Summary
setting forth the definition above in a case deciding whether easement holders have riparian rights
Summary of this case from Figliuzzi v. Carcajou Shooting ClubOpinion
February 10, 1956 —
March 6, 1956.
APPEAL from a judgment of the circuit court for Shawano county: ANDREW W. PARNELL, Circuit Judge. Affirmed.
For the appellants there were briefs by Lehner, Lehner Behling of Oconto Falls, and oral argument by Adolph P. Lehner.
For the respondents there was a brief by Fischer, Brunner Strossenreuther of Shawano, and oral argument by L. J. Brunner.
This is an action for the abatement of a nuisance. In 1903 the Lake View Company of Shawano, a corporation, was the owner of a tract of land located between the north shore of Shawano lake and a town road which has since been designated as County Trunk Highway H. During that year the corporation subdivided the land and platted the same as Lake View Plat, which was duly recorded. The land was divided into more than 60 lots located in three tiers. The company reserved a strip of land along the lakeshore varying in width from 62 feet at the east to 75 feet at the west, which was marked on the plat Private Park Reserve for Lot Owners Only. The southerly tier of lots borders on this private-park reserve. Between the southerly tier of lots and the next tier to the north the company reserved a 60-foot strip of land which was designated on the plat as Private Avenue for Lot Owners Only. Between the second tier of lots and the northerly tier there was a reservation by the company of a similar avenue. Between lots 35 and 36 in the center tier of lots the company reserved a private alley 20 feet in width. It reserved another private alley 20 feet in width between lots 10 and 12 in the southerly tier of lots. As the lots were sold there was incorporated in the deeds an easement for travel on foot or with team over all those parts of the plat designated as private avenues for lot owners only and over the private alleys. The following easement was also incorporated in each deed:
"And there is hereby given, granted, and sold to the said grantee an easement, right, and privilege to pass over, walk on, sit upon, and enjoy the entire lake front, designated on said plat as `Private Park Reserve For Lot Owners Only,' same being intended for private park only and not otherwise and to be used for that purpose in connection with said lot herein granted."
On February 8, 1946, the company conveyed the private avenues and private alleys to the town of Wescott, and extended the private alley between lots 10 and 12 across the private-park reserve to the north shore of Shawano lake.
The defendants acquired lot 54 in May, 1938, lot 67 in October, 1941, and lots 55 and 56 and a part of lot 66 in January, 1945. The plaintiffs acquired lot 12 in said plat in July, 1948, and lots 10 and 35 in July, 1953. The defendants operated a grocery store and rented cottages that are located upon lots owned by them to tourists. The plaintiffs also have cottages upon some of their property that they rent. For several years the defendants each spring constructed a pier extending into the lake, which was removed each fall. This pier was approximately 140 feet long with wings on the southerly or lake end thereof. The defendants kept boats tied up at the dock which they rented to people occupying their cottages, and to others. Some of the other lot owners also tied boats to their dock. In 1953 and in early 1954 the plaintiffs requested the defendants not to erect the pier opposite either of their lots, 10 or 12. Defendants insisted upon their right to build the pier, and this action was started in April, 1954.
At the trial it was the position of the plaintiffs that Shawano lake is navigable; that the defendants are not riparian owners; that the pier is constructed and maintained without permission of the state and is a public nuisance; that the defendants are trespassers and that the permittees of the defendants are noisy and boisterous at all hours of the day and night, and that such conduct and noise deprive the plaintiffs of the full right and enjoyment of their property, and the same constitutes a private nuisance. The defendants contended that, by virtue of the easement contained in their deeds, they had riparian rights, including the right to erect a dock abutting on the private-park reserve in common with all lot owners within the plat. The plaintiffs also erected and maintained a dock extending into the lake to which boats were tied.
The trial court made extensive findings of fact and conclusions of law, and on August 24, 1955, entered a judgment dismissing the plaintiffs' complaint, but enjoining the defendants from renting boats to the general public other than guests and lessees of their cottages located within the plat. The plaintiffs appeal from that judgment.
The plaintiffs first complain of finding of fact No. 17, which stated that the defendants, by virtue of the original deeds, have easements granting them riparian rights in the private-park reserve of said plat. It is contended that this finding is contrary to law. We agree with that contention. Shawano lake is an inland, navigable, meandered lake, and the title to the soil under the waters thereof is held by the state in trust for the benefit of the public for navigation purposes and its various incidents. Riparian owners have certain rights based upon title to the ownership of the bank or upland. Among other such riparian rights is included the right of access and to construct in front of their land piers long enough to reach water actually navigable for such boats as are in use or appropriate to the lake. Doemel v. Jantz, 180 Wis. 225, 193 N.W. 393; Bond v. Wojahn, 269 Wis. 235, 69 N.W.2d 258.
The defendants claim only an easement. An easement has been defined in Wisconsin as a liberty, privilege, or advantage in lands, without profit, and existing distinct from the ownership of the soil. Hazelton v. Putnam, 3 Pin. 107; Guse v. Flohr, 195 Wis. 139, 217 N.W. 730, 221 N.W. 110; Union Falls Power Co. v. Marinette County, 238 Wis. 134, 298 N.W. 598. In Polebitzke v. John Week Lumber Co. 157 Wis. 377, 147 N.W. 703, it was held that an easement differs from a fee or a limited fee in that in case of an easement title does not pass but only a right to use or privilege in the land of another. It was held in Doemel v. Jantz, supra, that a riparian owner has the exclusive right of access to and from navigable waters to his shore. The defendants are, not the owners of any portion of the private-parking reserve by virtue of the easements contained in their deeds. The Lake View Company is the riparian owner thereof and has the exclusive riparian rights. The company, of course, can permit the defendants, the plaintiffs, and other lot owners within the plat to construct piers, subject to the superior rights of the state and of the federal government. It was held in State ex rel. Askew v. Smith, 109 Wis. 532, 85 N.W. 512, that a boathouse could not be abated as a nuisance upon the complaint of one not a riparian owner. It could be upon action taken by the attorney general.
The trial court found upon disputed evidence that the use made of the pier by the defendants and guests and lessees did not constitute a private nuisance. The finding is not against the great weight and clear preponderance of the evidence and for that reason the judgment dismissing the complaint must be affirmed, although for reasons different from those advanced by the trial court.
The plaintiffs also contend that the conveyance from the Lake View Company to the town of Wescott of the private avenues and alleys, thereby converting them into public highways, is invalid. Several days after the case was argued in this court the plaintiffs filed a reply brief in which they change their position as to the validity of the deed to the town. They now claim that the alley between lots 10 and 12 is a street and that as owners of the land on each side thereof they are the owners thereof. As this alley was extended to the water's edge they now contend they are riparian owners of 20 feet of the shore line. These issues were not pleaded or litigated in the court below, nor was the trial court asked to pass thereon. These contentions are entirely immaterial as to the issues before this court. The pier erected by the defendants is not located, nor does it touch, upon the 20-foot strip. The rights of the plaintiffs to erect a pier are not in issue. The validity of the deed from the company to the town can only be determined in an action in which the town and the company are parties. The contentions advanced in the reply brief cannot change the result.
By the Court. — Judgment affirmed.