West v. Fox River Paper Co.

52 N.W. 803, 82 Wis. 647, 1892 Wisc. LEXIS 185

Opinion

The following opinion was filed June 15, 1892:

OetoN, J.

The testimony taken in this case, as contained in the printed case even, is very voluminous. The statement of facts will be brief, but sufficient to show the legal questions involved. The foregoing is a diagram of the Eox river and Grand Chute island, at the place where the hydraulic works of the parties are situated.

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The facts are as followsAt a point where the Eox river runs through sections 26 and 35, at the city of Appleton, the river is divided into two channels by Grand Chute island, of considerable length up and down the river, and containing about twenty-two acres. This island had been surveyed and its shores meandered, and had been sold by the United States as government land. In 1856 and 1857 the plaintiff, Edward West, was the owner of the island, and the owner of, or had the right to flow, the land on the south side of the south channel of the river down to the foot of the island, and on the south side' of the river a considerable distance above the island; and built a mill-dam across said channel about 200 feet below the head of the island; and a wing dam, running up from the north side of the head of the island and the north end of said dam, northwest into the main channel of the river; and began to utilize the waterpower created by said dams. By these works a part of the west end of the island was removed; and in 1870 West cut a canal lengthwise through the island, nearly central, and thereby made water-powers on each side of this canal, discharging the water into the north and south channels, the head in the canal being held by the said dam across the south channel and the said wing dam from the north side of the island. In order to open the head of the canal in connection with these dams, about 140 feet of the island at the upper end was removed, and the rocks therein used in the construction of a solid wail up from the north side of the island, in place of a part of the wing dam, the wing dam remaining mostly as first constructed.

The entire water-power afforded by the river is about 3,000 horse power.

In 1849 Amos Lawrence owned the land on the north shore of the river opposite and over and against the head of the island, and 800 feet above and 1,200 feet below, with the right of flowage of 1,000 feet more above, and built a wing dam, starting near the shore on the north side nearly opposite to and below the head of the island, and running up several hundred feet above the head of the island, and out into the river, thereby developing a mill power, discharging the water into the north channel below the head of the island; and such wing dam, rebuilt, repaired, raised, strengthened, and extended, still remains. In 1850 Lawrence constructed a canal or mill race from the foot of said wing dam 600 feet down the north channel of the river, near the north shore, affording a series of mill powers, discharging the water into the north channel of the river below and opposite said island.

In 1877 the water-power owners on both sides of the north channel of the river at this point, together with business men and citizens of the city of Appleton, in order to improve and build, up the city, obtained a charter of a company without stock, and raised a fund of $9,185 for the purpose of further improving said water-powers; and said Edwa/rd West, the plaintiff, and Anson Bullard, who was interested in the water-power on the north side of the north channel, became subscribers to said fund. Said fund was used by the company in building a dam across the north channel of the river, starting from the foot of said wing dam built by Lawrence on the north side of the north channel, and extended south to near the head of the island, and, if extended a few feet further, would have reached the island about twelve feet below the head of it in its natural condition; and this gap was filled by a wing wall coming down to the island as it then was, on a line with and using a part of a retaining wall built by West up from the north side of the island. The wing dam built by West from the north side of the head of the island out into the river above, and the one built by Lawrence from near tbe north side of the north channel opposite, came nearly together near the center of the river above, in the form of an inverted “ Y,” and in this way appropriated nearly the whole power of the river, and made the power belonging to either side much greater. After the cross dam had been built by the company as above, the said wing dam built b}r West above the cross dam was removed, but the said wing dam built by Lawrence from the other side is still retained, thus affording the defendants, as the grantees of Lawrence, the additional advantage of an increased, head within the wing dam, by reason of the cross dam, and for building-mills on the cross dam, of which they have already availed themselves.

This is a brief statement of the facts found by the court. The learned judge before whom this case was tried personally inspected these water-powers and the constructions by which they have been made available to the parties, and he was therefore peculiarly well qualified to understand and weigh the testimony, in view of these physical monuments. It is impossible for this court to be as well qualified as the trial court to correctly find the facts. "We shall, therefore, accept the findings as verities in the case.

There are really only two questions on which the judgment depends, and they are, (1) whether the defendants’ power on the north side has been made available by them at a point opposite and below the head of the island in its natural state; and (2) what proportion of the waters of the river naturally flow in the south channel and the south half of the north channel. To ascertain these facts a great many witnesses who were personally cognizant of these natural conditions many years ago had to be examined, and testified from their recollection. It is not strange that there was considerable difference in their recollection of such conditions. They did not observe these physical con ditions at the time with any view or expectation that they would ever be called upon to testify of them. The occasion and facilities for observation at the time, and the reasons for their recollection, would naturally be various and different. The learned judge who heard them testify, and who was therefore able to apply the usual tests of credibility, and to reconcile their testimony if possible, and if not, to determine the truth between them, has unquestionably formed the best possible judgment of what were the facts. As to the first question, the court found that the defendants’ power was made available, and their dam on the north side was, at a point even with and opposite to a point below the west or upper end of Grand Ohute island. As to the proper proportion of the water-power belonging to the plaintiff by his ownership of the south and north shore of the south channel, and of the south shore of the north channel of the river, the court found — (1) that the plaintiff (or his grantees) is the owner of and entitled to the use “ of the hydraulic power of one half of the flow of the north or main channel, and of the whole of the flow of the south channel, of the Fox river when it passes the head of Grand Ohute island and the dams placed therein at or near the head of such island.” (2) That the defendants “ are the owners of and entitled to the use, for hydraulic power, of the one-half of the north or main channel of the Fox river when it passes the head of Grand Ohute island and the dams placed therein at or • near the head of such island.” (3) “ That the width of the south channel, near the head of Grand Ohute island, as filled with water at the ordinary stage, was about 120 feet, and the width of the north channel near the head of Grand Ohute island, as filled with water at the ordinary stage, was about T60 feet, and that the average depth of the two channels was nearly the same.” (4) “That one seventh of the natural flow of said river in its natural state was appurtenant to and flowed through the south channel, and six sevenths of the flow of said river was appurtenant to and flowed through the north channel.” The conclusion of law following these findings of fact was, in effect, that the defendants ought to be enjoined and restrained from drawing water at any time from the mill pond or ponds on the Eox river, at or near the head of Grand Chute island, in the city of Appleton, in sections 26 and 35, to exceed three sevenths of the entire flow of water furnished by said river at said point. These are all the findings material to the questions of law raised on this appeal.

The principles of law on which the plaintiff’s case depends are not many, but are important, and appear to be well settled, although arising upon somewhat novel and peculiar conditions. The Eox river, on the cross line of the dams which furnish water-power to both parties, is divided by this large island, which has been surveyed, meandered, and sold by the United States. The contention of the learned counsel of the respondents is, first, that riparian ownership attaches to this island, the same as to the main shores- of the river. This is not contested by the learned counsel of the appellants. This principle is necessary to the plaintiff’s claim to more than one half of the river, and seems to be well established by the authorities cited in respondents’ brief, and rests in reason as well. Where the main-land on both sides of the stream, and the island dividing the stream, have been all and separately surveyed and sold to different persons by the government, it follows by necessary implication that the island was reserved from the grant of the main-land, and the filum aqum is established in the center of the channels on both sides between the main-land and the island. To each owner of the opposite . main-land the island becomes the opposite shore, and as to them two fila aquas are established. Eiparian rights are valuable property, and are attached to all land bordering on a stream; and the owner of an island is as muck entitled to sucb rights as the owner of the main-land. As said by the learned counsel of the appellant in their brief: “ In the construction of a government grant, the government survey is conclusive as to the river boundary.” Bates v. I. C. R. Co. 1 Black, 204; Lammers v. Nissen, 4 Neb. 245. The plaintiff West having become the purchaser of this surveyed island, became a riparian proprietor on both channels of the river opposite to it. In a late case cited in the brief of the respondents,—Wiggenhorn v. Kountz, 23 Neb. 690,—very clearly stating this principle, the following authorities are cited: Stolp v. Hoyt, 44 Ill. 223; Trustees of Hopkins’ Academy v. Dickinson, 9 Cush. 544; People ex rel. Tibbits v. Canal Appraisers, 13 Wend. 355; Buse v. Russell, 86 Mo. 209. See other cases cited in respondents’ brief. Each of these two channels is treated as a separate river in respect to the riparian rights of the owner of the island.

Second. It follows, therefore, that the plaintiff is entitled to the natural flow of the south channel where his dam is situated, for hydraulic purposes, and the whole thereof, by reason of his being the owner of the island on one side, and of the mainland on the other. Smith v. Ford, 48 Wis. 116; Wall & Co. v. Cloud, 3 Humph. 181; Medway Co. v. Romney, 9 C. B. (N. S.), 575. The full expression of the plaintiff’s right to the water-power to this extent should be that he is the owner of the abutting land, and still owns the riparian rights thereof, or the owner of the right of flow-age or use of the abutting land for the purpose of landing a dam thereon, and the owner of the dam built for the purpose of making the water-power at that point available. Lawson v. Mowry, 52 Wis. 219. This may answer the rather technical discussion of counsel on that subject.

So far, then, the plaintiff has established his right to an injunction against the defendants from using to exceed three sevenths of the waters of the river at that point for hydraulic purposes. But this is subject to certain contentions of the learned counsel of the appellants, which, if allowed, would defeat such right. First. That the removal of 140 feet from the upper end of the island in 1870 caused the upper end of the island to fall below the landing of the defendants’ dam on the north side, and after that time the defendants were entitled to one half of the main river unaffected by the island. It is contended that this upper end of the island having been removed by the plaintiff voluntarily, it not only cannot be restored, but the submerged poi’tion is no longer a part of the island,. but a part of the river, and that the plaintiff can no longer claim that the defendants’ dam is opposite to the island. The authorities cited by the learned counsel do not meet the conditions of this change in the head of the island. This principle belongs to the law of servitudes, mostly, when the use has been changed by the servient owner, and he thereby loses his right, as in Taylor v. Hampton, 4 McCord, 96; or where a stream had been changed on the land of one favorably to the owner of adjoining lands through which it formerly ran, and he expends money on the change, as in Ford v. Whitlock, 27 Vt. 265; or when, by a, sudden and unusual flood, a stream had been so changed on.the land of one as not to pass upon the lands of another, and it had been acquiesced in for ten years, as in Woodbury v. Short, 17 Vt. 387; or where the owner of the land had permitted a mill owner to flow it by means of his dam, and had acquiesced in it for ten years, as in Cobb v. Smith, 16 Wis. 661. Here the plaintiff had the right to build his dam abutting the island and extend it north to connect with the dam of the defendants, and on the line of the defendants’ dam. He had built a wall and break-water and made other constructions to direct the waters into the canal through the island and perfect the connection of his dam withthat. of the defendants. In doing so he made use of the roc.k and earth in the head of the island above the dam. After the dam had been completed and its connections secured, .the point of the island above the dam was no longer necessary,.but in the way of a necessary depth of water at the mouth of the canal. In the place of the point removed, he built walls and other works, nearly if not quite as far into the river as the island extended beyond the line of the dam. The defendants, with others, in 1877, long after this point had been removed, acquiesced in it by building the cross dam to connect with these works of the plaintiff at the place where the point of the island had been removed; and the defendants have continued to use the cross dam for water-power since 1877, without question or objection, arid have acquiesced in the construction of the works as they are. Before the upper end of the island was removed, the plaintiff had the right to construct his works on the line of the works of the defendants on the north side, by-reason of the upper end of the island being above the works of .the defendants. The defendants have never changed their use of the power in consequence of the removal of the upper point of the island, or expended any money in any place' to use the river or. power, • irrespective of the island being opposite to the end of the dam. Estoppel by acquiescence is against the defendants to deny the right of the plaintiff to maintain his dam as it is. The plaintiff did not remove the upper end of the island in order to change its boundary, but to make use of it in the construction of his works, and such works stand in the place of it. These considerations are mentioned to. show that the principle contended for is inapplicable to this case. The contention is plausible, but we áre of the opinion that it is ■ not pertinent to.the peculiar circumstances of the case, and that the plaintiff has not lost his right so obtained, and upon which he has made such large expenditures, by the removal of the upper end of the island so as to canse the upper end of the island, as it is, to be below the dam of .the defendants.

Second. That the true line between opposite riparian proprietors should be a direct line across the river. It will be presumed that the circuit court found the point where the defendants’ dam abutted on the north shore to-be opposite to the island, upon the correct rule, unless it appears otherwise. There would appear to be margin enough, in the distance — that the upper end of the island was above the dam of the defendants — to admit of any reasonable rule upon that question.

Third. That the plaintiff’s dam is an obstruction to the navigation of the river. This question is not involved in this case. It appears to be clear enough that the river is not navigable at this point. The United States constructed a canal around the rapids in the' river at this place to be used for navigation in place of the river proper, and for the reason that the river was not navigable.

Fourth. That the plaintiff’s dam causes the flowage of lands above. Both parties have the right to flow lands above, under the mill-dam act. That is a question, however, between the land-owners above and the mill-owner at the dam, and not between the mill-owners themselves. To consider that question in this case would be trying another and new case, and that, too, without parties.

Fifth. The manner in which the parties return the water to the river below their dams and mills has nothing to do with the question here involved, which is, What proportion of the river and power belongs to each of the parties? and •the remedy is an injunction against the use of an excess of such proportion. Each party is under a legal obligation not to use his power to the injury of the other; The use of the power is not sought to be regulated in this action. None of these contentions appear to affect the right of the plaintiff, established as above, to use the whole of the south channel and one half of the north channel of the river for hydraulic purposes.

For convenience I have used the terms plaintiff and defendants. The parties in interest will appear from the record. This is a very important suit, and has been presented to this court by very able and eminent counsel in the best manner possible. We have felt compelled to accept the findings of the court upon the questions of fact, without any particular examination of the testimony to ascertain their correctness, for the reasons already suggested. On the findings of the court the legal conclusions, as above, •appear to be clear and indisputable.

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

A motion for a rehearing was denied September 27,1892.