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Water Rights/Case Library

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Diana Shooting Club v. Husting, 156 Wis. 261 (1914)

Why this matters: A duck hunter won the right to hunt on water flowing over someone else’s land, and Wisconsin got the broadest public water rights in the country. If you buy Wisconsin waterfront, this case defines who else gets to be on your water. Read it before you imagine a private lake.

Doctrine: Public trustpublic trust doctrineThe state holds navigable waters and the land beneath them for everyone, and cannot sign that away. Wisconsin's version is written into the state constitution and is among the strongest in the country., navigabilitynavigable in factWisconsin's test for whether a waterway is public. Roughly: can a small recreational boat float on it on a regularly recurring basis. A lot of modest creeks qualify.

Case name and citation

Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914).

Court and year

Supreme Court of Wisconsin. Decided 1914.

One-line holding

The public may hunt and fish on navigablenavigable in factWisconsin's test for whether a waterway is public. Roughly: can a small recreational boat float on it on a regularly recurring basis. A lot of modest creeks qualify. water between the ordinary high water marksordinary high water markThe physical line on a shoreline showing where water regularly reaches. On a Wisconsin lake your private property stops there and the state owns the bed below it. The DNR decides where the line is, not your deed. even where a private party owns the land beneath, because hunting and fishing are incidents of the right of navigation.

Facts

The Diana Shooting Club owned a full section of land in the town of Williamstown, Dodge County, and claimed the exclusive right to hunt and shoot on it.

On September 24, 1911, Husting hunted there. He had a valid state license and he stayed on the water.

The club sued him for trespass, claiming $50 in damage to grass, rushes, wild rice, and herbage, and interference with its exclusive hunting privileges.

Husting’s answer was that he never touched the club’s land. He hunted only on the public navigable waters of the state, which happened to run across it.

The trial court found for Husting, holding the club had no vested right to exclude the public from that place.

Where title to the land under navigable water is privately held, does the public retain a right to hunt on that water?

Holding and reasoning

The Wisconsin Supreme Court affirmed. Husting won.

At common law, hunting and fishing were incidents of the right of navigation. England limited navigable waters to those where the tide ebbed and flowed, and the court noted that this limitation “has never obtained in the United States.”

Wisconsin’s test is navigability in fact. A stream capable of floating products of the forest, field, or commerce for regularly recurring annual periods is navigable. Later cases distilled this to a memorable line: any stream capable of floating any boat, skiff, or canoe of the shallowest draft used for recreational purposes.

The court then fixed the geographic limit. Hunting is lawful when confined strictly to navigable water in a navigable stage, between the boundaries of the ordinary high water marksordinary high water markThe physical line on a shoreline showing where water regularly reaches. On a Wisconsin lake your private property stops there and the state owns the bed below it. The DNR decides where the line is, not your deed.. Within those limits the character of the water doesn’t matter: “It may be deep or shallow, clear or covered with aquatic vegetation.”

It defined the ordinary high water mark as the point on the bank up to which the water’s presence and action is so continuous as to leave a distinct mark, through erosion, destruction of terrestrial vegetation, or some other recognizable characteristic.

The passage that Wisconsin courts have quoted for 112 years: the policy preserving public waters “should be interpreted in the broad and beneficent spirit that gave rise to it,” and navigable waters “should be free to all for commerce, for travel, for recreation, and also for hunting and fishing.”

Why it matters

This is the case that made Wisconsin’s public trust doctrinepublic trust doctrineThe state holds navigable waters and the land beneath them for everyone, and cannot sign that away. Wisconsin's version is written into the state constitution and is among the strongest in the country. unusually generous, and it did it by treating recreation as a legitimate public use of water rather than a lesser one.

Two moves did the work. Navigability in fact, measured by a canoe rather than by commerce, sweeps in an enormous number of Wisconsin waters. And public rights extend to hunting, fishing, swimming, boating, and later scenic beauty, not just to passage.

Put them together and a modest creek across your property can carry public rights.

The “shallowest draft canoe” standard is why Wisconsin navigability determinations surprise people. A channel you would describe as a ditch may be navigable in law.

What it means for a landowner today

This is the most directly practical case in this library for a Wisconsin buyer.

If water on or bordering a parcel is navigable in fact, then:

  • The public may boat, fish, hunt, swim, and wade on it, between the ordinary high water marks, regardless of who owns the bed.
  • Your ownership below the ordinary high water mark on a navigable lake is generally nonexistent. The state holds that bed in trust.
  • On a navigable stream you may own the bed, and the public still has rights on the water above it.
  • Shoreland zoningshoreland zoningCounty rules controlling what you can build within 1,000 feet of a lake or 300 feet of a river. They set your setbacks, your buffer, and how much of the lot you can pave., pier permits, dredging, and shoreline alteration are all regulated on top of this.

What to verify before closing:

  • Has the DNR made a navigability determination for every water body on or touching the parcel? If not, assume the broad standard applies.
  • Where is the ordinary high water mark, and does the seller’s understanding of the boundary match it?
  • Is there a public access point upstream or downstream that makes public use realistic?

Who verifies: the Wisconsin DNR for navigability and permits, a surveyor for the ordinary high water mark, and a Wisconsin real estate attorney for title and riparianriparianThe eastern US rule, and Wisconsin's rule. If your land touches a lake or stream, you get reasonable use of that water, shared with everyone else whose land touches it. The rights come with the land and generally cannot be sold separately from it. boundary questions.

Never assume a listing’s description of “private frontage” survives contact with this doctrine.

Subsequent history / is it still good law

Good law as of July 2026 and heavily relied on. The Wisconsin Supreme Court quoted it approvingly in Lake Beulah Management District v. DNR, 2011 WI 54, and again in Rock-Koshkonong Lake District v. DNR, 2013 WI 74.

Rock-Koshkonong is the important qualifier. It confirmed the breadth of the trust within navigable waters and held that public trust jurisdiction stops at the ordinary high water mark, so it does not reach non-navigable land or non-navigable wetlands above that line. See 2013-rock-koshkonong.md.

Muench v. Public Service Commission (1952) extended protected public interests to natural scenic beauty. See 1952-muench-v-public-service-commission.md.

Sources

Research demo, not legal advice. Facts current as of July 2026. Water law is state-specific and moves quickly, so confirm anything you plan to act on with a licensed attorney and the relevant state agency.