Milwaukee-Western Fuel Co. v. City of Milwaukee

139 N.W. 540, 152 Wis. 247, 1913 Wisc. LEXIS 70

• Court: Wisconsin Supreme Court
• Decided: February 18, 1913
• Status: Published

Opinions

The following opinions were filed January 7, 1913:

ViNJE, J.

As we understand it, the turning point in the case in the court below was the fact that the plans of the bridge were not approved by the common council, as required by sec. 9 of ch. IX of the city charter, and that the structure was held to be a nuisance on that ground. There is a dispute between the parties as to whether or not the evidence shows they were so approved. A careful examination of the evidence adduced by both sides satisfies us that the plaintiff made a prima facie case showing that the plans were not approved, which, was not overthrown by defendant’s proof, and the case must be disposed of on the theory that there was a failure of approval of the plans by the council. It is claimed by the respondent that such failure of approval renders the bridge an illegal structure and a nuisance in navigable waters, under the following authorities: Barnes v. Racine, 4 Wis. 454; Potter v. Menasha, 30 Wis. 492; Sweeney v. C., M. & St. P. R. Co. 60 Wis. 60, 18 N. W. 756; Pennsylvania R. Co. v. B. & N. Y. R. Co. 37 Fed. 129; Maxwell v. Bay City B. Co. 41 Mich. 453, 2 N. W. 639; Texarkana & Ft. S. R. Co. v. Parsons, 74 Fed. 408; Viebahn v. Crow Wing Co. Comm’rs, 96 Minn. 276, 104 N. W. 1089. A careful examination of these cases will disclose the fact that they do not decide the question here presented.

In Barnes v. Racine, 4 Wis. 454, the city, under its general authority as a municipal corporation, proceeded to erect a bridge over Root river at a sharp angle in the stream. It had no statutory authority or federal authority to erect the bridge, and the court held that, as and where erected, it constituted an obstruction to navigation, and therefore by statute was made a nuisance. In Potter v. Menasha, 30 Wis. 492, it was held that the defendants, as trustees of the village of Menasha, had no authority whatsoever in any form to construct the bridge in question; that they were pure trespassers. The case of Sweeney v. C., M. & St. P. R. Co. 60 Wis. 60, 18 N. W. 756, turned upon a question of pleading, and it was there held that a complaint which alleged that the channel of the Wisconsin river was obstructed by a bridge built by the defendant below the city of Portage, in that no boats or rafts could pass in safety without guide booms extending up the river from each end of the main span, and that such guide booms were not maintained, in "consequence of which plaintiff suffered damage, stated a cause of action, although it did not allege that the channel span of such bridge had been designated by the engineer of the United States in accordance with. sec. 1605, R. S. 1878, or that there has been any violation of sec. 1837, R. S. 1878. In Pennsylvania R. Co. v. B. & N. Y. R. Co. 37 Fed. 129, it was held that a complaint alleging that a bridge over navigable waters constituted an obstruction therein, need not allege that the bridge was not built in conformity with authority granted by the federal government, for if it was built in conformity therewith that could be shown as defensive matter, adding:

“If the contention for the demurrer is sound, it would devolve upon a plaintiff, whose right to the free navigation of public waters has been interrupted by an impediment which prima facie is a nuisance, to prove that the defendant acted under an assumed authority, but was not justified, because his acts were outside of the limitations of his authority; in Other words, to negative facts by way of defense which are peculiarly within the knowledge of the defendant.” .

The demurrer to the complaint was therefore overruled.

In Texarkana & Ft. S. R. Co. v. Parsons, 74 Fed. 408, it appeared that Congress had authorized a railway company to construct a bridge with a draw of 130 feet in the clear, providing the plans were approved by the secretary of war, and providing further that the bridge should not be built until such plans were so approved. It was conceded that the openings of the draw were only 125 feet in the clear, and no evidence was offered to show that the plans had ever been submitted to or approved by the secretary of war.

The case of Maxwell v. Bay City B. Co. 41 Mich. 453, 2 N. W. 639, so far as applicable to any question in the case at bar, decided that a petition for leave to build a bridge across the Saginaw river in Bay City did not comply with the statutory requirements as to describing the location and character of the bridge. Therefore the supervisors acquired no jurisdiction to permit its construction. It was held the specified location was indefinite, because the petition proposed that it should be located somewhere between Second and Ninth streets in Bay City, and it was shown that there were seven streets between the two named where it might be placed. The description of the bridge in the petition was also held defective. In Viebahn v. Crow Wing Co. Comm’rs, 96 Minn. 276, 104 N. W. 1089, 3 L. R. A. n. s. 1126, the defendants proceeded to erect an immovable bridge across the Mississippi river without any authority either from the state or the federal government, in express violation of secs. 9, 10, and 11 of the act of Congress of March 3, 1899 (30 U. S. Stats. at Large, 1151, ch. 425, Comp. Stats. 1901, pp. 3540, 3541).

It is apparent that none of the cases cited by the respondent touch the precise question presented by the case at bar, namely, Did the failure of the city council to approve the plan of the bridge constitute it an unlawful structure in navigable waters ? It is undoubtedly the general doctrine of all courts that legislative authority to build and maintain a structure in navigable waters must be strictly followed, so far at least as any deviation therefrom would affect the degree to which it might impede or obstruct navigation. But it does not follow from such rule that an omission to conform to a prescribed mode of procedure in the erection of a structure, not affecting the question of navigation, renders it a nuisance on the ground that it unlawfully obstructs navigation.

The only attack made upon the bridge in this case is that it constitutes a nuisance because it unlawfully obstructs navigation. It is not claimed to be a nuisance for any other reason. Hence, if it can be shown that its obstruction of navigation is pursuant to lawful authority, it ceases to be a nuisance so far as this case is concerned.

The Kinnickinnic river is a navigable stream over which the federal government has exclusive control relative to structures placed therein or thereover which affect its navigability. 30 U. S. Stats. at Large, 1151, ch. 425, sec. 9 et seq. This statute provides that such structures across rivers and other waterways the navigable portions of which lie wholly within the limits of a single state, may be built, provided the location and plans thereof are submitted to and approved by the chief of engineers and by the secretary of war before construction is commenced. It further provides that when plans for any bridge or other structure have been approved by the chief of engineers and by the secretary of war, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the chief of engineers or the secretary of war. In the present case the plans of the bridge were submitted to and received the approval of the chief of engineers and of the secretary of war, and the bridge was built without any deviation from or modification of the plans as submitted and approved. Such approval of the plan was tantamount to a declaration by the federal government that the bridge is not an unlawful structure so far as navigation is concerned. The federal government having declared it a lawful structure in navigable waters, no state authority or court can declare it unlawful or abate it as a nuisance on the ground that it unlawfully obstructs navigation. The declaration of the federal government is conclusive and final on that subject. Gilman v. Philadelphia, 3 Wall. (70 U. S.) 713; Pennsylvania v. Wheeling & B. B. Co. 18 How. (59 U. S.) 421; Clinton Bridge, 10 Wall. (77 U. S.) 454; Wisconsin v. Duluth, 96 U. S. 379; Miller v. New York, 109 U. S. 385, 3 Sup. Ct. 228; Willamette I. B. Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811; Monongahela Nav. Co. v. U. S. 148 U. S. 312, 13 Sup. Ct. 622; Luxton v. North River B. Co. 153 U. S. 525, 14 Sup. Ct. 891.

In Pennsylvania v. Wheeling & B. B. Co. 18 How. (59 U. S.) 421, it was held that an act of Congress which declared a bridge across the Ohio river a lawful structure, staid the execution of a judgment theretofore rendered by the supreme court of the United States declaring the bridge to be a nuisance and directing it to be abated, on the ground that tbe power of Congress to regulate commerce, including tbe regulation of intercourse and navigation and, consequently, tbe power to determine wbat shall and wbat shall not be deemed in law an obstruction to navigation, is supreme 'and final, and that tbe act of Congress, though passed after tbe judgment was entered, operated to stay its execution in so far as it decreed tbe abatement of tbe bridge as a nuisance.

In the Clinton Bridge Case, 10 Wall. (77 U. S.) 454, it was held that an act of Congress declaring a bridge across tbe Mississippi to be a lawful structure abated a suit in chancery previously begun praying an injunction against tbe building of tbe bridge as a nuisance. Tbe court say:

“In tbe present case tbe act of Congress having passed pending tbe suit, it gave tbe rule of decision for tbe court at the final bearing upon tbe same principle that tbe act in tbe ’Wheeling Bridge Gase staid tbe execution of the decree directing its abatement.”

Speaking of tbe power of Congress over navigable waters, tbe court in Wisconsin v. Duluth, 96 U. S. 379, 387, says:

“It is a power which has been exercised ever since tbe government was organized under tbe constitution. Tbe only question ever raised has been bow far and under wbat circumstances tbe exercise of tbe power is exclusive of its exercise by tbe states. And while this court has maintained, in many cases, tbe right of tbe states to authorize structures in and over tbe navigable waters of tbe states, which may either impede or improve their navigation, in tbe absence of any action of tbe general government in tbe same matter, tbe doctrine has been laid down with unvarying uniformity, that when Congress has, by any expression of its will, occupied tbe field, that action was conclusive of any right to tbe contrary asserted under state authority. Tbe adjudged cases in this court on this point are numerous.”

Re-affirming this doctrine, tbe court, in Monongahela Nav. Co. v. U. S. 148 U. S. 312, 335, 13 Sup. Ct. 622, says:

“Upon wbat does tbe right of Congress to interfere in tbe matter rest? Simply upon tbe power to regulate commerce. This is one of tbe great powers of tbe national government, one whose existence and far-reaching extent have been affirmed again and again by this court in its leading opinions, and the power of Congress over such natural highways as navigable streams is confessedly supreme.”

It must be held, therefore, that the failure of the city council to approve the plan of the bridge does not constitute it an unlawful structure in navigable waters. To hold otherwise would be to declare that unlawful which paramount authority says is lawful.

No matter how long plaintiff had used the south channel, it could acquire no prescriptive or other right to its continued use. Kelley v. Salvas, 146 Wis. 543, 131 N. W. 436; Thayer v. New Bedford R. Co. 125 Mass. 253. It was only exercising a public right to use navigable waters, which right was subject to control and even extinguishment by the proper authority. For a navigable stream is as much a public highway as a street and no private rights can be acquired therein by its user as such. Nor can any individual insist upon a continuance of his public use of a navigable stream as against structures lawfully impeding or obstructing it. People ex rel. Murphy v. Kelly, 76 N. Y. 475; Frost v. Washington Co. R. Co. 96 Me. 76, 51 Atl. 806; Davidson v. B. & M. R. R. 3 Cush. 91; Cardwell v. American B. Co. 113 U. S. 205, 5 Sup. Ct. 423.

The south abutment of the bridge cut off access to plaintiff’s property from the side. The city did not cut it off from the front, for the jury found that it had nothing to do with the placing and maintenance of the piling described, and but for such piling plaintiff’s dock could be reached through the new channel from the front. A riparian’s right of access is from the front only. Gould, Waters (3d ed.) § 153; 1 Farnham, Waters, p. 302; Keyport & M. P. S. Co. v. Farmers’ Transp. Co. 18 N. J. Eq. 13; Jenks v. Miller, 14 App. Div. 474, 43 N. Y. Supp. 927; Bond v. Wool, 107 N. C. 139, 12 S. E. 281.

Respondent’s claim that Kinnickinnic avenue is not sixty-six feet wide across tbe river we deem cannot be successfully maintained. Tbis claim is based upon tbe plat of tbe property wbieb shows a cessation of tbe street lines at tbe river bank and a return of tbe same toward tbe center of tbe street and a narrower passage over tbe river. See plat below.

■We construe tbis narrower passage to be intended to represent a bridge merely, and not to indicate an intention to change the width of the street across the river. The location of the dock line on the plat to the center of the street shows that lines were not drawn with any great accuracy. It follows, therefore, that no part of the bridge structure is outside the limits of the street, and that no part of plaintiff’s land has been subjected to any additional burden by reason of its construction.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.