, supra; Brickell v. Trammel, 77 Fla. 544, 82 So. 221; Ferry Pass Inspectors' & Shippers' Asso. v. Whites River Inspector's & Shippers' Asso. 57 Fla. 399, 22 L.R.A. (N.S.) 345, 48 So. 643; Broward v. Mabry, 58 Fla. 398, 50 So. 826; Willow River Club v. Wade, 100 Wis. 86, 42 L.R.A. 305, 76 N. W. 273; Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148.

Messrs. Hooper & Hooper, for respondent:

A riparian farmer on Lake Winnebago has the right to exclude the public from intrusion upon his farm lands between high and low water mark on the lake shore.

Mariner v. Schulte, 13 Wis. 692; Diedrich v. Northwestern Union R. Co. 42 Wis. 248, 24 Am. Rep. 399; Slauson v. Goodrich Transp. Co. 94 Wis. 642, 69 N. W. 990; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Priewe v. Wisconsin State Land & Improv. Co. 93 Wis. 534, 33 L.R.A. 645, 67 N. W. 918; Menominee River Lumber Co. v. Seidl, 149 Wis. 316, 135 N. W. 854; Champlain & St. L. R. Co. v. Valentine, 19 Barb. 484; McBurney v. Young, 67 Vt. 574, 29 L.R.A. 539, 32 Atl. 492; Austin v. Rutland R. Co. 45 Vt. 215; Jakeway v. Barrett, 38 Vt. 316; Fletcher v. Phelps, 28 Vt. 257; Mayhew v. Norton, 17 Pick. 357, 28 Am. Dec. 300; Jackson v. Boston & W. R. Corp. 1 Cush. 575; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Wheeler v. Spinola, 54 N. Y. 377; Canal Comrs. v. People, 5 Wend. 423; Waterman v. Johnson, 13 Pick. 261; Paine v. Woods, 108 Mass. 160; Wood v. Kelley, 30 Me. 47; Stevens v. King, 76 Me. 197, 49 Am. Rep. 609; Carli v. Stillwater Street R. & Transfer Co. 28 Minn. 373, 41 Am. Rep. 290, 10 N. W. 205; Lincoln v. Davis, 53 Mich. 375, 51 Am. Rep. 116, 19 N. W. 103; Union Depot, Street R. & Transfer Co. v. Brunswick, 31 Minn. 297, 47 Am. Rep. 789, 17 N. W. 626; Flisrand v. Madson, 35 S. D. 457, 152 N. W. 796; State ex rel. Clark v. Deisch, 38 S. D. 560, 162 N. W. 365; Hardin v. Jordan, 16 Fed. 823; 1 Kinney, Irrig. p. 937, § 542,

note 2; Gould, Waters, § 203; 2 Farnham, Waters, p. 1462.

The rights of the riparian owner are substantially the same whether he owns the subaqueous lands or not.

Delaplaine v. Chicago & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. 386; Diedrich v. Northwestern Union R. Co. 42 Wis. 248, 24 Am. Rep. 399.

The rights of the riparian owner rest not so much on his title or want of title to the bed of the lake, as on his title to the bank.

Diedrich v. Northwestern Union R. Co. supra; Slauson V. Goodrich Transp. Co. 94 Wis. 642, 69 N. W. 990; McLennan v. Prentice, 85 Wis. 444, 55 N. W. 764.

The riparian owner has the exclusive right to build appliances for convenience of navigation out to navigable water.

Northern Pine Land Co. v. Bigelow, 84 Wis. 157, 21 L.R.A. 776, 54 N. W. 496; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Williams v. Lane, 87 Wis. 152, 58 N. W. 77; Thomas v. Ashland, S. & I. River Logging R. Co. 122 Wis. 519, 106 Am. St. Rep. 1000, 100 N. W. 993; Madison v. Mayers, 97 Wis. 399, 40 L.R.A. 635, 65 Am. St. Rep. 127, 73 N. W. 43; Boorman v. Sunnuchs, 42 Wis. 233; Roberts v. Rust, 104 Wis. 619, 80 N. W. 914; McCarthy v. Murphy, 119 Wis. 159, 100 Am. St. Rep. 876, 96 N. W. 531.

Messrs. Herman L. Ekern, Attorney General, and Franklin E. Bump, Assistant Attorney General for the State. Messrs. John F. Kluwin and John C. Thompson, amici curiæ.

Doerfler, J., delivered the opinion of the court:

The only question involved in this appeal is whether a member of the public can legally enter upon and use for the purposes of public travel that strip of land adjacent to plaintiff's upland, and lying between the ordinary high and low water marks, and constituting what is ordinarily known as the shore, without committing trespass. It appearing that. the public interests may be involved in this litigation, the attorney general was permitted to intervene and file a brief and participate in the argument before this court.

Plaintiff is a riparian owner of lands abutting on Lake Winnebago,

and he contends, among other other things, that his grant of land to the lake extends his title to what is known as the ordinary low-water mark, or, if it should be held that his title stops at what is known as the ordinary high-water mark, nevertheless, by reason of being a riparian owner, he is possessed of the exclusive right of the use of the shore between ordinary high and low water marks, and that any entry thereon by a stranger, in either event, for the purposes aforesaid, constitutes a trespass, or a violation or infringement of his riparian rights. On the other hand, the defendant and the state contend that plaintiff's title stops at the ordinary high-water mark, and that the title of the land constituting the shore between such ordinary high and low water marks is held in trust by the state for the benefit of the public, and further, that, if it should be held that plaintiff has a qualified title to the strip in question, such strip is subject to a public easement in the interests of the public, not only for the purposes of navigation and the incidents thereto, but for the purposes of public travel and public purposes generally.

The precise question involved involved herein has never come before this court for decision, although it may be said that the rights of riparian owners similarly situated have been declared in numerous adjudications of this court in such a manner as to constitute a fixed rule of property.

By the Ordinance of 1787, passed for the government of the territory of the United States northwest of the Ohio river, it is provided (art. 4) that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor."

This provision of the Ordinance,

in substantially the same language, has been incorporated into our Constitution, and forms a part of what is known as § 1, art. 9, thereof.

In Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110, the Supreme Court of the United States, in an opinion rendered by Justice Field, decided that all lands under navigable waters which were formerly within the public domain vested in the state for public purposes, and that the term "navigable waters" means waters navigable in fact; that to them the common-law principles relating to tidal waters and the title to land under the same apply to the fullest extent. The doctrine so announced in the Illinois C. R. Co. Case has substantially been declared by this court in the case of Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 83 Am. St. Rep. 905, 84 N. W. 855, 85 N. W. 402, and in Diedrich v. Northwestern Union R. Co. 42 Wis. 248, 24 Am. Rep. 399.

In the Bilot Case it was also held that the United States never had title to the beds of lakes in the socalled "Northwest Territory," out of which Wisconsin was carved, excepting only in trust for public purposes, and that the state, upon its admission to the Union, had conveyed to it the title so held by the United States, and ever since has maintained and held such title solely for such trust purposes, and that any conveyance in violation of such trust is necessarily void. McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Priewe v. Wisconsin State Land & Improv. Co. 93 Wis. 534, 33 L.R.A. 645, 67 N. W. 918; Ne-peenauk Club v. Wilson, 96 Wis. 290, 71 N. W. 661; Willow River Club v. Wade, 100 Wis. 86, 42 L.R.A. 305, 76 N. W. 273; Pewaukee v. Savoy, 103 Wis. 271, 50 L.R.A. 836, 74 Am. St. Rep. 859, 79 N. W. 436; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Illinois C. R. Co. v. Illinois, supra; Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984.

In the early history of the common law the rights of the public in

the navigable waters were confined exclusively to navigation, and the public interest in such waters was limited to purposes of navigation. This doctrine was adopted in this country and extended from time to time so as to meet the different and varying conditions as they arose. The term "navigation," which had ordinarily been confined solely to purposes of commerce, was so enlarged as to include the use of the waters for purposes of travel, for fishing, bathing, recreation, and hunting. Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148. But in so enlarging and extending the public uses of navigable waters, the original purpose of the use of such waters for navigation purposes has never been lost sight of, and, in fact, such use is at the very foundation of

Waters-foundation of public right.

the public right, and

a reading of the case of Diana Shooting Club v. Husting, supra,. brings home the conviction that this conclusion is correct, for, in defining the public use, the various purposes for which the public waters may be used, besides navigation for commercial purposes, are declared to be incidents to navigation. In other words, the extension of the term is a mere corollary to the primary use. That navigation is the foundation of the public use cannot be lost sight of in the consideration of the issue involved in this case, where it is attempted to justify the use of the shore between ordinary high and low water marks, for the purposes of travel or other similar purposes.

In the Diedrich Case, supra, it was held that the rights of a riparian owner are not dependent upon the ownership of the soil under the water, but upon his title to the banks. Such rights cannot be taken from him for private purposes in any event, nor can they be taken for public purposes unless adequate compensation therefor, under the law of eminent domain. Diedrich v. Northwestern Union R. Co. supra; Delaplaine v.

paid

-riparian rights

Chicago & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. 386; Green Bay & M. Canal Co. v. Kaukauna Water Power Co. (Patten Paper Co. v. Kaukauna Water Power Co. (90 Wis. 370, 28 L.R.A. 443, 48 Am. St. Rep. 937, 61 N. W. 1121, 63 N. W. 1019; State ex rel. Wausau Street R. Co. v. Bancroft, 148 Wis. 124, 38 L.R.A. (N.S.) 526, 134 N. W. 330. These riparian rights constitute property that may as property. be the subject of bargain and sale, and are a part of the owner's estate in the land, and enter into the actual value. 27 R. C. L. 1071; Green Bay & M. Canal Co. v. Kaukauna Water Power Co. (Patten Paper Co. v. Kaukauna Water Power Co.) 90 Wis. 370, 28 L.R.A. 443, 48 Am. St. Rep. 937, 61 N. W. 1121, 63 N. W. 1019; State ex rel. Wausau Street R. Co. v. Bancroft, supra; Mills v. United States (D. C.) 12 L.R.A. 673, 46 Fed. 738.

This enhanced value, by reason of the incidents connected with the ownership of the soil, also enters into the amount which the riparian owner is obliged to pay in taxes, and a transfer of the property without any reference whatsoever to these rights automatically conveys and includes them. Illinois C. R. Co. v. Illinois, supra. In 27 R. C. L. p. 1073, it is said upon the authority of numerous cases cited in the notes: "Riparian rights are the result of that full dominion which everyone has over his own land, by which he is authorized to keep all others from coming upon it except on his own terms. They are defined as the rights of the owner of lands upon water to maintain his adjacency to it, and to profit by this advantage, and otherwise as a right to preserve and improve the connection of his property with the water. Those rights are not common to the citizens at large, but exist as incidents to the right of soil itself contiguous to and attingent on the water. In such ownership they have their origin, and not out of the ownership of the bed, and they are the same whether the riparian owner

owns the soil under the water or not."

The riparian owner also has the right to build piers, piers, harbors, wharves, booms, and similar structures, in aid of navigation, and such right is also one which is incident to the ownership of the upland. This private right to so use the public waters was denominated in Cohn v. Wausau Boom Co. 47 Wis. 314, 2 N. W. 546, as an intrusion upon the public right, tolerated only in private aid of navigation, and gives way ex necessitate rei to public measures in aid of navigation. And, as is said in Stevens Point Bcom Co. v. Reilly, 46 Wis. 237, 49 N. W. 978: "This private right of the riparian owner . . is subordinate to the public use of a navigable river, and is always exercised at peril of obstructing navigation."

It has also been held that a riparian owner is entitled to the land formed by gradual accretions and as a result of relictions. He also has the right to use the waters for domestic and agricultural purposes, and he can make improvements necessary to protect his soil from the process of erosion.

These are but few of the many rights of a riparian owner which are necessary incidents to his title to the upland, and such rights are not only generally conceded by the decisions in this state, but by the decisions in practically all the other states where the question has come up for adjudication. But the question as to the right of the public to use the shore between ordinary high and low water marks, it would appear, has been definitely settled by the decisions of this court. In Delaplaine v. Chicago & N. W. R. Co. 42 Wis. 214, 24 Am. Rep. 386, it was held that, as proprietor of the adjoining land and as connected with it, the riparian owner has the right of exclusive access to and from the waters of the lake at that particular place. In McCarthy v. Murphy, 119 Wis. 159, 100 Am. St. Rep. 876, 96 N. W. 531, the language used in

the Delaplaine Case is expressly quoted, adopted, and affirmed.

Note, also, the further pertinent and significant language used by the court in the Delaplaine Case: "It is evident from the nature of the case that these rights [referring to the riparian 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 other words, according to the uniform doctrine of the best authorities, the foundation of riparian rights, ex vi termini, is the ownership of the bank or shore. In such ownership they have their origin. They may and do exist though the fee in the bed of the river or lake be in the state."

In Clement v. Burns, 43 N. H. 609, 619, it is held, after a review of many of the leading cases both in the Supreme Court of the United States and in the state courts: "From this examination of the adjudged cases, it is quite apparent that the principles of the English law have been much modified in the American courts, and that it must now be conceded as an established rule of American law that the owner of uplands adjacent to navigable waters has an interest in the shores, of which he cannot be deprived, even by the sovereign power, without compensation (see 2 Am. Lead. Cas. 224); and the cases are numerous, among those cited, where, for infringing such rights, actions of various kinds, including actions of ejectment and trespass quare clausum fregit, have been maintained by the riparian owners, especially when the soil between high and low water mark has been reclaimed by the erection of wharves, or the filling up of flats. If a writ of entry or trespass quare clausum fregit can