Opinion
May 10, 1957 —
June 4, 1957.
APPEAL from a judgment of the circuit court for Dane county: HELMUTH F. ARPS, Circuit Judge, Presiding. Affirmed.
For the appellant there was a brief by the Attorney General and Roy G. Tulane, assistant attorney general, and oral argument by Mr. Tulane.
For the respondent there was a brief and oral argument by Harold E. Hanson, city attorney.
A brief was filed by Robert D. Sundby of Madison, counsel for the League of Wisconsin Municipalities, and Harry G. Slater, deputy city attorney of Milwaukee, as amici curiae.
The city of Madison began an action January 19, 1956, against the state of Wisconsin, pursuant to consent of the legislature, seeking a declaration of its right to erect an auditorium and civic center within a filled area in Lake Monona. Judgment was entered September 10, 1956, and the state has appealed.
The circuit court made findings of fact which are not in substantial dispute. In substance the facts are as follows:
Lake Monona lies within the city of Madison, roughly to the southeast of the central portion of the city. Between Pinckney and Carroll streets there is a sharp upward grade from the shore level to the city streets. Tracks of the Milwaukee Road and the North Western Railway lie along the old shore line at that point with the North Western tracks nearer the lake. The old shore line for many years prior to 1931 was approximately 12.5 feet toward the lake from the center line of the outside track of the North Western. The difference in elevation between Monona avenue and the railroad tracks is about 40 feet. There is no access to the shore from Monona avenue and access by way of Carroll street and Pinckney street is difficult because of the steep grade. The city proposes to construct an auditorium and civic center within an area which extends along the tracks from Carroll street to Pinckney street (about 900 feet) and which extends southeasterly some 300 feet from the tracks. The structure will also extend above the railroad tracks. The area comprises about six acres, the total area of the lake being about 3,300.
As early as 1932 the city commenced filling the bed of the lake between Bassett street on the west and Hancock street on the east. The area filled up to now is devoted to a number of municipal purposes such as park purposes, park drives, and automobile-parking areas. North Shore drive extends over the filled area and the state highway commission has routed Federal Highway 151 over this drive between Broom and Blair streets. The portion of the fill which lies between Carroll and Pinckney streets consists of approximately four acres at present.
The city has issued $4,000,000 of general obligation bonds to erect and equip a municipal auditorium and civic center within the area described. The common council has approved a committee report recommending a theater-type auditorium, a flat-floor exhibition hall, meeting rooms, community center, art gallery, little theater, food-service area, and flat-floor space to contain a refrigeration area. It has also approved the inclusion of boating facilities. None of the contemplated facilities would be limited to residents of the city.
For many years there has been no commercial operation of boats on Lake Monona for the transportation of passengers or freight and the only navigational craft presently consists of rowboats, outboard and inboard motorboats, sailboats, speedboats, and smaller watercraft, and iceboats used in the wintertime. The proposed construction will not materially interfere with the use of such boats or with public navigation on the lake. For many years there have not been any facilities in aid of navigation on the present shore between Carroll and Pinckney streets. The proposed construction will provide usable access to the lake between these streets by thoroughfares for both pedestrians and vehicles.
Between 1868 and 1885 the predecessor of the Milwaukee Road obtained conveyances of right of way from the owners of lots lying along the shore. In 1883, it conveyed to the North Western the right to maintain the North Western's existing single track and to construct another track nearer the lake and further conveyed "all its right, title, and interest in and to the soil along the shore of said Lake Monona and on the lakeside of said proposed track." In 1944, the North Western conveyed to the city "any and all rights, title, and interest of the parties of the first part in and to land or riparian rights in or adjoining the waters of Lake Monona between the northeasterly line of Hancock street extended southeasterly and the northeasterly line of Bassett street extended southeasterly and lying southeasterly of a line drawn parallel with and distant 12.5 feet southeasterly at a right angle from the center line of the most southeasterly railroad track of the parties of the first part."
Ch. 485, Laws of 1927, established a dock line on Lake Monona along a very substantial portion of its boundaries. Part of the dock line so established forms the outer boundary of the area involved in this lawsuit. Ch. 301, Laws of 1931, created a new section of ch. 485, Laws of 1927, reading as follows:
"Said dock line on Lake Monona established by this chapter, is hereby declared to be so established only for the purpose of authorizing said city of Madison to construct and maintain on, in, or over said Lake Monona, but not beyond said established line, parks, playgrounds, bathing beaches, municipal boathouses, piers, wharves, public buildings, highways, streets, pleasure drives, and boulevards. Said dock line shall in nowise affect or supersede the dock lines on said Lake Monona already existing and established pursuant to law by the said city of Madison, in so far as riparian owners are concerned and said dock line so established shall in nowise be construed as being for the benefit of riparian owners. Said city of Madison is hereby granted and given concurrent jurisdiction with the state of Wisconsin of and over said Lake Monona and its lake bed between the low watermark or the dock lines heretofore established by the city of Madison and the dock line established by this chapter and said city may bring any action to restrain, enjoin, or abate any nuisance or purpresture within such limits."
In 1937, the city established a shore line by ordinance between Bassett street and Blount street and this shore line was approved by the public service commission under sec. 30.02(1) (a), Stats. This 1937 shore line lies approximately 100 feet southeasterly and parallel to the outer property line of the North Western. In 1945, the city of Madison established by ordinance a shore line between Bassett street and Blair street which was also approved by the public service commission on July 11, 1945. This shore line coincides with the dock line established by ch. 485, Laws of 1927, and is approximately 300 feet southeasterly and parallel to the outer property line of the North Western.
Ch. 629, Laws of 1955, gave permission to the city to bring a declaratory action against the state for the purpose of determining the city's rights under ch. 485, Laws of 1927, and ch. 301, Laws of 1931.
The circuit court concluded that the state's trust in respect to land under navigable waters may be administered not only for the purpose of improving navigation but also for other public purposes so long as public rights of navigation therein are not substantially interfered with; that the fill and project herein described will not so interfere and is a lawful public purpose; and that ch. 485, Laws of 1927, as amended by ch. 301, Laws of 1931, is valid and constitutional, in so far as it authorizes the project described. Judgment was entered accordingly, declaring that the city has the right and authority to construct a municipal auditorium and civic center in the area described.
The state contends that the legislature did not intend by the 1927 and 1931 acts to authorize construction of a building of the size and character proposed; that if those acts be construed to authorize the proposed building, they are unconstitutional; that the proposed building would serve a local rather than a state public purpose; that the city should pay adequate consideration for the use of the lake bed; and that the city has no authority to spend its funds to erect a building on land subject to recapture by the state.
Ch. 485, Laws of 1927, purported to establish a "dock line." Sec. 30.02(1), Stats., authorizes municipalities to establish dock lines. In 1927, the existing form of this section did not prescribe the effect of such dock lines but ever since the enactment of ch. 455, Laws of 1933, it has been clear that dock lines established under sec. 30.02(1) were a limitation upon the right of a riparian owner to extend a wharf or pier into navigable water. By enactment of ch. 301, Laws of 1931, the legislature made it clear that the dock line it had established in 1927 was not to affect rights of riparian owners. Ch. 301 stated that the 1927 dock line should not supersede dock lines established by the city of Madison in so far as riparian owners are concerned and that the 1927 dock line should in nowise be construed as being for the benefit of riparian owners. It was made plain in 1931 that the establishment of the dock line in 1927 was to be construed as a grant of authority to the city within the area between the shore and the dock line.
The authority granted is "to construct and maintain on, in, or over said Lake Monona . . . parks, playgrounds, bathing beaches, municipal boathouses, piers, wharves, public buildings, highways, streets, pleasure drives, and boulevards." The state asserts that by the doctrine of noscitur a sociis the extent of the meaning of the term "public buildings" must be determined from the words with which it is associated. The state suggests that the other enumerated uses are all related in some degree to the improvement of the use and enjoyment of Lake Monona and that therefore only those public buildings which are related to such improvement of use and enjoyment are authorized.
That the proposed auditorium and civic center is a public building in the broadest sense of the term, is of course, obvious. A municipal office building, fire or police station would also be a public building in the broad sense of the term and might be quite unrelated to the use and enjoyment of the lake. It is unnecessary to decide at this time whether buildings of such purely administrative character could properly be placed on the lake bed by the city and we do not construe the judgment of the circuit court as so deciding. We are of the opinion that a building of the type generally described in the findings of the circuit court is not so unrelated to the use and enjoyment of the lake as to be outside the scope of the term "public buildings" as used in the list of purposes in ch. 301, Laws of 1931. Enjoyment of scenic beauty has been recognized as one of the public rights in navigable waters. Muench v. Public Service Comm. (1952), 261 Wis. 492, 515g, 53 N.W.2d 514, 55 N.W.2d 40. The erection of a substantial public building in the proposed area may reasonably be expected to improve the appeal of the particular area when viewed from the lake considering the comparatively steep grade and the presence of the railroad tracks at its foot described in the findings. The purposes of the proposed building are in large part recreational and it can reasonably be expected that the building will attract to the site large numbers of people both from Madison and elsewhere who would not otherwise come, and provide a vantage point from which these people may enjoy the natural beauty of Lake Monona. Although one can draw a minor line of distinction between the opportunities for outdoor recreation provided by parks and pleasure drives on the one hand, and the opportunities for indoor recreation afforded by an auditorium, art gallery, and the like, the enjoyment of both types of facilities is enhanced by a naturally beautiful setting. We see no conflict between the purposes for which the proposed building will be used and the purposes of the other facilities enumerated which would be a basis for concluding that the proposed building was not authorized.
We note that in at least two sessions the attention of the legislature has been drawn to the question of the authority of the city to carry out its plans. In 1955, the legislature gave consent to the commencement of this action. It did not then enact any law limiting the authority of the city. The matter is before the current session of the legislature. Bill No. 300, A., prescribing a limitation upon the height of any building erected in this area, has been passed by the assembly and is now under consideration in the senate. No limit of size or cost of a building is expressed in ch. 301, Laws of 1931.
Except for the fact that we are dealing with a recreational building instead of a park area, much of what was said in State v. Public Service Comm. (1957), 275 Wis. 112, 81 N.W.2d 71, is applicable here to the constitutional issues asserted by the state. A public body will control the use of the proposed building; it will be devoted to public purposes and open to the public; the diminution of lake area will be very small when compared with the whole of Lake Monona; no one of the public uses of the lake as a lake will be destroyed or greatly impaired; the disappointment of those members of the public who may desire to boat, fish, or swim in the area to be filled is negligible when compared with the greater convenience to be afforded those members of the public who will use the building. As pointed out with reference to the park involved in the case cited, the purpose to be served is not local in any sense which would involve an improper use of state property; the authority granted to Madison is merely revocable permission to use the property, is not a grant of title, and no consideration need be exacted from the city.
The state questions the authority of the city to use tax money to build the proposed building in view of the fact that the state would have the power to revoke the permit given the city. The expenditure of tax money, however, would be a necessary incident of any filling or construction within the area described and must have been contemplated by the legislature when the authority was given.
The establishment by the city of a shore line in 1937, 100 feet out into the lake and its establishment of a shore line in 1945 which coincides with the dock line established by the legislature in 1927 were both approved by the public service commission under general statutes. No direct challenge has been made in this case to the propriety of those shore lines although the statute requires a shore line to conform as nearly as practicable to existing shores. We do not believe that it is necessary to determine the legal effect of these actions by the city because in our opinion the authority of the city to proceed with its building is sufficiently determined by the acts of 1927 and 1931 referred to.
The state challenges a finding by the court that the city is the owner of riparian rights in the area involved. We do not deem a finding as to ownership of riparian rights necessary in this action. Upon this point the record would sustain a finding that whatever rights the original owners of block 87 had with respect to the area which the city is filling, were conveyed to the Milwaukee Road; whatever rights the Milwaukee Road had with respect to said area were subsequently conveyed to the North Western Railway; whatever rights the North Western Railway had with respect to said area were conveyed to the city. The record suggests that the state itself is the owner of block 86, and blocks 86 and 87 are the only two involved. The history of the construction of the railroad tracks and the conveyances to the railroads in the same general area is reviewed in Attorney General ex rel. Askew v. Smith (1901), 109 Wis. 532, 85 N.W. 512.
By the Court. — Judgment affirmed.