Apfelbacher v. State

167 Wis. 233 | Wis. | 1918

Eschweileb, J.

By ch. 624 of the Laws of 1913 the legislature expressly gave plaintiff authority to bring suit for the purpose of settling and determining all controversies between him and tbe State of Wisconsin with reference to tbis mill property on tbe Bark river and relative to tbe use of tbe waters of Bark river and Lake Nagawicka. Tbe only effect of tbis legislation was to waive tbe immunity, wbicb tbe State as sovereign lias, from being sued by one of its subjects, and it neither created nor admitted any liability on tbe part of tbe State. Apfelbacher v. State, 160 Wis. 565, 152 N. W. 144.

In plaintiff’s complaint be asserted that be bad acquired certain rights by prescription against tbe defendant Hunv-phrey in and to tbe water power in question. Tbe determination of tbe court upon tbe evidence was, however, that tbe rights of tbe defendant Humphrey were older than those of tbe plaintiff. Tbis took any question as to prescriptive rights out of tbe case.

'Defendants contend that, tbe plaintiff having come into court upon allegations based upon a theory that bis rights were prescriptive, tbe court could not consistently in tbis case grant him relief upon tbe basis of rights wbicb be bad as a riparian owner merely. Tbe court, however, was fully justified in disposing of tbe case upon tbe evidence that was before it and in adjusting tbe rights of tbe parties in accordance therewith rather than upon any narrow construction of tbe pleadings. Under legislative and oft-repe.ated judicial declarations such pleadings as herein are to be considered as amended to conform with the evidence properly before tbe court.

In tbis state tbe owner of an upper dam has tbe right to withhold tbe waters of tbe stream at certain periods in order that there may be thereby created a sufficient storage of water to more properly and efficiently carry out tbe purpose to wbicb be, as riparian owner, may put tbe waters of tbe stream. Mabie v. Matteson, 17 Wis. 1; Timm v. Bear, 29 Wis. 254; Coldwell v. Sanderson, 69 Wis. 52, 28 N. W. 232, 33 N. W. 591; Lawrence v. American W. P. Co. 144 Wis. 556, 563, 128 N. W. 440.

But the right to detain for a time, as well as every other right which a riparian owner acquires, as such, to the waters of the stream flowing through or by his land, is restricted always to that which is a reasonable detention or a reasonable use, and these terms are to- be measured and determined by the extent and capacity of the stream, the uses to which it is and has been put, and the rights that other riparian owners on the same stream also have. There can be no absolute or fixed standard for the measure of such relative rights. The essential question to be determined by the court or jury trying the issues between the parties in each particular case is what is reasonable under the circumstances there presented. This was the view adopted by the trial court, and his finding, therefore, that the withholding, by the State, at times of the flow of water from Lake Nagawicka was not a reasonable or necessary use of the waters of Lake Nagawicka and the Bark river for the proper carrying on of the fish hatchery, is the controlling fact in this case. This determination by the court is not, as contended by defendants, a mere conclusion of law, but is the ultimate fact necessary to be determined before the court can properly arrive at conclusions of law from which a judgment may follow fixing the rights of the parties. This is none the less an issuable fact because it may and does require the consideration and consolidation of a number of other facts presented in evidence. The defendants and this court are bound by such finding, and with that fixed in the case there is no escape from the judgment as entered by the court below.

The right that defendant Humphrey has to hold back the waters of Lake Nagawicka for a time when below the high-water mark, so that the supply of water may thereby be increased, is one that is necessarily also within the limitation prescribed for all riparian rights of being kept within the boundaries of what is reasonable, and it cannot be severed from his entire rights as riparian owner, so that this particular element of those rights, that is, to withhold the natural flow of the Bark river, can be, in a measure, carved out therefrom and transferred to someone else and by that person used'in a manner that would be unreasonable if the use were by Humphrey himself. The conveyance by Humphrey to the State confers no greater right with reference to these flowing waters than Humphrey himself had. The condition of reasonable use attached to it before he conveyed it and remained with it after such conveyance. The State stands in no better position with reference to its exercise than did or would the defendant Humphrey.

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

OweN, J., took no part.