100 Wis. 314 | Wis. | 1898
Lead Opinion
The following opinions were filed September 28, 1898:
The main inquiry on this appeal is whether the evidence establishes the existence of an ancient watercourse across the plaintiff’s land, which was diverted into the logging ditch which was dug by the Goodyears, or whether the water which was gathered into and conducted by that ditch was mere surface and percolating water; for, although the plaintiff does not now complain of the digging of the ditch, but, on the contrary, finds it to be to his advantage and desires it to be maintained and kept in repair in its present location upon his land, still the question whether the
Cranberry marshes are improved in various ways, — if too wet, by the drainage of the surface and percolating water; if too dry, by the storage of the surface and percolating water by means of dams, to be used, at the proper time, in irrigation, or to protect the crop from untimely frosts by inundation. If it shall be deemed that a marsh, through which a considerable volume of water is strained by jaereolation, and on the surface of which surface water at times stands or flows, is, in its entire breadth, a natural watercourse and subject to the rules of use and diversion applicable to watercourses, the decision will have an important effect on the improvement of cranberry marshes. It will greatly restrict the mode and possibility of such improvement. This marsh is not, practically, unlike cranberry marshes in general. Such marshes are usually formed and fed by springs which flow in along the margin, or from
What is essential to constitute a watercourse is well settled and defined by the decisions of this court: “It must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, with sides or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over a tract of land, occasioned by unusual freshets or other extraordinary causes.” Hoyt v. Hudson, 27 Wis. 656; Fryer v. Warne, 29 Wis. 511; Eulrich v. Richter, 37 Wis. 226; Lessard v. Stram, 62 Wis. 112. The bed is the characteristic which distinguishes a watercourse from mere surface drainage, and from percolating water. Gould, Waters, § 41. “'In general, in order to constitute a watercourse, the channel and banks formed by the flowing water must present to the eye, on a casual glance, the unmistakable evidences of the frequent action of running water.” Id. § 264. “ It must have a well-defined and substantial existence.” Eulrich v. Richter, supra.
Nothing which is said in the opinion on the former appeal in this case (84 Wis. 438) is necessarily out of harmony with this definition of a watercourse. The question there decided arose on a demurrer to the complaint. It was whether the complaint stated facts which showed the existence of an ancient watercourse across the plaintiff’s land. The complaint did not, in terms, allege the existence of such a watercourse, but stated facts from which it was claimed the court
It is not here questioned that such a volume of water, flowing continuously across the plaintiff’s land, in a distinct and plainly marked channel, well defined and established, would constitute a watercourse. The question now presented is whether the evidence given on the trial did estab-
Clearly, this falls far short of establishing such a “well-defined and substantial existence ” as is essential to constitute a surface watercourse. If so, which one of all these pseudo and discontinuous channels is the true, definite, and manifest watercourse ? Nor is there evidence of the existence of such a subsurface stream as is recognized to be a watercourse. To be such, a subsurface stream must follow a definite and Imown channel. Subsurface currents or per-colations which do not follow definite and known channels are not governed by the rules respecting the use and diversion of watercourses, but, although of considerable volume, are treated in law the same as surface water. The water is deemed to be a part of the soil itself, and, to the same extent, subject to whatever disposition the owner of the land
There is one passage in the former opinion which may seem on first view to be at variance with this statement of the rule of percolating waters, as applicable to this case; but it is believed that, on analysis, it will appear that there is no necessary conflict. The passage immediately follows the portion above quoted. It is: “Admit that the complaint shows that this stream spreads over wide reaches of marsh and swamp lands, and percolates the soil in many and most places between Big Lake and Beaver Creek, or in all places except those mentioned, where the ground was suitable for cutting a well-defined channel, as above described; according to the above authorities, such spreading of a stream through marshes and swamps, on or below the surface, does not militate against its being a watercourse in every essential particular, if it can be traced or identified as the same stream.” This is plainly ambiguous. "What is intended by
The court was considering a complaint which it deemed to allege, by necessary inference, a stream of water continuously flowing across the marsh, in a definite and plainly marked channel, except in certain places where the soil was. unfavorable to the cutting of a channel, which could be traced and identified with both the upper and the lower stream. It was not considering the actual stream as it appears in the proofs, so utterly lost in the marsh as not to have left a vestige of a true channel to mark the line of its onward course. No such case was presented by the complaint, no such case was decided. It would be unwarranted to assume that, in that situation, the court had decided that the lost stream was a watercourse throughout the interval in which it remained lost to sight, between the points of its disappearance in the marsh and its reappearance as the west branch of Beaver Creek. A decision of the question was uncalled for by the pleadings. Such a decision would be absurd in law, and disastrous in its consequences. It would be, in effect, to hold that the entire marsh, in its whole area, is the single bed of a watercourse; for it cannot be known how widely through the marsh the percolating water is dispersed,, and no true channel can be definitely located. Every part
So, it is considered that the court did not intend, in that decision, to announce any doctrine which is not in harmony with the view which the court now takes on the proofs of the actual situation. The opinion is not, at least necessarily, out of harmony with the present decision. How the court would have decided the question if it had been presented as in the proofs taken on the trial can be properly inferred only from the standpoint of the law itself. Even if, by dubious inference or specious argument, it could be m-ade to seem plausible that the court intended to embrace such a proposition within the scope of its decision, its judgment would not be, to that extent, res judioatco. A judgment makes only that which was in issue and decided res judicata. The reasons given by the judges, whether few or many, are not res judicata. Nor is the effect of the judgment as an estoppel either restrained or enlarged by the reasons given, nor can its effect as res judicata extend to any matter only incidentally cognizable, or which. is to be inferred by argument from the judgment. Freeman, Judgments (4th ed.), §§ 249-258; Williams v. Williams, 63 Wis. 58-71; Braun v. Wis. Rendering Co. 92 Wis. 245. Whatever may have been intended by that passage, it clearly is not here binding on the court as res judñcata. So, it is considered that the defendants might lawfully dig and maintain their ditch on their own land, and are not liable to the plaintiff, even if the ditch does collect and divert from his land surface and subsurface water which would have come there, whether by surface drainage or by percolation through the soil, but for the ditch. If such diversion caused him damage, it gives
But, as before stated, the right to construct and maintain the ditch is not the essential point in controversy in the action. It was, nevertheless, needful to be determined, because upon it the point directly in controversy seems necessarily, in great measure, to turn. The plaintiff is willing and desires the ditch to be maintained, as at present located, across his land. It is to his advantage that it be so maintained. It brings to his land a supply of water, which is useful in the prosecution of his cranberry industry, and at the cost of the defendants. The defendants propose to remove the ditch from plaintiff’s land, by changing its course so that it shall not cross his land but shall cross the land of the defendant Stickney, above the plaintiff’s line. This is partly to be relieved of the burden of furnishing water to the plaintiff’s cranberry marsh, and partly to better serve their own interests. The action is to prevent the proposed change in the course of the ditch, and to require the defendants to maintain and keep it in repair, in its present location, for plaintiff’s benefit. The trial court held and adjudged that the ditch diverted a watercourse, and had bécome a legal watercourse in its present location, and could not lawfully be diverted to another course, away from the plaintiff’s land, without the plaintiff’s consent, and that the plaintiff was entitled to have it maintained and kept in repair forever, so that the plaintiff may perpetually receive therefrom water to irrigate his cranberry marsh; and the defendants are forbidden to change the course of the ditch, or to divert its current from the plaintiff’s land, and are enjoined to keep the ditch in repair, so that the plaintiff may receive his needed supply of water from it perpetually. This right is claimed for the plaintiff on two principal grounds. (1) That by the diversion of an ancient watercourse the defendants
To determine the first ground on which this claim is founded, it became necessary to ascertain and determine whether it was, in truth and in law, an ancient watercourse which had been diverted into the ditch, and whether it continued to be a legal watercourse in its new course and location, or whether it was the mere diversion and leading away of mere surface or percolating waters; for it may well be that parties who divert a watercourse into and through a new and artificial channel should, be deemed only to have established a new course and channel for the same watercourse, which is subject to the same rules, as to its use and diversion, as applied to it in its ancient channel (Gould, Waters, § 225; Wood, Nuisances, § 399; Stevens Point Boom Co. v. Reilly, 44 Wis. 295-298); while mere surface water does not become a watercourse by being gathered into a ditch and led away (Wood, Nuisances, § 401; Fryer v. Warne, 29 Wis. 511; Stanchfield v. Newton, 142 Mass. 110). Since it is considered that it was mere surface and percolating water which was gathered into this ditch, it follows that it was still subject to be used and disposed of, for his own purposes, by the proprietor of land upon which it came. Wood, Nuisances, § 402 et seq.; Curtiss v. Ayrault, 47 N. Y. 73-82. The proposed new ditch upon the land of the defendant Siiehney, above the plaintiff’s land, was not a violation of any right of the plaintiff. Stielmey had the right to dispose of such surface and percolating water as came to his land for his own purposes, and in such manner as best suited his inter
It remains to be considered in what measure, if at all, the plaintiff’s rights in this ditch, and to the use of its water, have been strengthened by the Goodyear contract. It cannot, of course, be claimed that the defendants are under any greater or different obligation to the plaintiff in respect of the maintenance and repair of the ditch than rested upon the Goodyears at the time of the sale to Hoffman; for the defendants, at most, have agreed only to save the Goodyears harmless against their obligations to the plaintiff at that time. At that time the contract still rested in parol. The defendants could not be made liable on a contract subsequently made. The contract is noticeable for what it omits. It does not specify that the Goodyears shall maintain the ditch, nor that they shall keep it in repair. They promise nothing, except that the plaintiff may get water from the ditch. Nor does the contract specify for how long the plaintiff shall be permitted to take the water. It might be a question of some difficulty to determine how far it was intended to bind the Goodyears. Yet it may be fairly assumed that the parties contemplated some benefit to the plaintiff from it. But it is not necessary to inquire what the precise measure of the obligation was which the Goodyears intended to assume, for it seems clear, in any aspect, that the contract was void under the statute of frauds, and not binding at all on the Goodyears. If it was intended to give the plaintiff some interest in, and control over, the ditch, it was invalid for that purpose because not made in writing. R. S. 1878, sec. 2302. The ditch is land within the meaning of the statute. R. S. 1878, sec. 4971; 3 Kent, Comm. 401; 1 Washb. Real Prop. 4. If the contract could not, according to its terms and the intention of the parties, be completely performed within one year from its making, it is
On the whole case, it is considered that the evidence fails to show an. ancient watercourse across the plaintiff’s land; that the ditch diverted no ancient watercourse, but intercepted and collected only surface and percolating water; that this was not a wrong of which plaintiff can complain; that the ditch did not become a legal watercourse; that the water conveyed by the ditch did not cease, in legal contemplation, to be surface water, subject to be used or disclosed of by the owners of the land upon which it came; and that the defendants are under no contract obligation to maintain the ditch or keep it in repair for the plaintiff’s benefit.
By the Oowrt.— The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the complaint. The printed case is needlessly large. The cost of printing the case, to be taxed, is limited to 500 pages.
Dissenting Opinion
I respectfully but earnestly dissent from the decision reached in this case and the reasons given to justify such decision. It occurs to me that argument as to the law respecting what constitutes a watercourse would show a want of comprehension of the force of the principles to which I shall refer. That will account for the entire ab
What was said at the close of the preceding paragraph is one of the grounds of my dissent. Some reference to precedents respecting the binding force of a former adjudication seems to be necessary at this point, not because there is any difference of opinion as to the general principle, but to show that it should be broadly and firmly applied.
It is bad enough to have the law changed when once settled by the courts. The law as once settled for a particular case cannot be so changed without violating a principle firmly established and absolutely necessary to the due administration of justice. In Noonan v. Orton, 4 Wis. 335, a demurrer to a bill filed turned on whether a lease was a demise of water merely, or of water and an interest in land. The case was again before the court on appeal from the judgment rendered on a trial of the issue formed by the complaint and answer. 27 Wis. 300. On such second appeal an effort was made to reopen the question of the proper construction of the lease, and on that point Mr. Justice Cole, speaking for the court, said: “ The -counsel for the defendant has criticised somewhat the soundness of that decision, and has attempted to restrict the extent of the propositions of law there decided. But it seems to me impossible to say that the above points were not fairly raised by the issue of law presented by the demurrer to the bill and passed upon by the -court. So that, whether rightly or erroneously decided, those questibns are no longer open for discussion, but are clearly res adjudicate? In Lathrop v. Knapp, 27 Wis. 214, certain questions of law raised on a general demurrer to the complaint were decided. The case came here again on appeal from the judgment. 37 Wis. 312. In the meantime Mr. Ryan became chief justice in place of Dixon, C. J., and Mr. Justice Lyou became a member of the court in place of Justice Paiue. On the first appeal Mr. Justice
From what has preceded it is obvious that the judgment of this court, heretofore rendered, settled forever every question legitimately included within and covered by it, for now, at least, the principle of estoppel by former judgment must prevail and govern absolutely. In the words of the learned chief justice in Lathrop v. Knapp, 37 Wis. 312: “ Judgments are, as it were, the words of the law and are received as truth.” Such words are infallible between the parties, and for the case and court, and for all courts.
The foregoing covers the question of the force of the rule of former adjudication. A few words now as to the scope of the principle. Respecting the existence of such general principle there can by no disagreement. It is a hedging in of the principle by my brethren, within limits not justified by well-settled law, as I view it, to which I dissent. It will not do to merely say that the ohl/y question settled on the former appeal is that the complaint states a cause of action, and that the question here is whether the facts found by the cou/rt prove the existence of a watercourse. True, whether the complaint stated a dause of action was formerly the issue, but that included all questions necessarily within that issue and determined in order to reach the decision which was rendered; not merely the questions which we may say were necessarily within the issue, but all questions which the court, by its construction of the pleading, considered within the issue. Wells, Res Adjudicata, § 217. "Every proposition assumed or decided by the court, leading up to the final conclusion, and upon which such conclusion was based, was as effectually passed upon as the ultimate question which was finalty solved.” Trustees of School Dist. v. Stocker, 42 N. J. Law, 115. That is to say, none of the grounds upon which the decision rests, which were assumed by the court to be
Tbe doctrine of estoppel by former adjudication I have discussed at some length. From my standpoint it is justified, because, in my judgment, tbe opinion of my brethren of tbe majority clearly violates such doctrine, and because it is considered well settled in our jurisprudence that, though a decision be wrong and great hardship may flow therefrom, it is far better that it stand than that such uncertainty exist as would necessarily grow out of a system whereby a matter adjudged one way one day may be adjudged another way tbe next, between tbe same parties, on tbe same facts, and in tbe same case and court. Hence, a judicial decision once made on a question of law, unless manifestly wrong and challenged for review before important interests have grown up under it, is considered not open for discussion, even where it subsequently arises between other parties; and when between tbe same parties, on the same facts, it is for
It follows from what has preceded that the grounds upon which the court rested the decision on the former appeal are essentially a part of such decision. They are included in it and are as effectually the law of this case as the judgment they support. Therefore, we must examine the complaint and the opinion of the court and thereby determine what points were made to sustain the defendants’ contention that it did not state a cause of action and the grounds upon which such points were overruled by the court.
If anything was decided on the former appeal, it was distinctly held that if water issue from living springs and flow constantly in a well-defined channel, having a bed and banks for a considerable distance, and then disappear under the surface, and at a considerable distance from such point of disappearance reappear and flow on in a well-defined channel, with bed and banks, it constitutes a watercourse continuous from the point where the water first comes to the surface at such springs; and the law respecting the rights of riparian owners to have such water flowing in such watercourse come to and pass over their lands without interference by any person above them on the stream, applies; that, notwithstanding the disappearance of the water at a point above a lower riparian owner and its flowing under the surface for a considerable distance, or even a greater part of the distance between its source and such riparian owner, so that in
1. Above plaintiff’s land there were always living springs discharging their water in a well-defined stream into a lake; therefore, we have unquestionably a watercourse. 'What becomes of it after such disappearance ?
2. From the lake the water flows upon and beneath the surface of the lands lying southeast of the lake to and across the lands of plaintiff, and then easterly into Beaver Creek, the distance being but a few miles.
3. Notwithstanding the complaint alleges that the water, in passing from Big Lake to plaintiff’s land, flows, in places, Avholly under the surface, it has none of the characteristics of mere surface water, but all the characteristics, within the principles of law discussed, of a running stream.
4. The natural flow or stream from the lake was well defined and established, and in places, one of which was upon plaintiff’s land, it had made a plainly marked channel, showing the natural flow of the water.
5. Thereafter, discussing the question of whether it was necessary that there should be a visible flow of water upon the surface in order to preserve its character as a water
From the foregoing it is obvious that the court understood, as the fact was, that the complaint charged as facts, relied upon to show that the water which plaintiff contended constituted a running stream and watercourse, coming naturally to and passing over his land, that such water came first from living springs above Big Lake, then flowed continuously in a well-defined channel for some distance to and into such lake; that it flowed out of the lake in a well-defined channel for some distance to the southeast and then disappeared in the swamp; that such point of disappearance was a considerable distance above plaintiff’s land, and that, from such point to such land, it flowed ordinarily, in most places, under the surface and through the marsh and swamp in such a way as not to be visible on the surface as a running stream; that further down the water came to the surface and was gathered naturally into a well-defined stream and flowed on into Beaver Creek; and that the question of whether the complaint stated a cause of action turned on whether the fact that the water above plaintiff’s land spread out over the marsh and swamp and percolated through the soil and under the swamp and through the peat and moss, destroyed its character as a watercourse, commencing at the spring above Big Lake and reaching to Beaver Creek below such lands. That was the question discussed and decided,
By tbe foregoing we-have clearly shown:
First, that whatever was decided on tbe former appeal, and was deemed necessary to tbe decision of tbe court when made, including tbe grounds upon which tbe court reached sucb decision, must ruLe tbe case now; that our duty ends, so far as tbe law of this case is concerned, when we determine what was decided.
Second, that it was there beld that if the facts were that water issued from living springs and flowed through a well-defined channel to Big Lake and out of sucb lake to a point where it spread out over tbe marsh and disappeared beneath tbe surface and percolated through tbe moss and peat forming tbe surface of sucb marsh or swamp, and • at a considerable distance below sucb point of disappearance water appeared, having all tbe characteristics of a visible, running stream, and tbe water at sucb lower point can be identified as tbe same water that disappeared above, then that above and that below belong to one and the same watercourse.
It remains to be seen whether tbe facts alleged in the complaint, beld to constitute a cause of action, were found to exist by tbe trial court, and, if so, whether sucb findings can be disturbed as against tbe clear preponderance of tbe evidence. If these questions are resolved in plaintiff’s favor, be is entitled to sucb relief as will protect bis rights as a riparian proprietor, as against’ tbe defendants, who insist on diverting tbe water from tbe alleged watercourse, so as to prevent its reaching bis land.
It would seem that argument is unnecessary to demonstrate that the facts thus found are precisely those which this court said in the former decision are the essential elements of a watercourse, and that to incumber this opinion with argument in that regard would be a mere work of supererogation. The learned circuit judge obviously followed the decision with scrupulous care. The language of the complaint, and of the decision of this court as to its sufficiency, •are copied substantially into the findings. In the light of this, having from the evidence traced the water from its source to where it flowed out of Big Lake to the southeast and spread over and disappeared in the marsh, and found from the evidence that it flowed on from such point of disappearance in most or all places through the moss and peat and under the surface to where it assumed the shape of a visible stream below plaintiff’s land, and that the conditions shown by the evidence demonstrated conclusively that the water which formed a visible, flowing stream below plaintiff’s land was the same water that flowed out of Big Lake to the southeast, the trial court could not come to any. other
It only remains to be seen whether the findings of fact are against the clear preponderance of the evidence, for if not, certainly, by a rule as firmly established as any in our jurisprudence, they cannot be disturbed, and plaintiff is entitled to substantial relief, as it is conceded that if the facts establish an ancient watercourse the canal has taken its place.
A brief review of the evidence will amply sustain respondent’s claim that the findings cannot be disturbed under the rule above referred to, and demonstrate clearly that no other conclusion could reasonably have been reached. There is evidence in abundance that before the building of the canal, in times of high water, there was a perceptible surface flow through substantially the whole distance from the lake to plaintiff’s land, and that when the canal was dug it was located with reference to the inflow of water from the lake, as indicated by water flowing upon the surface in many places. Professor Conover, one of the surveyors, testified to the existence of depressions indicating the flow of water all the way to plaintiff’s land; that he followed such depressions down from the lake and examined the indications closely; that the water which flowed out of the lake to the southeast and then spread out over the marsh flowed southeast to, and the greater part of it passed over, plaintiff’s land; and that the canal entirely intercepted the natural flow, so plaintiff could not receive any of the water except by way of such canal. In respect to the depressions showing the natural channel he said that some of them were as long as 300 feet or perhaps longer, with sharp-cut edges along which grass lay, just as though a current had swept it there; that near the north line of Mr. Case’s land there was a channel 300 or 400 feet long. Samuel E. Crabbe, another engineer, who spent a large amount of time upon the land, testified,
There is a large amount of other evidence in the record of the same general character, and evidence from several persons who were familiar with the country before the construction of the canal, to the effect that there was then an unmistakable flow of water from the lake to plaintiff’s land. Mr. Brooks testified that he visited the country as early as 1873; that the inlet at the lake was then two or three rods wide; that the water was running out of the lake to the southeast in a considerable body, the widest channel being as wide as twelve feet; that in 1875 he was on the ground again and followed the open channel half a mile and traced it substantially to plaintiff’s land; that he could then follow the channel by walking in the water; and that in 1876 he again traced the water over the same course. Mr. G-. W. Hancock testified that in 1882 he traced the watercourse from the lake down to and across plaintiff’s land. Mr. Rhodes, who helped dig the canal, testified that when they were digging the main water supply came from ahead, from toward the lake, and that they had difficulty at times, by reason of the peat at the bottom of the ditch rising up; that when they got near to the lake the flow of water was very strong.
Evidence of like character to that specially mentioned, altogether making a very strong case, appears in the record,
As this case, except as to the nature of relief to which plaintiff is entitled, turns on the questions above discussed, it is not deemed advisable in this opinion to go further. Enough has been said to show clearly our views on the main question. The law of the case was settled on the former appeal. "Whether right or wrong, we cannot change it either directly, by now holding to a different rule, or in effect, by fencing in the principles there laid down within narrow limits, not warranted by the plain meaning of the court or the well-settled rules governing the subject. The trial court found in favor of plaintiff as to facts alleged in the complaint, which this court said made a case entitling plaintiff to substantial relief as a riparian proprietor. The evidence abundantly supports such finding-; hence, though the relief granted may be excessive, plaintiff is at least entitled to a judgment that will preserve to him, so far as practicable, all the advantages of the flow of water from Big Lake to his land, as the same was wont to flow before the construction of the canal.
Concurrence Opinion
I concur in the dissenting opinion of Mr. Justice Maeshall in this case. I concurred in the decision of this court in this action on the former appeal, and the
There is no claim or pretense that the water in question was mere surface water. All agree that it had its source in living springs, and that water flowed therefrom. The dispute has been as to the direction in which it flowed, and as to whether such flow was in a defined channel. In the first of the cases cited, it is expressly held that “ water which has a definite source in a spring, and takes a definite course, is a watercourse, which cannot be lawfully diverted from its natural channel so as to injure another’s land, although at a certain point it spreads over marshy ground, without a defined channel, where it again flows in such a channel.” In the second case thus cited, it was held that “ the fact that a stream widens into a marsh or swamp will not deprive it of its character as a natural watercourse, if it continues its current through the swamp, and finally emerges therefrom in a well-defined channel.” Numerous other authorities might be cited to the same effect. Gillett v. Johnson, 30 Conn. 180; Macomber v. Godfrey, 108 Mass. 219.
The principle upon which such decisions rest has become elementary. A well-recognized author on the subject states the same principle of law thus: “If a well-defined, natural stream empties into a swamp or lake where all definite channel is lost, and emerges again into a well-defined channel below, it is a question of fact, dependent upon the extent of the
I have no purpose here of rearguing the questions so well covered by my Brother Marshall. In my judgment, the-findings of the trial court and the evidence in support of them, as well as the allegations of the complaint, bring the-case squarely within the elementary rule of law stated. To my mind, the former adjudication in this same case is res-acljudicata, and absolutely binding upon the court, regardless of its merits. To say that this adjudication is not repugnant to the decision upon the former appeal is, I respectfully submit, to disregard the maxim that, where two things are each equal to the same thing, they are necessarily equal to each other. This statement is sufficient to disclose myposition in the case, and I have no purpose to say more.
The respondent moved for a rehearing, and on December 10,1897, also moved to set aside the judgment.
In support of the latter motion there was a brief by La Follette, Harper, Roe & Zimmerman, attorneys, and James G. Flanders, of counsel, and oral argument by Mr. Flanders. They argued, among other things, that Justice Newman was disqualified to sit on the hearing of the appeal. Orton v. Noonan, 31 Wis. 297; State ex rel. Ambler v. Hocker, 25 L. R. A. 114, 119; Newcome v. Light, 58 Tex. 141; Van Arsdale
A. P. Bushnell and F. W. Hall, in opposition.
The following opinions were filed February 8, 1898:
A motion is now made in this case to vacate the judgment rendered in this court upon the last appeal upon the ground that the late Mr. Justice Newman was disqualified to participate in the decision, under sec. 2580, R. S. 1878, which reads as follows: “No judge of an appellate court . . . shall decide or take part in the decision of any cause or matter which shall have been determined by him, while sitting as a judge of any other court, unless there shall not be a quorum without him.” This provision of law has been upon the statute book since the enactment of the Revised Statutes of 1849. Sec. 21, ch. 87, R. S. 1849. It has been uniformly' acted upon since that time without question, nor is its validity questioned upon the present motion. It is manifestly founded upon the idea that in an appellate court the parties are entitled to have a hearing before a bench, none of whose members has previously passed upon the matter in issue, or upon any material part thereof. Whether it be a wise provision or not, it is certainly a provision intended to operate in the interest of fairness and justice, and we see no ground upon which its validity can be impeached. Similar provisions exist in a considerable number of states, and the
The act in question being valid, the fundamental question upon this motion is, Did Justice Newman, while upon the circuit bench, determine this cause, or any essential part thereof ? The action was brought by a lower proprietor to restrain certain upper proprietors from diverting the flow of water in a certain ditch, on the grounds (1) that the ditch was, in fact, a natural watercourse, or had taken the place of an ancient watercourse, and (2) that the plaintiff had acquired the right to have the water flow through the ditch by the terms of a parol contract with the defendants’ grantors, which had been fully executed. While upon the circuit bench, Judge Newman sustained a general demurrer to this complaint. Upon appeal to this court from that order, the complaint was held good by a divided court, upon the ground that the allegations of the complaint, fairly construed, charged the existence of a natural watercourse; but the question whether any rights had been acquired under the alleged contract was left undecided. Case v. Hoffman, 84 Wis. 438. The case then went back to the circuit court, and was tried before Hon. W. F. Bailey, circuit judge, who made findings to the effect that there was an ancient natural watercourse, which now flows in the ditch, and is substantially the same stream, and also that the oral contract was entered into and executed as alleged in the complaint, and entered judgment for the plaintiff restraining the defendants from diverting the flow of the water, and commanding them to maintain the ditch as it now exists. Upon appeal to this court from this judgment the late Mr. Justice Newman sat with the court upon the hearing, and participated in the decision, and wrote the majority opinion reversing the judgment below.
It will, we think, be readily understood that the question now raised as to Justice Newman’s alleged disqualification
The profession will at once appreciate that this objection (at least when not raised at the bar) is peculiarly an objection personal in its nature, and one which has generally been considered and decided for himself by the justice whom it is supposed to affect, and not by his colleagues. The argument having passed with no mention of any objection, it may well be that it did not appeal with any substantial force to the mind of Justice Newman. However this may be, the case came to him to write in its natural order, in accordance-with the established custom of the court; and with his accustomed desire to do his whole duty as a member of the court he took it, and labored upon it long and conscientiously. Upon what line of reasoning he considered and de
There is, however, another element in the case, which he-seems not to have considered, or, if he did consider it, seems, not to have appreciated its true bearing. The plaintiff' claimed a right to the uninterrupted flow oí water, not only upon the ground that there was a natural watercourse, but upon the ground of a fully executed farol agreement for such flow with the defendants’ grantors. When Judge Newmab, upon the circuit bench, decided that the complaint stated no cause of action, he necessarily decided not only that no watercourse was alleged, but that the alleged agreement was worthless. When the case came here after trial, the trial court had found upon sufficient evidence that the alleged parol agreement was made as alleged, and granted judgment for the plaintiff after finding this fact as well as the fact that there was a natural watercourse. It was necessary, therefore, for this court to decide whether that agreement was of any validity, and that question was considered and decided, as. appears by the opinion. It seems clear to us all that this was precisely the same question which arose upon the demurrer. Upon demurrer the question upon this branch was whether the agreement alleged was binding; upon final hear
At common law it was recognized that a judge who was interested in the action or of kin to either party was disqualified from sitting in a cause, notwithstanding this rule, however, his judgment in the cause was generally considered erroneous only, and not void, and the objection might be waived by the parties, either expressly or impliedly, by proceeding without objection to the trial knowing the facts. Freeman, Judgments, §§ 144, 145; Moses v. Julian, 45 N. H. 52; S. C. 84 Am. Dec. 114, and cases cited. Where, however, it is expressly declared by a constitutional or statutory provision that in a certain specified case a judge shall not sit, or shall not act, or shall take no part in the decision, the almost uniform current of authority is to the effect that any judgment rendered by such judge in such a case is coram non judice and void, and that express consent will not aid it. Freeman, Judgments, § 146, and cases cited; Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114 (see note, p. 130). The same rule has
The rule seems to us to be founded upon reason and justice, and in fact to be the only safe rule to follow. It may seem that it was not followed in the case of Walker v. Rogan, 1 Wis. 597. In that case two out of three of the justices of this court were disqualified from acting because they had been of counsel in the case, and the parties stipulated that the remaining justice might hear the case and decide it, which decision should be entered as the decree of the court. The justice so named did hear and decide the case without assistance from the other justices, but upon rendition of judgment the other two justices sat pro forma, in order to make a quorum, without other participation of any kind in the case. The presence of at least one was necessary in order to make a quorum of the court which could pronounce judgment. Under these circumstances the stipulation was held binding, and the decree valid. The stern rule of necessity may, perhaps, justify this holding, because there seems no other way in which judgment could have been pronounced in the case until there was a change in the personnel of the bench, which might not be for years. The case is manifestly not the case before us now, and we certainly shall not ex
Our conclusion is that the judgment must be vacated and the cause reargued. This conclusion renders it unnecessary to consider the.motion for rehearing, which has'also been made by the respondent, as the cause will be reargued pursuant to the order entered upon this motion. No costs will be granted either upon this motion or upon the motion for rehearing.
By the Court.— The judgment in this court is vacated, without costs, and the cause is ordered to be reargued.
Concurrence Opinion
Marshall, J.
I concur in what is said by the Chief Justice.
The cause was reargued May 30, 1898.
For the appellants there was a brief by Bushnell, Rogers & Hall, and oral argument by A. B. Buslmell and F. W. Hall.
For the respondent there was a brief by La Follette, Harper, Roe & Zimmerman, attorneys, and James G. Flanders, of
The following opinions were filed June 23, 1898:
The facts upon which this litigation is founded are sufficiently stated in the opinions heretofore written in this case. This case made its first appearance in this court in 1893, on an appeal from an order sustaining a demurrer to the complaint, and is reported in 84 Wis. 438. The decision in the court below was made by the late Justice Newman, who was then presiding at the circuit. The order of the circuit court was reversed, and the cause remanded for further proceedings according to law. Issue was joined by proper answers, testimony was taken, and findings and judgment were entered for plaintiff. Erom this judgment, part of the defendants, feeling aggrieved, took this appeal. The case was argued at the January term for 1897, and on September 28th of that year a decision was announced, by a divided court (Justice Newman casting the deciding vote and writing the opinion), reversing the judgment of the court below. A timely motion for a rehearing was made, and subsequently a motion to vacate the judgment so entered was submitted, the grounds of which sufficiently appear in the opinion of Mr. Justice "Winslow, reported herewith. The former judgment was vacated, and a reargument of the case ordered. Additional briefs have been submitted, and the court has again been favored with a restatement of the claims of the respective parties from able counsel. The case now comes for final determination upon the merits. The plaintiff insists that a judgment of affirmance should be entered, because when the case was first heard the justices who were qualified to hear it were equally divided as to the merits of the case, and a judgment of affirmance under the rule should have been entered. It is needless to say that such judgment was not entered. The judgment that was entered
At the outset one thing must be noted, and that is, so far as applicable to the facts established on the trial, the decision first rendered upon the demurrer must be considered the law of this case. Whether good law or bad law, it is, and must remain, the law by which this court must he guided in all its future action in this case. We shall not indulge in any hair-splitting refinements, or in any effort to discover a. double interpretation to he given the former decision. The issue raised by the demurrer, giving the language of the complaint its usual and ordinary interpretation, was whether it described a watercourse to and over plaintiff’s land. The facts were set out in detail, and the court considered them in the light most favorable to the defendants’ present contention. Upon such consideration it was then decided that a watercourse was described, “ although it showed that the stream spread over wide reaches of marsh and swamp lands, and percolated the soil in many and most places ” between its source and the place where it was again collected into a well-defined stream. Whether this determination is supported by authority, or whether it is “ absurd or inconsequential,” it is not our present purpose to inquire. It is the law of this case in plain and unmistakable language, and by which we must be governed.
By reference to the findings of the trial court, we find that he has followed with great fidelity the facts set out in the complaint. He finds that under natural conditions the
The findings of the court in regard to the so-called Goodyear contract cannot be successfully impeached. There can be no doubt but that such a contract was made, that it was founded upon a valuable consideration, and that, so far as the plaintiff’s use of the water from the canal is concerned, his rights were open, visible, and notorious. The findings seem to be strictly in accord with the great weight of the evidence, and with all the probabilities of the case. At the time the defendant Hoffmam, made his alleged purchase of the Goodyears’ interest in the canal, he found this contract so far executed that the lateral waste-water ditch had been dug to the eastward, and plaintiff had tapped the main canal, and was in the enjoyment of a supply of water therefrom for the purpose of cranberry cultivation. The main canal had been dug across plaintiff’s land without his consent, and the great volume of the water that came to his land naturally had been diverted to the south. In times of high water, large quantities of logs and débris escaped from the canal, and were deposited upon plaintiff’s land. The plaintiff had made a claim for damages by reason thereof. He then agreed to permit the canal to remain where it had been constructed, and to forego the claim for damages; and the Goodyears built the waste-water ditch to the eastward, and from which the plaintiff was to receive so much water as was rea
The court’s findings establish the fact that the canal in question became a substitute for a natural watercourse, and that plaintiff was entitled to receive therefrom so much water as was reasonably necessary for cranberry cultivation on his land, under the limitations stated. He required the plaintiff to construct and maintain a waste gate on his land, as an outlet in times of flood. He enjoined upon the defendants the duty to restore the waters to the canal as originally
As successors to the Goodyear interests, the defendants were only chargeable with such notice of the plaintiff’s rights as the actual situation presented. So far as we can discover, there is no evidence that defendants had actual knowledge of the terms of the contract between the Goodyears and plaintiff. Finding plaintiff in the actual enjoyment of certain rights and privileges in the canal which were open, visible, and notorious, the defendants, in equity, were bound to respect those rights as they appeared, and to make due inquiry as to their duration and extent. There is nothing in the Goodyears’ contract with him that compelled them to a perpetual maintenance of this canal. Nor, as we understand it, does the proof show that defendants are the owners of all the land through which the canal flows before it reaches the plaintiff’s land. The Goodyear franchise (ch. 271, Laws of 1883), by its terms, gave them the power to handle, own, and control the canal for the term of ten years from the passage of that act. At the expiration of that time the right to collect tolls for floating timbers thereon ceased. There was no implied obligation to keep up and maintain the ditch on their part after the expiration of this period. Hoffman succeeded to the rights of the Goodyears in October, 1889. By the instrument of assignment, Hoffman took the “ rights, franchises, privileges, obligations, and duties conferred, granted, and imposed ” on them by virtue of the act of 1883; and he also agreed with
By the Court.— That part of the judgment which is contrary to this opinion is reversed, and the judgment in all other respects is affirmed, and the cause is remanded for further proceedings in accordance with this opinion. No costs are allowed to either party, except that the respondent shall pay the fees of the clerk of this court.
I do not intend to add materially to the literature of this unfortunate case, but simply wish to record my dissent from the principal conclusions which have now been reached by the majority of the court. In my opinion, there is no satisfactory evidence in the case which sustains-the findings of the trial court upon the main question of an ancient watercourse. Granting, as I cheerfully do, that the decision upon the demurrer to the complaint is the law of this case, I still do not think that a watercourse was shown within that decision. The evidence shows, to my mind, simply a vast marsh, miles in extent, into which waters from Big Lake oozed, and surface waters collected, permeating the soil, and became practically stagnant and lifeless, forming a vast expanse of bog, moss, and slime. Out of this swamp, also, waters oozed at other places towards the east; but to say that it was a watercourse is, to my mind, simply a contradiction of terms. By the same reasoning there is scarcely a marsh in the state which could not be converted into a watercourse, and the owners subjected to all the duties and limitations which devolve upon the owners of the banks of a watercourse. Nor can I subscribe to the idea that the oral contract with Goodyear fastened a perpetual servitude
I am authorized to state that Mr. Justice Pinkey concurs m these views.
A motion for a rehearing was dismissed September 20, 1898.
Concurrence Opinion
I concur in the opinion filed by my Brother Winslow, setting aside the judgment entered in this court in this case, and all that is therein said in praise of our late Brother Newman. It logically follows from my opinion and the opinion of Mr. Justice Maeshall, filed upon the hearing upon the merits, to the effect that the questions presented upon this appeal were substantially the same as determined by this court when the case was here upon the former appeal (84 Wis. 438), that the trial judge from whom that appeal was taken was, under the statutes, incompetent to take part in the decision of this court upon any branch of the case upon the last appeal.