Yates v. Milwaukee
77 U.S. 497 (1870)

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U.S. Supreme Court

Yates v. Milwaukee, 77 U.S. 10 Wall. 497 497 (1870)

Yates v. Milwaukee

77 U.S. (10 Wall.) 497

Syllabus

1. The owner of land bounded by a navigable river has certain riparian rights whether his title extend to the middle of the stream or not.

2. Among these are free access to the navigable part of the stream and the right to make a landing, wharf, or pier for his own use or for the use of the public.

3. These rights are valuable and are property, and can be taken for the public good only when due compensation is made.

4. They are to be enjoyed subject to such general rules and laws as the legislature may prescribe for the protection of the public right in the river as a navigable stream.

Page 77 U. S. 498

5. But a statute of a state which confers on a city the power to establish dock and wharf lines and to restrain encroachments and prevent obstructions to such a stream does not authorize it to declare by special ordinance a private wharf to be an obstruction to navigation and a nuisance and to order its removal when in point of fact it was no obstruction or hindrance to navigation.

6. The question of nuisance or obstruction must be determined by general and fixed laws, and it is not to be tolerated that the local municipal authorities of a city declare any particular business or structure a nuisance in such a summary mode and enforce its decision at its own pleasure.

In the year 1856, Shepardson, who was the owner of a lot in Milwaukee fronting on the Menomonee and Milwaukee Rivers in the said city and who had begun to build a wharf at the junction of those rivers, conveyed the interest that he had in the wharf and in the front of the lot to the center of the Milwaukee River to one Yates, with the right and privilege of docking, dredging out, and making a waterfront on the Milwaukee River. Between the margin of the water, which for the purposes of this case may be assumed to be the eastern boundary of Shepardson's lot, and the navigable channel of the Milwaukee River, a space intervened which was covered with water more or less, but which was of no use for purposes of navigation. The title of this was supposed by Shepardson and Yates to be conveyed by the deed from the former to the latter, and over it Yates built a wharf of the width of the lot and extending one hundred and ninety feet, in order to reach the navigable part of the river.

An act of the Wisconsin Legislature approved March 31, 1854, had authorized the Common Council of Milwaukee

"by ordinance to establish dock and wharf lines upon the banks of the Milwaukee and Menomonee Rivers, restrain and prevent encroachments upon said rivers and obstructions thereto, . . . and also to cause the said Milwaukee River to be dredged"

&c., and in 1864, the city by an ordinance declared this wharf an obstruction to navigation and a nuisance and ordered it to be abated. On the refusal of

Page 77 U. S. 499

Yates to abate it himself, the city entered into a contract with one Miller, to remove it, and thereupon Yates filed the bill in the court below against the city and Miller, to restrain them from doing so.

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There was no evidence to show that the wharf was an actual obstruction to navigation or was in any other sense a nuisance.

It appeared, however, by the record of the case of Judd

Page 77 U. S. 500

v. Yates in the Supreme Court of Wisconsin, [Footnote 1] that sometime before this bill, Yates sued one Judd (a stranger to this suit) alleging that he, Yates, was the owner of the wharf in question and that Point Street, which was originally laid out to the low and unnavigable waters of the river, had been filled in on the north half thereof, adjacent to the wharf of the plaintiff; that the defendant had wrongfully entered upon that portion of Point Street which had been filled in and graded, and had excavated the same, [Footnote 2] and that in consequence thereof, the wharf of the plaintiff had been undermined &c., and he claimed damages for this consequential injury.

The answer set up that the former owners of the premises had made a plat; that, in subsequent partition suit between the owners, the court had adopted the plat and divided the lots among the owners with reference to the plat, that the plat represented the premises as a portion of Milwaukee River, and that "the premises became thereby a highway by water."

The defense was sustained by the Supreme Court of Wisconsin upon the doctrine of dedication, it conceiving that the premises for the injury to which the plaintiff complained were devoted by the original proprietors to the public use as a highway by water, and consequently that the grading, filling, and other works of the plaintiff within the line of such highway, by which it is blocked up and destroyed, were a public nuisance.

The court, in its opinion in the case, speaking of the plat, said:

"Highways by land and highways by river, wherever clearly delineated and their boundaries fixed, stand on the same footing, and it is immaterial whether they are actually passable in the whole extent or not. If not passable, the public have the right to make them so,"

&c.

In the present suit, the court below, relying perhaps on

Page 77 U. S. 501

the decision referred to, dismissed the bill. The complainant appealed.

Page 77 U. S. 503

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