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.
image:a
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
MR. JUSTICE MILLER delivered the opinion of the Court.
The defendants, in support of their right to remove the wharf,
seem to rely 1st, upon the want of title in the plaintiff to the
locus in quo and 2d, upon the absolute power of the City
of Milwaukee, as the repository of the public authority on the
subject of wharves, piers, and other matters affecting the
navigation of the river within the city limits, to determine the
character and location of such structures.
As to the first of these propositions, it does not seem to be
necessary to decide whether the title of the lot extends to
Page 77 U. S. 504
the thread of the channel of the river, though if the soil was
originally part of the public lands of the United States, as seems
probable, the case of
Railroad Company v. Schurmier
[
Footnote 3] would limit the
title to the margin of the stream.
But whether the title of the owner of such a lot extends beyond
the dry land or not, he is certainly entitled to the rights of a
riparian proprietor whose land is bounded by a navigable stream,
and among those rights are access to the navigable part of the
river from the front of his lot, the right to make a landing, wharf
or pier for his own use or for the use of the public, subject to
such general rules and regulations as the legislature may see
proper to impose for the protection of the rights of the public,
whatever those may be. This proposition has been decided by this
Court in the cases of
Dutton v. Strong [
Footnote 4] and
Railroad Company v.
Schurmier, just cited. The Supreme Court of Wisconsin has gone
further, and asserts the doctrine that the title of the owner of
such a lot extends to the center of the stream, subject to the
easement of the public in its use for navigation, and that he
"may construct docks or landing places for goods or passengers,
taking care that vessels employed in navigating the stream are not
impeded in their passage, nor prevented from the use of all parts
of the stream which are navigable. [
Footnote 5]"
This riparian right is property, and is valuable, and though it
must be enjoyed in due subjection to the rights of the public, it
cannot be arbitrarily or capriciously destroyed or impaired. It is
a right of which, when once vested, the owner can only be deprived
in accordance with established law, and if necessary that it be
taken for the public good, upon due compensation.
The act of the Wisconsin Legislature, approved March 31, 1854,
confers upon the City of Milwaukee the authority to establish dock
and wharf lines on the banks of the Milwaukee and Menomonee Rivers
and restrain and prevent encroachments upon said rivers and
obstructions thereto,
Page 77 U. S. 505
and it is by this statute that the summary proceedings for the
removal of appellant's wharf are supposed to be authorized. But the
mere declaration by the City Council of Milwaukee that a certain
structure was an encroachment or obstruction did not make it so,
nor could such declaration make it a nuisance unless it in fact had
that character. It is a doctrine not to be tolerated in this
country that a municipal corporation, without any general laws
either of the city or of the state within which a given structure
can be shown to be a nuisance, can, by its mere declaration that it
is one, subject it to removal by any person supposed to be
aggrieved, or even by the city itself. This would place every
house, every business, and all the property of the city at the
uncontrolled will of the temporary local authorities. Yet this
seems to have been the view taken by counsel who defended this case
in the circuit court, for that single ordinance of the city
declaring the wharf of Yates a nuisance and ordering its abatement
is the only evidence in the record that it is a nuisance or an
obstruction to navigation or in any manner injurious to the
public.
It is true that it is said in argument that the city council has
established a wharf and dock line under the authority of the
statute we have cited, and that Yates's dock projects beyond that
line.
No such defense is set up in the answer, and the existence of
such a line being a matter of which the court could not take
judicial notice, it cannot be taken into account here, though there
is some testimony on the subject as to two different dock lines,
one made before and the other after Yates's wharf was built. But
however this may be, we are of opinion that the City of Milwaukee
cannot, by creating a mere artificial and imaginary dock line
hundreds of feet away from the navigated part of the river, and
without making the river navigable up to that line, deprive
riparian owners of the right to avail themselves of the advantage
of the navigable channel by building wharves and docks to it for
that purpose.
Page 77 U. S. 506
The case of
Yates v. Judd, [
Footnote 6] is much relied on as conclusive of the one
before us. Not as a technical estoppel, though one of the parties
is grantor of the lot in question to the present plaintiff, and the
suit embraced some of the points mooted here. But it is said that,
as a case establishing the law of the State of Wisconsin on the
questions necessarily involved in the present suit, we are bound to
follow it in this Court.
We do not see in that case any legal proposition decided in
conflict with what we have said in the previous part of this
opinion. The court held that from the plat made by the original
owners, who had laid out the lots they would infer a dedication of
the space covered with water in front of the dry land of the lots
to public use, and that Yates' wharf was an invasion of that public
right. This question of dedication, on which the whole of that case
turned, was one of fact, to be determined by ascertaining the
intention of those who laid out the lots, from what they did, and
from the application of general common law principles to their
acts. This does not depend upon state statute or local state law.
The law which governs the case is the common law, on which this
Court has never acknowledged the right of the state courts to
control our decisions except perhaps in a class of cases where the
state courts have established by repeated decisions a rule of
property in regard to land titles peculiar to the state.
This is not such a case. In every instance where the question of
a dedication might arise, it would be decided on the special facts
of each case even in the Wisconsin courts, and the case of
Yates v. Judd lays down no principle of law which would
govern all such cases. The supreme court inferred from the facts as
presented in that case a dedication of the land between the lot, as
ascertained by its given dimensions, and the navigable channel of
the river. That question does not arise here, because, as we have
already seen, the case of
Railroad Company v. Schurmier
decided
Page 77 U. S. 507
that if the lot, as thus described, came to the margin of the
stream, no title to the precise locality supposed to be dedicated
ever passed from the United States.
Much, however, as we respect that court, we feel at liberty to
hold, as we do, that there is no valid dedication as the case is
presented to us.
On the whole, we are of opinion that Shepardson, as riparian
owner of a lot bounded by a navigable stream, had a right to erect
this wharf, and that Yates, the appellant, whether he be regarded
as purchaser or as licensee, has the same right, and that if the
authorities of the City of Milwaukee deem its removal necessary in
the prosecution of any general scheme of widening the channel and
improving the navigation of the Milwaukee River, they must first
make him compensation for his property so taken for the public
use.
The decree of the circuit court is therefore reversed, with
instructions to enter a decree enjoining the defendants below from
interfering with plaintiff's wharf, reserving, however, the right
of the city to remove or change it so far as may be necessary in
the actual improvement of the navigability of the river, and upon
due compensation made.
[
Footnote 1]
18 Wis. 118.
[
Footnote 2]
The star on the diagram on p. <|77 U.S. 499|>499
represents apparently this spot.
[
Footnote 3]
74 U. S. 7 Wall.
272.
[
Footnote 4]
66 U. S. 1 Black
25.
[
Footnote 5]
Walker v. Shepardson, 4 Wis. 486.
[
Footnote 6]
18 Wis. 118.
