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119 Wis. 159

McCarthy v. Murphy

Wisconsin Supreme Court

Decided September 29, 1903

Wisconsin Supreme Court · decided 1903-09-29

Dick, Circuit Judge. An action to recover damages from respondents for removing a pier, which appellant had erected on the lied of Eox Lake, Dodge county. The respondents were lessees of a tract of land on Eox Lake, a navigable body of water. The land was owned by one Elias Kennedy, who leased it to respondents April 23, 1902, for one year, with the privilege of extension at the option of the lessees.

Key passage — most relied on by later courts

“`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 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.' . . .”

quoted by 1 later decision, including 796 So. 2d 322 - Cove Properties, Inc. v. Walter Trent Marina, Inc.

Relies on Yates v. Milwaukee · Diedrich v. Northwestern Union Railway Co. · Priewe v. Wisconsin State Land & Improvement Co.

Cited in Black's (1910)’s definition of “Riparian”

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1903-09-29

How this case has been cited

Cited by 5 later decisions — most recently April 1999

5 state decisions

201903191019201930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Siebecebe, J.

¶1Many of the errors assigned pertain to questions of fact. Upon an examination of the evidence, we find there was conflicting evidence on material issues, and that the conclusions of the court were supported by evidence. It would serve no useful purpose to point out such evidence in the record; the conclusions of fact must stand.

¶2The claim is made that respondents had no rights or privileges, extendingbeyond the high-water mark on the land occupied by them, different from and in addition to those of the public. This contention is without merit in the law of this state. It has been adjudged by this court as to the shore owner:

“As proprietor of the adjoining land, and as connected with it, he has the right of exclusive access to and from the waters of the lake at that particular* place; he has the right to build piers and wharves in front of his land out to navigable waters, in aid of navigation, not interfering with the public use. These are private rights, incident to the ownership of the shore, which he possesses, distinct from the rest of the public. .All the facilities which the location of his land with reference to the lake affords he has the right to enjoy for purposes of gain or pleasure; and they oftentimes give property thus situated its chief value. It is evident from the nature of the ease that these 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 such ownership they have their origin. They may *162and do exist, though, the fee in the bed of the river or lake be in the state.” Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Priewe v. Wis. State L. & I. Co. 93 Wis. 534, 67 N. W. 918, and cases cited.

¶3When such owner exercises'these rights, he cannot invade the riparian rights of other bank owners. As to them, he has the same rights as the public. An intrusion of another’s riparian rights is a legal wrong, which the law will redress. Nor can a stranger, by such intrusion on the bed of the water, acquire- any vested rights or interests as against the riparian oivners. Any structure erected by him, under such circumstances, is a private nuisance. The proprietor of such rights has the legal authority to protect them in a.lawful and peaceable manner, to the extent of removing a structure, such as a pier, erected on the bank and bed of the 'waters in front of his lands. Diedrich v. N. W. U. R. Co. 42 Wis. 248; Cohn v. Wausau B. Co. 47 Wis. 322, 2 N. W. 546; Yates v. Milwaukee, 10 Wall. 497.

¶4Appellant had acquired no right to maintain this pier at the point of its location by grant or license. It is assigned that the facts fail to support the conclusions of the trial court upon this issue. The evidence is conflicting whether -Kennedy,' the OAvner of the bank of the lake, at any time gave appellant a license to build the pier at the place located or not. The trial court found the fact against this contention, upon the disputed evidence, which sets the question at rest. When appellant erected and sought to maintain this pier, he did an injury to respondents, in the nature of a private nuisance, Avhich they had a right to remove, to prevent injury from its continuance. Cooley, Torts (2d ed.) p. 48; Larson v. Furlong, 50 Wis. 681, 8 N. W. 1.

¶5It is further contended that respondents, after removing the pier, appropriated the material to their OAvn use. Nothing is disclosed to justify this charge. TTpon the evidence adduced, the court found that respondents carefully removed *163the pier, placed the material upon the shore of the lake, and that appellant took possession of such material. There is evidence to sustain this conclusion. We find no error in the record.

¶6By the Court. — The judgment of the circuit court is affirmed.

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