Yates v. Milwaukee
APPEAL from the Circuit Court, District of Wisconsin. The case was this:
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 centre of the Milwaukee River, to one Yates, with the right and privilege of docking, dredging out, and making a water front 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 31st, 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 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.
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 v. Yates, in the Supreme Court of Wisconsin,  that some time 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;  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 defence 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, say:
'High ways 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 the decision referred to, dismissed the bill. The complainant appealed.
Mr. Carpenter, for the appellant:
The law is settled in Wisconsin, by Walker v. Shepardson,  that the owner of land bordering upon a fresh-water stream, above the ebb and flow of the tide, owns to the centre of the stream, subject to the right of the public to use the same as a highway where it is navigable in fact.
But conceding that as matter of fact this wharf is an obstruction of navigation, still this decree should be reversed, and the injunction prayed for by the bill should be granted. It is now fully established,  that if there be a nuisance in a public highway, a private individual cannot of his own authority abate it unless it does him a special injury, and can only interfere with it so far as is necessary to exercise his right of passing along the highway.
The legislature did not mean to give the city the power which it attempts to exercise; and if it did mean to do so, it had no power to give it. The city may by 'ordinance,' establish dock lines, &c. They may pass an ordinance, with penalty for disobedience, and if not obeyed they can bring an action to collect the penalty. The validity of the ordinance can then be tested. But they cannot, by an ordinance, employ a man to demolish a dwelling-house alleged by them to encroach on the highway. That would not be an ordinance, or law, or rule of action. In other words, they may pass a law to provide for the punishment of any man who does obstruct a highway, but they can't pass an ordinance declaring that A.'s wharf does this; that would be an exercise of judicial power.
Mr. Ryan, contra:
1. The locus in quo is a public highway.
The Milwaukee River is a navigable stream, and as such is a 'public highway, forever free.'  Many public acts of the territory and State of Wisconsin, and of the United States recognize it as a navigable stream. It was meandered as such by the Federal government. Acts of the State and Territory authorize bridges over it, and provide for draws therein for the passage of vessels.
Being a highway, it is such in its whole width, from bank to bank, although some portions are too shallow for some uses; just as a street is none the less a highway because it is not worked and fit for use in its whole width. Riparian owners hold but to the edge, not ad medium filum. 
The premises in question are made a public highway by water by dedication of the owners of the fee and acceptance by the public. By the plat made by the proprietors, the streets, alleys, and rivers, as designated thereon, were dedicated to the public use. In Yates v. Judd, Yates asserted the same right, to the same premises, in an action in the State courts of Wisconsin. The decision of that case establishes the law of Wisconsin on the questions necessarily involved in the present suit. It disposes of all the merits of the complainant's case; and binds this court under its own rule of decision to recognize the adjudication of the highest State courts on matters concerning State laws. Walker v. Shepardson, relied upon by Mr. Carpenter, must be read by its light.
2. It is said that they city had no power to remove the obstruction. The city, by its charter, has charge of all the public highways within its corporate limits, and has a special duty to keep the river dredged to a sufficient depth. It has established a wharf and dock line under the authority of the statute of 1854. Yates's wharf comes beyond it. It is therefore difficult to see the force of the opposing argument. This point also is settled by Yates v. Judd.
Reply: The decision in Yates v. Judd, is not upon the construction of any statute or constitutional provision of the State, but upon a principle of the common law. Such a decision this court is not bound to follow.
Moreover, the decision is not sound in doctrine, and ought not to be followed. It is erroneous in holding that by the platting of the land upon the bank of the river, and representing the river as it existed in nature, the proprietors intended to, or in law did, part with their rights as riparian owners. No authority is cited, no reason given, for this view; none can be. The distinction between land and water is founded in nature. When a proprietor makes a plat, and lays out a street on his own land, it is fair to say that he intended to establish a highway of the precise dimensions indicated by his plat; for the reason that it was made a highway only by his act, and that if he had not intended to make it a highway to the extent indicated, he would not have so indicated it. But Milwaukee River does not owe its existence, capacity, or limits, to any proprietor or plat. The sensible doctrine is that which everybody knows corresponds with the fact, that in platting land bordering upon a river the owner intends to mark only the line of separation, as it exists in fact between land and water, without intending to indicate where the navigable channel is at present, or to predict where it will be in the future; and that, as a riparian proprietor, he intends to retain the right to reach the navigable channel of the river, wherever it is or may be, with piers and wharves.
Mr. Justice MILLER delivered the opinion of the court.
^1 18 Wisconsin, 118.
^2 The star on the diagram on p. 499, represents apparently this spot.
^3 4 Wisconsin, 486.
^4 Bridge v. Railroad, 3 Meeson & Welsby, 244; Davies v. Mann, 10 Id. 546; Mayor of Colchester v. Brooke, 7 Q. B. 339; Dimes v. Petley, 15 Adolphus & Ellis, N. S. 276; Harrower v. Ritson, 37 Barbour, 301.
^5 Ordinance of 1787; Const., Art. IX, sec. 1.
^6 Keen v. Stetson, 5 Pickering, 494; Stetson v. Faxon, 19 Id. 147; Lansing v. Smith, 4 Wendell, 21; Commissioners v. Long, 1 Parsons, 143.