Falls Manufacturing Co. v. Oconto River Improvement Co.

58 N.W. 257, 87 Wis. 134, 1894 Wisc. LEXIS 160

Opinion

Cassoday, J.

This case comes before us upon the findings of the court, and so there is no dispute about the facts. The plaintiff’s mill dam and manufacturing plant were constructed under legislative authority, and are of great value. They are situated sixteen miles above the mouth of the river, and have always been used exclusively for manufacturing purposes. The statutes authorizing the same have at all times required the proprietor to maintain in the dam a chute or slide sufficient^ deep and wide to allow the passage of logs coming down the river. The same is true of other dams above and below the plaintiff’s dam, owned by those not parties to this action. One of such dams is situated six miles below the plaintiff’s, and has been used, in part, for flooding purposes to aid in driving logs on the river. In 3867 the legislature made it a criminal offense for any person, at any time or in any manner, negligently or with design, to put, or cause to be put, into the Oconto river in Oconto county, any refuse lumber, slabs,, sawdust, or other waste materials to an extent that should > materially hinder or obstruct navigation. Ch. 506, P. & L. Laws of 1867. Flat Rock dam is the principal structure of. the defendants, and is situated fourteen miles above the plaintiff’s dam. It was first constructed under ch. 363, P. & L. Laws of 1869, which authorized the defendant The Northwestern Improvement Company and its successors to improve the portions of the Oconto river and its branches and tributaries described, by blasting rooks, dredging, and ditching in the several channels within such limits, and by constructing dams, wing dams, booms, side booms, chutes, or slides, and by all other proper means for making the same navigable for the driving of sawlogs; and for that purpose the company was thereby expressly authorized to entirely close any slough, bayou, or channel so as to prevent the diversion of water from the channel so improved, and to charge and collect tolls for all logs or timber run through such improvements, at the rates therein specified. By the act of Congress of July 12, 1876, consent was expressly given to the defendant The Northwestern Improvement Company “to improve the Oconto river and its branches and tributaries, so as to run logs down said river and its branches and tributaries, across the Menomonee Indian reservation, in accordance with the laws of ” Wisconsin, subject to the conditions therein named. 19 Stats, at Large, 89,

On December 31, 1890, the defendant The Oconto River Improvement Company was incorporated under ch. 86, R. S., and the amendments thereto, for the purpose, as expressed in its articles of incorporation 'and charter, of improving the Oconto river and its branches, and driving, sorting, and delivering logs and timber .therein, as provided in said chapter. The formation of such corporations is therein expressly authorized for the purpose of the “improvement of rivers and streams, and for driving, sorting and delivering logs or timber.” S. & B. Ann. Stats, sec. 1771. It is further expressly provided in that chapter that any corporation formed thereunder “ in whole or in part for the improvement of any stream and driving logs therein and for holding or handling logs therein, which shall have taken prior possession of such stream for that purpose, shall have power to improve such stream and its tributaries, by cleaning and straightening the channels thereof, closing sloughs, erecting sluice-ways, booms of all kinds, side rolling and flooding dams, or otherwise, if necessary; but shall in no case, in any manner, materially obstruct or impede navigation upon such streams, or erect any dam or other obstruction below the head of steamboat navigation, or obstruct any navigable slough, except with the written consent of the owners of the entire shores on both sides thereof.” S. & B. Ann. Stats, sec. 1777. The same section not only authorizes such corporation to take charge of logs at the request of the owner, but, under certain conditions mentioned, to take possession of any and all logs put into such stream, and to drive the same to their respective destinations ; and also expressly provides that “ no injunctional order shall be granted to prevent the use or enjoyment of any such improvement, or abate any such dam necessary thereto, unless such corporation shall fail for sixty days after judgment to pay any damages recovered for any injury done by or in consequence of its works.”

On January 27, 1891, the defendant Northwestern Improvement Company conveyed to the defendant Oconto River Improvement Company the Flat Rock dam and all its improvements on the river and its branches; and that company has since operated the same substantially as before, to drive annually substantially the same quantity of logs.

There is no claim that the defendants have at any time improperly operated their flooding dam, nor that they have exceeded the powers thus given to them by the several statutes mentioned. The contention is that the plaintiff is also acting under statutory authority, prior in time, and that the rights of the respective parties are correlative; in other words, the contention is that the defendants cannot so operate their flooding dam as to impair the efficiency of the plaintiff’s water power. As indicated in the foregoing statement, the flooding dam is fourteen miles above the plaintiff’s water power. Of course, the plaintiff has no title or ownership to any of the particles of water at the flooding dam, nor anywhere in the river. Lawson v. Mowry, 52 Wis. 234. It is the use of water while passing that gives it value. Ibid. It is only the interference with such use by the plaintiff that is here complained of. One of the purposes of the flooding dam is to detain the water, from time to time, when the stream is low, until a sufficient quantity has accumulated to successfully float the logs to their destination, and then to let off the same in larger volume. When so detained, it frequently diminishes the water power at the plaintiff’s mills so as to prevent some of them from running at all, or at their full capacity. It is the injury resulting from such detention of water that is here made the principal ground of complaint. Counsel for the plaintiff here invoke the equitable powers of the court to prevent such intermittent increase and decrease in the flow of the water at its mill, and to regulate the rights of the respective parties in regard to such flow. Undoubtedly,' in ai proper case, equity will interpose to regulate the common use of water, to determine the extent of conflicting claims thereto and the proper mode of exercising and enjoying such rights, as tending to prevent litigation and affording a more complete and perfect remedy than could be obtained at law. Lawson v. Menasha W. W. Co. 59 Wis. 398. In support of such contentions, counsel cite numerous adjudications from other states, and also seem to rely upon two cases decided by this court. Miller v. Sherry, 65 Wis. 129; A. C. Conn Co. v. Little Suamico L. M. 74 Wis. 652. In neither of these cases was the question of statutory authority involved. The controlling fact here present is that the flooding dam and other improvements of the defendants were constructed tmder statutory aitthority, at great expense, for the express purpose of aiding in the transportation of sawlogs and timber, on the Oconto and its several branches and their tributaries. If such statutes are valid and the defendants do not transcend the authority thereby given, and the stream is confined within its banks, then it would seem the defendants are at liberty to operate the flooding dam for the purposes mentioned, regardless of whether it increases or diminishes the volume of the stream at the plaintiff’s mills fourteen miles below.

The law, as settled by a long line of decisions in this state, is that streams of sufficient capacity to float logs to market are navigable. Weatherby v. Meiklejohn, 56 Wis. 76, and cases there cited; A. C. Conn Co. v. Little Suamico L. M. Co. 74 Wis. 655. These cases treat such streams as public highways or waterways. In the last case cited, Cole, C. J., said: “ The real test to determine whether the stream is a public highway is not the fact that it has been meandered and returned as navigable, but whether it is navigable in fact,— capable of being used, and actually used, for floating lumber and logs and other, products of the country to mill and market. If it is, it is then a public highway. So that, where a stream is in fact usefully navigable in this manner, all the rights of the public attach, and no obstruction can be placed therein without legislative permission.” We are told by counsel that it is an unfortunate misnomer to call such streams navigable, because they do not bear ships upon their bosoms. Of course, they are not navigable to the extent, nor in the sense, that Lake Michigan or Green Bay or the Mississippi river are navigable, but that does not prevent their being navigable. “ In the United States, the legal meaning of ‘ navigable ’ has been much extended, and it includes, generally, all waters practically available for floating commerce by any method, as by rafts or boats.” Cent. Dict. Thus, in The Montello, 20 Wall. 430, it was held that the navigability of a stream does not depend upon the mode by which commerce is conducted upon it, nor upon the difficulties attend ing the navigation, but upon the fact whether the streamy in its natural state, is such as to afford a channel for useful commerce. That doctrine was in that case applied to the Fox river,-which originally was not fitted for. useful commerce, but was only navigated by Durham boats. The act of Congress mentioned, provided that the Menomonee “ Indians and all other persons shall be permitted to use said river for the purpose of running logs, as contemplated in this act, and the charges for said privileges shall be regulated by the legislature of the state of Wisconsin.” The acts of the legislature referred to treat the Oconto as a navigable river. The findings of the trial court conclusively determine, so far as-this case is concerned, that the river and its branches are, as a matter of fact, public navigable waterways for the transportation of logs and timber, as indicated.

Being such public navigable waterways, the legislature must, under numerous adjudications of this court, be regarded as having, in aid of such navigation, plenary power to authorize such flooding dams and other structures. Wisconsin R. Imp. Co. v. Manson, 43 Wis. 255; Stevens Point Boom Co. v. Reilly, 44 Wis. 295; S. C. 46 Wis. 237; Cohn v. Wausau Boom Co. 47 Wis. 314; Borchardt v. Wausau Boom Co. 54 Wis. 107; Black River F. D. Asso. v. Ketchum, 54 Wis. 313; Edwards v. Wausau Boom Co. 67 Wis. 463. In Black River Imp. Co. v. La Cosse B. & T. Co. 54 Wis. 659, it was in effect held that in aid of such navigation the legislature had legally authorized the closing up of Black Snake river, a branch of the Black river, even though it incidentally injured private persons. To the same effect, South Carolina v. Georgia, 93 U. S. 4. In Rundle v. D. & R. Canal Co. 14 How. 80, the efficiency of the water power was very much impaired, if not destroyed, by the canal which, under statutory authority, tapped the river above the' dam, but it was held that the owner of the dam was without remedy. Thus, in Wisconsin R. Imp. Co. v. Manson, 43 Wis. 265, it is said: “ The legislature is, primarily at least, the judge of the necessity of the improvement; and when it delegates the power to a corporation, and the state does not question that the improvement made by the corporation is in conformity with the delegated power, it seems to us that neither the necessity nor usefulness of the improvement, nor the manner in which it is made, can be called in question by private parties.” To the same effect, J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 80-87; Underwood Lumber Co. v. Pelican Boom Co. 76 Wis. 85. The same doctrine has been repeatedly sanctioned by the supreme court of the United States. Thus, in Huse v. Glover, 119 U. S. 543, it was held: “If, in the opinion of a state, its commerce will be more benefited by improving a navigable stream within its borders than by leaving the same in its natural state, it may authorize the improvements, although increased inconvenience and expense may thereby attend the business of individuals.” So, in Sands v. M. R. Imp. Co. 123 U. S. 288, it was held, in effect, that the commerce which is confined wholly within the limits of a particular state is subject to the absolute control of such state, and that, to encourage the growth of such commerce and render it safe, such state may provide for the removal of obstructions from its rivers and harbors, and deepen their channels and improve them in other ways, and exact a reasonable toll from those who use the same, as compensation therefor; and that such exaction does not deprive the person paying the same of his property without due process. In Willamette I. B. Co. v. Hatch, 125 U. S. 1, it was held that, until Congress acts respecting navigable streams entirely within a particular state, such state has plenary power over the same. That such is the law is regarded as no longer an open question in the late case of Monongahela Nav. Co. v. U. S. 148 U. S. 329 330.

The more serious question has at times been raised as to whether the legislature had power to authorize obstruction to such navigation in such streams, in view of the provisions of our state constitution, which declares, in effect, that “the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state, as to the citizens of the United States, without any tax, impost or duty therefor.” Sec. 1, art. IX. In construing similar clauses in the enabling acts of several of the states, the supreme court of the United States, in some of the cases cited and others, has uniformly held that it does not refer to physical obstructions, but merely to political regulations which would hamper the freedom of commerce. Willamette I. B. Co. v. Hatch, 125 U. S. 1, and cases there cited; J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 62, and cases there cited. It is, however, unnecessary to determine that question here.

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