135 Wis. 345 | Wis. | 1908
Lead Opinion
Tie condition of tjie record leaves tie question of tie navigability of tie Lemonweir river somewhat uncertain. Tie complaint unambiguously alleged nonnavi-gability. Tie defendant, while admitting tie maintenance of the dam under authority of tie act of 1856 (P. & L. Laws of 1856, ch. 176) and various other of tie facts alleged, closed its answer by a general denial which clearly was intended to meet tie allegation of excessive height and of injury to the plaintiffs. It might, for some purposes, be sufficient to put in issue tie navigability of tie stream, although
Even if we might not assume that fact to be conceded by the pleadings, we think the evidence insufficient to* establish its navigability, in the absence of any finding by the trial court. The stream is neither a meandered one nor one declared navigable by the legislature, from which results the prima facie presumption of nonnavigability. Clute v. Briggs, 22 Wis. 607. In the act of 1856 authorizing the erection of the dam are wholly wanting those requirements of provision for navigation either by boats or logs which are usual in milldam franchises on streams considered navigable, and the absence of which in this act, if the stream were navigable, would be specially surprising, since the stream connects with interstate waters and its obstruction would be in defiance of the Uorthwestem Ordinance of 1787 and of the act of Congress enabling Wisconsin to- become a state, which by sec. 3 [Act August 6, 1846, p. 57, ch. 89] required
The exact significance of the word “navigable” in this mill-dam statute (ch. 146, Stats. 1898) has never been the subject of- any attempt at very accurate definition further than was decided in Wood v. Hustis, 17 Wis. 416, that it included both streams expressly declared navigable by statute and those which were navigable in fact. But this utterance still leaves for consideration what “navigable in fact” means in that connection. The subject is confused "rather than clarified in the brief of respondents by the citation of very numerous cases in this court where were considered the rights of members of the community to fish or float logs or propel skiffs upon bodies of water where that was possible as against the riparian proprietors. As is well known, this court, in 'deference of what was believed public welfare, has gone to great extremes in protecting such rights in the public, and in the more recent cases has spoken of bodies of water upon which a log might be floated or a skiff propelled as navigable. This, however, was obviously a use of that term merely for purposes of brevity and not definition. It is noticeable that in the first two cases where the extreme doctrine of public rights in trifling bodies of water was discussed, the character of the stream was described not by navigability, but by the expression “public highway” or “public waterway” (Whisler v. Wilkinson, 22 Wis. 572, and Sellers v. Union L. Co. 39
It being established that the Lemonweir river is not a navigable stream at the point in question within the meaning of that term in the milldam law, then that law provides, sec. 3374, Stats. (1898) : “Any person may erect and maintain a water mill and a dam to raise water for working it upon and across” that stream; sec. 3377, Stats. (1898): “xlny person whose land is overflowed or otherwise injured by any such dam may obtain compensation therefor in a civil action as provided in this chapter . . . but in no other manner;” and sec. 3402, Stats. (1898) : “The provisions of this chapter shall extend to . . . all cases where the owner or occupant of a mill or dam makes any material change, by raising the dam or altering the machinery or the manner of using the water, so as to cause additional damage to the land of another.” These statutes are grounded in the theory, confirmed by the courts, that there is a public interest in the utilization of the water powers of the state to run mills sufficient to justify the exercise of the power of eminent domain in the flooding and consequent taking of lands of individuals. Fisher v. Horicon I. & Mfg. Co. 10 Wis. 351; Newcomb v. Smith, 2 Pin. 131; Pratt v. Brown, 3 Wis. 603. Hence that the statute is effective to render lawful the building, the maintenance, and the raising of a milldam as against the individual who suffers merely a flooding and taking of his land. A dam so authorized which does no other damage is therefore net per se a nuisance, either private or public.
The language of the milldam act is general. If given its-full force it applies to both the maintenance and the change of any and every dam in a nonnavigable stream. Whether an exception must be implied in case of dams whose height is expressly limited by the legislation authorizing them, of which there may be some in this state; or by express agreement with riparian owners, we need not decide. True, the present dam was originally authorized by special act of the legislature, passed, as we have seen, in the interim when ther*e was no general law upon the subject; but that act adopted in all general aspects the policy and procedure of
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.
Concurrence Opinion
-(concurring). I concur in this decision, holding that the dam may he maintained as it is, upon the ground that, under the circumstances shown, the defendant is using the mill site to maintain a grist mill, and an electric power plant devoted to public uses.