I concur with the decision of the court, but regard the opinion of the chief justice as being so framed as to lead to the belief that the common right of fishing in navigable streams in this state is a mere incident to the right of navigation, and that defendant is not liable because he was navigating the stream in a boat at the time of the act complained of; in short, that he was where he had a right to be in the exercise of the right of navigation, and there*104fore that he was not a trespasser upon the plaintiff’s lands. In my judgment the right of fishing in navigable waters is common to all, and exercisable, so far as it can be done without trespass on the banks thereof, whether the person exercising such right be at the time navigating the stream in a boat or otherwise floating upon the surface of the water, or traveling upon the bed in the shallows, or anywhere in any manner, between the lines of ordinary high-water mark. That is, that the common-law doctrine of navigable waters, with all the incidents and characteristics of such waters, has been extended to include all streams navigable in fact, through the location of the title to the beds of such streams in the state originally for that very purpose, and that though such title, by force of state policy, has passed from it to private ownership, such ownership is of such a qualified character as not to in any way interfere with the character of the streams as public waters; not public in the sense of such rivers as at common law were merely subject to the right of passage, but public by the common-law test of navigability. A right of passage exists at common law in many rivers, and they are yet, for all other purposes, private. So, it does not squarely meet the question here, to say that there is a common right of fishing because of a common right of navigation; for while the former cannot exist without the latter, the latter can without the former. That is, by the rules of the common law, one is not necessarily incident to the other. Rivers navigable in fact, though not tidal, are private except subject to the right of passage. Said the court in Adams v. Pease, 2 Conn. 481: “ As far as the tide ebbs and flows a river is public, both as to the right of fishing and navigation; above its tidal character it is private, except so far as it is navigable in fact, and to that extent it is public for that purpose only.” Said Spencer, C. J., in Hooker v. Cummings, 20 Johns. 90: “The common law considered a stream where the tide ebbs and flows as naviga*105ble, and devoted to the public for all purposes, as well for navigation as for fishing; and other streams as navigable, but not so far belonging to the public as to divest the owners of the adjacent banks of the exclusive right of fishing therein.”
So it will be clearly seen that to merely hold that the bed of a stream navigable in fact is subject to the easement of the public for that purpose, does not sustain the common right of fishing therein. Either a stream navigable in fact is public for all purposes, the same as tidal waters at common law, or the common right of fishing therein does not exist. Obviously, if the mere right of passage exists, it would no more follow that a person can stop by the way and fish or hunt, than that he can stop by the road side on a public highway and cut grass or wood, or do anything else not incident to the right of traveling thereon. That point has been many times decided, which is sufficiently shown by cases cited in the briefs of counsel in this case, notably that of Sterling v. Jackson, 69 Mich. 488, where the claim was that defendant was not liable as a trespasser while in a boat shooting wild fowls, though the land submerged by the water on which his boat rested belonged to the plaintiff, because it was navigable water. In regard to such contention the court said, in substance, defendant had no right to be there except for the purpose of navigating the water over the land; when he stopped for any other purpose, as to-shoot ducks, he abused his privilege and became a trespasser. Several cases are cited by the Michigan court, sustaining the position that the mere fact that a person is where he has a right to be on a navigable stream, if exercising the right of navigation, does not protect him if he does anything not incident to that right.
The foregoing makes it quite clear, in my judgment, that the right of public fishing cannot be sustained as a mere incident to the right of navigation, and that the opinion of the *106chief justice hardly goes far enough to bring out clearly the true character of navigable streams in this state as public waters.
It would be uninteresting, after all the chief justice has said, to go over at length the history of the common-law doctrine as to public and private streams, the location of the title to the beds of such streams, the reason therefor, to what extent such doctrine has been adopted in this country, and the peculiar reasons for the divergence of opinions of, and apparent conflicts between, different courts, so I shall content myself with general statements and few references to authorities, leading up to the conclusion that all navigable streams of this state were designed originally to be public for all purposes, and that their character in that regard has not changed, notwithstanding the state has, for some purposes, parted with the title which was vested in it, in its sovereign capacity, in trust for the preservation and protection of public interests. If the state had not surrendered any of its interests in such lands, but kept the same till the present time, solely for the use for which the same came to it at its organization, the question we now have before us would never have arisen. It would then be conceded without question, by all, that the title to lands under all navigable water within the boundaries of the state is in the state, and such waters public in the same degree as waters navigable at common law by the test of tidal character.
All the trouble and confusion regarding the public right of fishing in navigable streams has grown out of the fact that the title to the beds of such streams has been so generally declared, without qualifying words, to be in the riparian owner, that the real origin thereof, and the real nature of the private ownership, have come to be overlooked, and a mere qualified private title, consistent with the trustee capacity of the state for the public purposes of navigation and fishing, to be looked upon as an absolute title resting on, or *107having all the qualities of, an absolute grant, or at least a grant subject to the right of passage, a title such as the riparian proprietor possessed on a private stream at common law, and such as is held by riparian proprietors on freshwater streams in New Hampshire, New Jersey, and most of the original thirteen states of the Union, where, as said by the chief justice, the common law, with some exceptions, prevails.
It is conceded that by the English rule the title of riparian proprietors on navigable streams extends only to ordinary high-water mark; that the title below that line is in the sovereign in trust for the benefit of the public; that as to land bordering on other streams the title extends to the thread thereof; and that navigable streams are only such as are affected by the tides without reference to navigability in fact. An examination of the subject under discussion will show that, whatever changes have taken place in regard to public waters, the principle has been uniformly maintained that, where the absolute ownership of the beds of navigable streams is private, such streams are held not to be public for any purpose; and so far as streams which, by the rules of the common law, were private are now deemed to be public, the title to their beds is in the state, or subject to that use, in harmony with the public rights, the same as at common law. The fiction of navigability tested by the tidal character of water has been rejected, and the test of navigability in fact substituted in place of it, only in harmony with the status of the title to the beds of the streams. In most of the original states the grants to private persons covered the beds of fresh-water streams, so the common-law doctrine almost necessarily prevailed there from the start. In New York, the court, in Hooker v. Cummings, 20 Johns. 90, held that the original grants on fresh-water streams conveyed to private owners the lands between the margins, with the exclusive right of fishing. That is quoted from extensively *108by appellant, as supporting the private character of the stream in question, overlooking the fact that it rests wholly on the mistaken theory that the original grants to private persons conveyed the submerged land, which was overruled later, and which is not true as to such lands in this state, as will be hereafter seen. In People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461, the court reviewed all the cases on the subject previously decided in that state, and reached the conclusion that streams navigable in fact were navigable in law, with all the common-law incidents thereof, and that the private ownership of lands on such streams stopped at ordinary high-water mark. In reference to Hooker v. Cummings, supra, the court said, in substance, that the court rendering the decision held that he who owns the soil of a fresh-water stream has prima faoie the exclusive right of fishing, entirely ignoring the fact of navigability or non-navigability, and that, with great respect for the high source from which that decision emanated, it was not sustained by principle or authority. The court said further, in effect, that the title to the beds of navigable streams, using the term “ navigable ” in the sense of navigable in fact, was originally vested in the state, and that the state had never parted with such ownership, thus harmonizing the title with the public character of the streams as at common law. In Pennsylvania, the same rule prevails, and upon the same ground, namely, that the title to the beds of all the principal rivers is vested in the state (Carson v. Blazer, 2 Bin. 475; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 71); and the same is true in North Carolina (State v. Pool, 74 N. C. 402); also other states (Home v. Richards, 4 Call, 441; Haight v. Keokuk, 4 Iowa, 199; Wood v. Fowler, 26 Kan. 682). This court in Ne-pee-nauk Club v. Wilson, 96 Wis. 290, very recently held that the right of fishing must be in harmony with the ownership of the land under' the water.
Without going further into the subject just discussed, it *109must be conceded that the absolute private ownership of the bed of a navigable stream is inconsistent with its being public for any purpose; that if such be the nature of the riparian proprietor’s title, or if it be subject only to the easement of navigation, then the exclusive right of fishing goes with such ownership. So, if the situation of the title to lands adjacent to navigable streams is stated with strict accuracy in Jones v. Pettibone, 2 Wis. 308, to the effect that it extends to the thread of the stream, subject to the right of navigation, which statement has often been referred to and may be said to form the foundation of the doctrine that the state has parted with the title it formerly possessed to the beds of such streams, then they are private for the purpose of fishing. In my judgment, the condition of the title was not there stated with strict accuracy. An examination of the opinion shows that the title, as to whether absolute or qualified, and if qualified, to what extent, was not before the court, and the fact herein shown, that the title to the beds of navigable streams in all the Northwestern Territory was reserved for public purposes, and, in that portion within the boundaries of this state, vested in it at its organization for such purposes, was entirely overlooked. The observation was made, as in the decision in Hooker v. Cummings, 20 Johns. 90, by applying common-law principles as if the title to the beds of navigable streams were vested in the private owners of the banks by purchase and grant, as in case of fresh-water streams at common law.
From the foregoing it follows that the real nature of the riparian proprietor’s title is the true test of the character of a navigable stream as public or private. If private ownership to any extent exists, it did not proceed from the United States under its patents. That has long been firmly settled. In Barney v. Keokuk, 94 U. S. 324, the court said that the beds of all streams navigable in fact vested in the new states upon their organization, and that if they chose to surrender *110to riparian, proprietors rights which properly belonged to them in their sovereign capacity, it is not for others to raise objections. In Railroad Co. v. Schurmeir, 7 Wall. 272, it is said, in effect, that the right of the public in all rivers navigable in fact, and the title to lands under them, is the same as in respect to streams navigable by the common law; that the title to lands bordering on such streams, derived from the United States under its patents, goes only to the margin, because the title beyond that point was reserved to the state and vested in it when admitted into the Union. Again, in Yates v. Milwaukee, 10 Wall. 504, the court said, in substance, that the private ownership of lands, formerly a part of the public domain, on navigable streams, stops at the margin thereof. Again, in Wright v. Day, 33 Wis. 260, this court, citing the federal case of Railroad Co. v. Schurmeir, supra, said that the purchaser from the United States takes title from it to the margin of the stream or water’s edge, and the unqualified title to the land above ordinary high-water mark. In Wis. River Imp. Co. v. Lyons, 30 Wis. 61, referring to Jones v. Pettibone, 2 Wis. 308, the court harmonized it with the fact that the government patent conveys only to the margin, by saying that the title beyond the margin, being subject to the public easement of navigation, the mere location of it was of very little importance, the idea being that the state, though conceding the title to the beds of navigable streams to the riparian proprietor, concedes only such qualified title as does not militate against the character of the stream as public. To the same effect, and more distinctly, is Norcross v. Griffiths, 65 Wis. 599, where Mr. Justice Tatloe, speaking for the court as to the extent of the original grantee’s title to the bed of a navigable stream by reason of purchase of the adjacent lands from the government, said that it was expressly decided in Railroad Co. v. Shurmeir, 7 Wall. 272, that the bed of a navigable stream is not conveyed by a patent of the United States *111of lands adjoining it. Further, it is said in the opinion, that by force of state policy the riparian owner is conclusively presumed to own to the thread of the stream. No qualifying words are used; nevertheless the court evidently did not intend to say that the title of the riparian proprietor, by mere implication of law, is an absolute title, for that would be inconsistent with the right of navigation, and inconsistent with what was said in Wis. River Imp. Co. v. Lyons, supra, to the effect that the title of the riparian proprietor is subject to the public right of navigation, and being so subject, it is really immaterial whether the title is in the state or in the riparian proprietor.
So we are safe in saying that the title to the beds of all navigable streams of this state passed to the state from the United States with all the incidents of public waters at common law, including the right of fishing as well as navigation. By what means has that title since changed, if at all, so far as the public is concerned ? It will not be claimed that the state has directly parted, or attempted to part, with its title, even if it could effectually do so. By what right, then, does the riparian proprietor claim title to the submerged lands under navigable streams, if not based on a direct grant from the general government or the state ? The answer, and only answer, is, by force of state policy so long declared by the court and submitted to as to become a rule of property which has worked a conveyance, so far as it reaches, as effectually and conclusively as if the title rested in grant. Such title proceeded from the state, however, by force of its policy, as a concession to the holder of the patent title, and became appurtenant thereto upon such title being conveyed by the government,— a concession not resting for its validity on any direct act of the state through its legislative body, but on mere state policy as declared by the court and acquiescence therein for so long a time that it cannot be changed without working great hardship. Therefore, it is said that the conduct *112of the state has created a rule of property which has all the effect of title by equitable estoppel. This court, in Olson v. Merrill, 42 Wis. 203, referring to the observation of the court by Mr. Justice Bradley in Barney v. Keokuk, 94 U. S. 324, to the effect that the rule adopted in some states, of conceding to riparian proprietors of navigable streams the title to the beds thereof, is at variance with sound principles of public policy, and expressing a doubt whether, as a rule of property, it would be safe to change the doctrine where long established, but that it was for the states themselves to decide whether they would surrender property rights belonging to them in their sovereign capacity, said, that left this state free to adhere to a policy which had been so long established that it would be mischievous to disturb it.
So the state now owns the beds of all navigable rivers between the lines of ordinary high-water mark on either shore, ©xcept in so far as the rule of property, established by state policy, has taken it away. If not taken away at all, no question as to the right of public fishing in such rivers would be raised, we may safely assume, as before stated. If not taken away, except subject to all the rights in common characteristic of public waters, then, as said by Dixon, C. J., in Wis. River Imp. Co. v. Lyons, 30 Wis. 61, it is quite immaterial whether the riparian owner’s title be considered to extend to the center of the stream or stop at the margin, for his situation, and that of the public, in such circumstances, would be the same as in case of the private ownership of lands in a public highway. While it is said that the title to such lands extends to the center of the highway, that does •notin any way interfere with the public use of the way, and so long as such public use is not interfered with, it is really immaterial where the legal title rests. It being understood all the time that the legal title is subject to the public use, its location with the adjacent owner, necessarily, is unimportant. So it may be said that the title of a riparian pro*113prietor, to lands bordering on á navigable stream, extends to the thread of the stream, perfectly consistent with the public character of the stream for navigation and fishing, if the title to the bed of the stream passed to such proprietor subject to such public use.
We have now reached in this discussion the point where it is necessary to determine the extent to which the state has surrendered its title to submerged lands originally vested in it, and at the threshold of that we should inquire as to the power of the state to surrender its trust. Obviously, the mere declaration of a fact by the courts, so long adhered to without challenge as to give it effect as a verity and a rule of property, can go no further than the state could go pursuant to legislative authority. That much would seem to be self-evident, and taking it as a correct statement of the law, several decisions of this court seem to have decisively settled the question to the effect that the beds of navigable waters, which were once vested in the state as a trust for public purposes, have not been, and could not be, parted with, except subject to that trust. In McLennan v. Prentice, 85 Wis. 427, this court said, on that subject, that the right which the state holds in these lands is in virtue of its sovereignty, and in trust for the public purposes of navigation and fishing, and it cannot abrogate its trust in relation to them. Again, in the very recent case of Priewe v. Wis. State L. & I. Co. 93 Wis. 534, the court laid down the same doctrine, quoting with approval from McLennan v. Prentice, supra, and said that any attempt by the state to convey absolutely lands submerged by navigable waters, so as to abrogate its trusteeship in respect to the same, would be void on its face, or subject to revocation; that if such were not the case the state might relinquish to private ownership its rights in all the numerous navigable lakes of the state. True, in both cases the court was speaking of the beds of lakes, but the title of the state to submerged lands under navigable waters, *114whether of lakes or rivers, came to it at the same time, subject to the same incidents, and for the same purposes, and must necessarily be governed by the same rules. It included the same ownership and dominion over all waters navigable in fact, and the lands under the same, which existed in sovereign power at common law. That has been so often decided by the highest courts of this country that it is needless to do more than to refer to it. If authority were wanting, the exhaustive opinion of Mr. Justice Field, in Ill. Cent. R. Co. v. Illinois, 146 U. S. 387, cited by this court in both of the cases above referred to, and by the chief justice here; leaves nothing further that need be said on the subject. It shows clearly that all lands under navigable waters, which, were formerly within the public domain, vested in the state for public purposes, and that the term “ navigable waters ” means waters navigable in fact; that to them, common-law principles relating to tidal waters, and the title to lands under the same, apply to the fullest extent. Justice Field did not announce any new doctrine, but only elaborated and made plain a very old one. In Barney v. Keokuk, 94 U. S. 324, the court said, in effect, referring to several previous decisions on the subject, that the Great Lakes, and other navigable waters of the country, above as well as below the flow of the tide, are in the strictest sense entitled to be denominated “navigable waters,” with all the characteristics of tidal waters at common law.
We might proceed at great length, citing decisions of other courts to show that the trust capacity of the state in respect to the beds of navigable waters cannot be surrendered, either directly or indirectly, but as we have shown that this court has twice spoken decisively on the subject, we may safely rest the matter there. The state may part with its title so far as the public interest is not interfered with, but no other disposition of it is valid. See, further, the following: 3 Kent, Comm. 427; Miller v. Mendenhall, 43 *115Minn. 95; Wilson v. Welch, 12 Oreg. 353; Pollard’s Lessee v. Hagan, 3 How. 212; Den v. Jersey Co. 15 How. 426; Weber v. Board of State Harbor Comm’rs, 18 Wall. 57.
Now we have seen that “navigable waters,” as tbe term is applied bere, includes all waters navigable in fact; that the title to all lands under such waters was vested in the state at the time of its organization, in trust to preserve the public character of such waters, and that such character is the same as that of waters navigable' at common law; that whatever of such title the state has parted with has been surrendered, not by grant, but by mere force of state policy so long adhered to as to have the effect, as a rule of property, of vesting title in the riparian proprietor by implication of law; but that the state never possessed power to emancipate itself, directly or indirectly, from its trusteeship in such lands, except subject to the public purposes for which it was clothed with the title thereto. So, without questioning the doctrine that the title to lands adjacent to navigable streams extends to the thread thereof, obviously, it is a qualified title, because the state could not part with any other; and there is no sound reason to sustain the contention that any further surrender has been heretofore declared or attempted. The very fact that the judicial history of the state shows that the doctrine that the title of a riparian proprietor on a navigable stream goes to the center of the stream has been no more rigidly adhered to than that such title is subject to the public right of navigation, and that there is no declaration by this court, that can be pointed to, showing that the character of such streams, for any of the purposes incident to public waters, has been affected by any abdication by, the state of its trusteeship for such purposes; and the further fact that from the earliest history of the state down to the present time the public right of fishing in such streams has been a subject of regulation by legislative enactment, is proof conclusive, *116that for all the purposes of the trust for which the lands under navigable waters were vested in the state, the title thereto is still subject; and that only for such private purposes as do not interfere with such public purposes, has the title been surrendered to the riparian proprietors. That gives full effect to the rule of property by which it is said the riparian proprietor takes to the thread of the stream, within the legitimate limits of such rule. All the supposed mischiefs that might flow from a change in the rule are thereby avoided; the rule is given the full effect that it can legitimately have, to the full extent and spirit of the meaning of the decisions of this court upon which it rests; and all public rights are at the same time fully preserved, notwithstanding doubts have been cast upon the subject from the frequent unqualified, unguarded statements that occur in numerous cases in respect to the title of lands adjacent to navigable waters extending to the thread of the stróam.
The foregoing doctrine, promulgated as the doctrine of this court and firmly adhered to, will, without injury to private rights and without overruling anything previously said by the court, enunciate clearly, and maintain consistently, the true doctrine that the waters of the state belong to the state, not for one public purpose only, but for all public purposes originally designed, and which should have been, and should be, most carefully guarded. It is open to serious doubt as to whether the surrender to private ownership of the property of the state in submerged lands, to any extent, was not a mistake. Certain it is that such title, in all territory out of which this and other northwestern states were carved, was vested in them in trust for public purposes of the highest importance, which have grown, and are likely to grow, as time continues. Probably, if such importance had been fully foreseen at the start, the state’s interests would have been more rigidly and jealously guarded, and private ownership not been allowed to invade at all, either the pub-*117lie title or the public use; certainly not, without consideration, by mere operation of state policy judicially declared. In Iowa, Kansas, California, and many other of the western states, as we have heretofore seen, the public title of the state to lands under navigable waters has been retained as it came to them, in trust, at the time of their organization. Said Brewer, J., in Wood v. Fowler, 26 Kan. 682, “ The generally accepted rule in this country is, to apply the term 'navigable ’ to all streams in fact navigable, and in such case to limit the title of the riparian owner to the bank of the stream, especially in the states where the lands have been conveyed and patented under the federal law.” That is upon the ground that the general government did not include in the public surveys the beds of such streams, for the very reason that the title thereto was reserved to the states for the public purposes of navigation and fishing. But, as said before, so long as the public character of the water of such streams is preserved, with all the incidents of the common rights of navigation and fishing, it is not very material as to where the legal title to the beds under them is located, any more than it is as to where the title to land included in a public highway is located, so long as the public use is not thereby impaired.
To recapitulate in closing, the title to the beds of all navigable waters in this state was in the state originally in trust for public purposes, the same as the beds of streams navigable at common law; the state not only never has, but never can, legally abdicate that trust, or surrender such title, except subject to all the public uses for which it was created; and while it is true that the title to the beds of such streams is in the adjoining landowners by implication of law, it is just as true that such title is subject to the public character of the waters, the same as if no surrender of title had ever taken place. The public right of navigation, and the public right of fishing, both exist in such streams, each independ*118ent of tbe other, with the right to make the usual use of the beds of such streams within the margins thereof, necessary to the full enjoyment of such public rights.