DAVID JONES, Plaintiff in Error, vs. SYLVESTER PETTIBONE and STEPHEN HUBBELL, Defendants in Error, 2 Wis. 308

By the Court, Whiton, C. J. The bill of exceptions in this case shows that various exceptions were taken to the ruling of the judge at the trial, in regard to the admissibility of testimony, and in regard to his instructions to the jury. It appears that one George Lurwick and his associates were authorized by

an act of the legislature to build a dam across the Oconto river, at the place where the one owned by the plaintiffs in error is situated. The act was passed bn the 16th of February, A. I). 1842, and authorizes Lurwick and his associates to build a dam across the river on lots six and seven,'

section twenty-four, in township twenty-eight, range twenty-one east, “ on lands owned by himself or his associates, sufficient to make and .create a head of seven feet.” It appears that the plaintiff in error introduced testimony to prove that he was the owner of the lots in question, (having obtained them by purchase,) and claimed the right to keep up the dam by virtue of the act.

The plaintiff in error assigns the following errors : 1st. “ The court erred in allowing the plaintiff below to give in evidence copies of maps of town 28, of ranges 21 and 22, to show that the Oconto river wag a meandered stream.” 2d.

The court erred in charging the jury that the said several matters produced and given in evidence on the part of the defendant below, were not sufficient, and ought not to be' admitted and allowed as decisive evidence to entitle the said defendant to a verdict, and to bar the said plaintiffs below in their action.” 3d. “ The court erred in charging the jury that if the Oconto river was meandered by the United States surveyors, and was so returned, those acts were equivalent to returning it navigable, and our statute declares it a navigable river, and the statute is conclusive upon its navigability; it cannot be controverted by the defendant.” 4th. “The court erred in charging the jury that whatever rights were secured to George Lurwick, he could alien, but such purchase was a distinct piece of property, and would pass to the assignee thereof, and not to the assignee of the land, as appurtenant thereto.” 5th. “ The court erred in charging the jury that ‘ George Lurwick took only an estate for life in the franchise granted under the act of 1842, and that the estate terminated at his decease.’” 6th. “ The court erred in charging the jury that‘ if the stream was meandered, purchasers on its banks were limited by the line on the river as much as that in the rear.’ ” 7 th. “ The court erred in charging the jury, ‘If you find for the plaintiff, you will give Mm interest on the amount from January 12, 1852.’” 8th. “The court erred in refusing to charge the jury as asked hy the defendant’s counsel, ‘That if the jury do not find that the Oconto river was meandered and returned as navigable by the surveyors of the United States, the plaintiff cannot recover.’ ” 9th. “The court erred in refusing to charge the jury as asked by defendant’s counsel, ‘That if the jury do find that the defendant was the owner of lots 6 and 7, in

section 24, town 28, range 21 east, then the land under the river belonged to him.’” Very few of the matters assigned for error were at all discussed at the argument, and we shall not express any opinion in relation to some of them, confining our attention to those which have the most important bearing upon the case. We think the court erred in the instructions which it gave to the jury in relation to the effect of meandering the stream by the United States surveyors, and which are set out in the third assignment of error.

The statute alluded to (Rev, 8tat.oh. 34, sec. 1) in the charge of the judge, is as follows : “ All rivers and streams of water in this State, in all places where they have been meandered, and returned as navigable by the surveyors employed by the United States Government, are hereby declared navigable to such an extent that no dam, bridge, or other obstruction may be made in or over the same, without permission of the legislature.” Without deciding whether a stream which is meandered by the surveyors, must also be regarded as returned “navigable” by them, we think the act of the legislature in question does not warrant the con-gtmction placed upon it by the judge.

The act does provide that streams of this description shall be regarded as navigable in fact, so as to dispense with P1’00^ °f their navigability, when that fact is to be established, but only that they shall be regarded as navigable to such an' extent that no obstruction shall be placed in them without permission of the legislar ture. In other words, the act prohibits the placing of obstructions in such streams without permission of the legislature;' but it does no more. We also think that the judge erred in the instructions which he gave to the jury, as set out in the fourth assignment of errors.

The substance of his instructions upon this subject was, that the right of Lurwick and his associates to build and maintain the dam would not pass to the grantee of the land, as appurtenant to it, but was separate and distinct property. It is apparent from the phraseology of the act, that the legislature did not intend to grant to Lurwick and his associates the right to build the dam upon land owned by other persons.

On the contrary, the right to build it on lots 6 and 7 was conferred upon the persons named in the act, upon the supposition that they, or some one or more of them, owned the land; the words, “on lands, owned by him or his associates,” which follow the grant of the right to build on lots 6 and 7, qualify the right so as to make it essential that Lur-wick or his associates should own the lots in question in order to make the grant operative. The correctness of this view of the question is made more apparent by a reference to the third

section of the act, which provides “that the general law, approved January 13th, 1840, relating to mills and mill-dams, shall be, and hereby is, declared to be applicable to any dam which may be constructed by virtue of this act.” The act of 1840 referred to, while it authorizes, certain conditions, the flowing of lands not belonging to the persons who caused the flowing, did not authorize the erection of dams without permission, upon any land not owned by the persons erecting them. Sess. Laws 1840, y. 65, sec. 2.

It seems quite clear, then, that the right granted to Lurwick and his associates, was the right or power to erect the dam on lots 6 and. 7, as the owners of the lots. It was not a personal privilege, but was a right which was conferred upon them as the proprietors of the land, and because appendant or appurtenant to the land. Co. Litt. 121, b.; 1 Vent. 386; 4 Kent's Comm. 467.

We are also of opinion that the court erred in charging the jury that Lurwick took only an estate for life, in the franchise granted .by the act of 1842, and that it terminated at his decease, as is set forth in the fifth assignment of error. We do not see how the grant could terminate with the death of Lurwick, as there is nothing in the act to indicate that the right was to continue only for the joint lives of himself and his associates, which must be the case, if the right to keep up the dam terminated with his life.

The grant was to him and his associates, and if his death would terminate it, so also would the death of either of the associates. We also think that the court erred in charging the jury, that if the stream was meandered, purchasers on its banks were bounded by the line run along the bank, as set forth in the sixth assignment of error.

The general doctrine, that purchasers of lands lying on the banks of a stream, above the ebb and flow of w^en bounded "by the stream, take to its center or thread, cannot "be disputed; but in this case it may "be contended that, "by the manner in which land is surveyed and sold by the United States, the purchaser does not purchase to the stream in fact, and is not bounded Tby it, but that he is bounded by the line run along the margin of the river, called the meandered line. But this line is not the boundary of the lot, and is run merely to determine the quantity of land contained in it.

We are of opinion, therefore, that the lots extended to the stream, and of course to its center. Middleton vs. Pritchard et al., 3 Scamm. P. 510; Canal Trustees vs. Haven, 5 Gill. R. 548. We are also of opinion that the court erred in refusing to charge the jury, when requested by the defendant’s counsel, that if they found that lots 6 and 7 belonged to the defendants, then the land under the river belonged to them.

These lots, being situated opposite each other, on opposite sides of the Ocon-to river, it would seem to follow, from our opinion upon the matters assigned for error in the sixth assignment of errors, that the instruction asked for should have been given. • The doctrine we suppose to be well established, that persons who are bounded by the center or thread of the stream, own the land under the stream, to their bonndary. If the stream is navigable in fact, the public have tne right to use it for the purposes of navigation, and the right of the owner .is subject to the public easement.

But, with this exception, the right of the owner to use the land as he pleases, is perfect. We have intentionally omitted to express any opinion upon many of the questions presented by the record, for the reason that they were not discussed at the argument of the case. We regret that the counsel for the defendants in error did not participate in the discussion. For the reasons above given, the judgment must be reversed, and a new trial ordered.