Chippewa & Flambeau Improvement Co. v. Railroad Commission, 164 Wis. 105

164 Wis. 105 | Wis. | 1916

WiNsnow, O. J.

It was frankly admitted by appellant’s, counsel upon the oral argument that by organizing under and accepting the rights and privileges granted by the water-reservoir act (ch. 640, Laws 1911) the appellant had submitted to such supervision and control by the Railroad Commission as that act (under reasonable and proper construction) provided for, but it was strenuously contended that the present order was not within the powers granted to the Commission by the act, or, if within the powers nominally granted, that such powers could not be constitutionally granted, for various reasons which will be discussed in this opinion.

The first question which naturally presents itself in the case is whether ch. 640 authorizes the Commission to consult the property interests of riparian owners upon the reservoir lakes, and make an order fixing levels at a height which will arbitrarily reduce the reservoir capacity, simply for the purpose of preventing injury to said riparian property. The argument is that the law has one dominant and controlling purpose, namely, the creation of reservoirs at the headwaters-of the rivers named, for the purpose of accumulating great stores of water in wet periods and gradually letting it out during dry periodp, so that there may be as nearly as practicable an uniform flow of the rivers, thus doing away with disastrous floods and insuring to water-power owners below a supply of water during the entire year.

The argument is well and strongly made. Certainly, this must be conceded to be the primary purpose. There is, however, language that seems to indicate that the storage of water in as large quantities as possible is not the sole purpose, but that the legislature had also in mind the general welfare on all of tbe waters covered by tbe act; and by “all of tbe waters” we mean not merely tbe Cbippewa and Flambeau rivers proper, but also tbe small lakes in question here wbicb abound at tbeir headwaters, and really are merely enlargements of tbe rivers themselves. Thus tbe title to tbe act declares that tbe reservoirs to be constructed are for tbe purpose of producing a uniform flow of water in the rivers named and tbeir tributaries “and thereby improving tbe navigation and other uses of said streams and diminishing the injury to property both public and private.” Again, at the close of the-first subdivision of sec. 1 power is given to clean out, deepen, or otherwise improve any of tbe rivers or tributaries in order-to improve tbe navigation thereof and to prevent injury to property bordering on said waters. So at tbe close of sub. 1 of sec. 2, after stating tbe fundamental purpose of tbe authority granted, there is added, “tbe purpose of improving-tbe usefulness of said streams for all public purposes, and of diminishing tbe damage and injury by floods and freshets to-property, both public and private, located along said waters;” while in tbe second subdivision of tbe section it is made tbe duty of tbe plaintiff to so operate its works “that tbe purposes aforesaid shall be accomplished to the greatest practical extent and so that as nearly a uniform flow of water as practicable shall be maintained at all times and at all points . . . ; and during tbe times when it may be found impracticable to maintain at tbe same time such uniform 'flow of water throughout tbe entire length of said rivers, tbe upper portions of said rivers shall be given preference.”

There seem in these provisions to be quite plain indications that tbe legislative thought included other public purposes than tbe mere storage of immense quantities of water for creation of power, and that it was appreciated that there might well arise a conflict between tbe various purposes, in wbicb event all the public interests were to be recognized and protected so far as practicable.

We do not find it necessary, however, to decide this question. While this application was pending before tbe Railroad Commission cb. 380 of tbe Laws of 1915 was passed, and it was stipulated that tbe Commission might proceed to a determination of tbe matter with tbe same effect as if tbe proceeding bad been commenced after that act became effective. We have therefore to consider tbe effect of that act (sec. 1596 — 2, Stats. 1915), tbe material portions of which have already been set out in tbe statement of facts.

It will be remembered that tbe right to repeal or amend at any time was specifically reserved in tbe law under which tbe plaintiff was organized and is acting, viz. cb. 640, Laws 1911. It is true that repeals by implication are not favored and that acts directed to a special subject are generally to be given effect rather than a general act; yet it is equally true that where tbe legislative intent to make tbe general act controlling is apparent it will be given that effect. Gymnastic Asso. v. Milwaukee, 129 Wis. 429, 109 N. W. 109. In tbe present case tbe act of 1915 seems unquestionably intended to apply to all dams in tbe state. A general policy applicable to all tbe navigable waters of tbe state was there announced, and we can entertain no doubt of tbe intention to make it applicable to tbe reservoir dams operated by tbe plaintiff. This act gives ample and broad powers to tbe Commission to regulate and control the navigable waters of tbe state and to fix tbe maximum and minimum levels that may be maintained “by any dam heretofore or hereafter constructed” “in tbe interest of tbe public rights” or “to promote safety and protect life, health and property.”

Here tbe legislature has performed tbe legislative function by declaring that water may not.be maintained in any dam in navigable waters at a level which is injurious to tbe public rights in such waters, or which threatens safety, or imperils life, health, and property. Having enacted this general law, tbe legislature has endowed the Railroad Commission with power to investigate and ascertain tbe facts and to make such regulations and orders as may be necessary to carry into effect tbe law in concrete cases.

That this may be lawfully done, and that legislative power is not thereby delegated nor judicial power conferred, are propositions too well established to admit of doubt. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905; Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209. It has always been and still is the function of a jury to fix the reasonable height of a dam erected under the general milldam law (ch. 146, Stats.), and it has never been, supposed that in exercising this function a jury was exercising legislative power.

The question arises whether the plaintiff has shown itself possessed of any vested property rights under and by virtue of the Henry franchise, and its purchase of the dam from the assignee of Henry, which have been specifically preserved under the provisions of sub. 2, sec. 1, ch. 640, aforesaid. This section in effect preserves to the plaintiff, on its purchase of an existing dam, all franchises and flowage rights, either perfected or inchoate, possessed by the former owner at the time of the sale. It may be noted in passing that two typographical errors appear in this section as printed in the session laws. The writer has examined the original act as preserved in the office of the secretary of state and has caused the section to be correctly printed in the statement of the case herein, the two words which are erroneously printed in the session laws being printed in italics in the statement.

It seems very clear that the burden of proof is on the plaintiff to show that it possessed such rights with relation to the dam in question. There would be no presumption in its favor. We are well satisfied that the plaintiff did not show that its assignor possessed the necessary flowage rights to entitle it to maintain this dam for reservoir purposes, either by condemnation, ownership of the flowage lands, or by prescription. So far as condemnation is concerned there was an entire absence of evidence. As to ownership by purchase, one witness testified that the Chippewa Lumber and Boom Company owned land abutting on the reservoir, that it bought about 4,200 acres there in 1900, and that when it sold the lands it reserved flowage rights. How much of this land abutted on the reservoir is nowhere stated, and it appears affirmatively that there are large tracts of overflowed riparian property owned by third persons. The possession of flowage rights on a part of the shore certainly gives no right to flood that part of the shore owned by others. It may be remarked that the plaintiff obtained its title to the dam from the Chippewa River Improvement and Log Driving Company, and that it is established in the case that this latter company purchased the franchise of Henry in 1888 and built the dam owned by it until 1912, when it was purchased by the plaintiff. Nowhere does it appear that the Chippewa Lumber and Boom Company, which is said to have owned the flowage rights, ever owned the dam or transferred any rights to the plaintiff. However, we assume that this is a mere confusion in names and that in fact the plaintiff’s grantor is the corporation which was the owner of the flowage rights testified to by the witness.

But it is said that rights of flowage have been obtained by prescription which are preserved to the plaintiff by the section of ch. 640 last quoted. In considering this claim it is always to be borne in mind that prescriptive rights in an easement are commensurate only with the actual enjoyment of the easement. Angell, Watercourses (7th ed.) §§ 224, 379; Washburn, Easem. & S. (4th ed.) 135; 14 Cyc. 1200; Koenigs v. Jung, 73 Wis. 178, 40 N. W. 801; Darlington v. Painter, 7 Pa. St. 473; Hart v. Chalker, 5 Conn. 311.

If the water of a dam is kept up only during certain months of the year for the full period necessary to create a prescriptive right, the owner of the land being in possession at all other times, no right will be thereby acquired to keep the water up during tbe remaining months. Carlisle v. Cooper, 21 N. J. Eq. 576; Marcly v. Shults, 29 N. Y. 346. The resulting prescriptive easement is confined to the months during which the level has been maintained. Swan v. Munch, 65 Minn. 500, 67 N. W. 1022.

The idea is that the adverse use of land for a certain three months of each year for a series of years, while it may give a prescriptive right for those months, does not give any prescriptive right during the other nine months of the year.

A log-driving dam is not built for storage purposes or for keeping a constant head of water during the year, but for the raising of a head of water in the early spring and immediately using such water in successive rapid miniature floods during the spring months. The reservoir dam is built for the purpose of storing up a great quantity of water during the spring and conserving it for gradual depletion during the summer season. In the one case the normal situation is that the dam is empty at the beginning of the summer and so remains, while in the other case it is full at the beginning of the summer and remains so, subject only to slow reduction when it becomes necessary to supplement the natural flow of the river which has become lessened by long continued dry weather. These uses are practically the antitheses of each other. The testimony in this case affirmatively shows that during the busy logging years and up to 1901 the water in the dam reached the maximum head of about sixteen feet in April and by the 1st of July was down nearly or quite to the natural level. Sometimes there was some' accumulation of water during the summer, but only in case the summer was wet, and even in that case it does not appear that during the summer months any head exceeding eight feet and six inches was ever reached, much less maintained. The testimony also shows practically the same condition from 1901 until 1912. During the earlier years of this later period the maximum level reached in April was about thirteen feet and during the later years about ten or eleven feet. From July 1st to October or November tbe water was generally drawn down nearly or quite to its natural level, while tbe level during tbe rest of tbe year does not appear.

Tbe plaintiff contends tbat tbe purpose of ch. 640, Laws 1911, is (quoting from tbe brief) “tbat tbe flow of water in tbe river below tbe reservoir shall be kept as nearly uniform as practicable at all seasons of tbe year.” Granting tbat this is tbe purpose, it is plain tbat tbe supposed prescriptive right of flowage does not in any way help to attain tbat purpose, but is in fact inconsistent with its attainment. To accumulate water in April in order to expend it riotously in May and June is absolutely destructive of tbe usefulness of tbe dam as a reservoir. The plaintiff is here as tbe owner of a reservoir dam, not a log-driving dam. It claims tbat this dam is devoted to “a specific public use, i. e. obtaining as nearly as possible a uniform flow of water in tbe Flambeau and Chippewa rivers below tbe dam.” To attain this public purpose it must necessarily store up water in wet seasons in order to gradually dole it out in long periods of drouth. If any prescriptive rights to flow lands were obtained by tbe owners of tbe dam before its purchase by tbe plaintiff they were not rights to do this, but rights to acquire a maximum bead of water in April and reduce it to zero by July 1st.

By accepting its charter tbe plaintiff doubtless bound itself to carry out tbe purposes of that charter. The prescriptive right which it now claims is a right which, if exercised in accordance with tbe use upon which it is based, would destroy the usefulness of tbe dam for tbe charter purposes, hence it can avail tbe plaintiff nothing.

It does not seem necessary to say more. When it is held that plaintiff’s charter (ch. 640, Laws 1911) was amended by ch. 380, Laws 1915, it necessarily follows, as it seems to us, tbat tbe Commission in making its order might rightfully consider the interests of riparian property owners on the reservoir area; and when it is beld tbat no prescriptive rights were obtained by tbe plaintiff when it purchased tbe dam which, can interfere with the order, it seems that all questions as to the supposed taking of property without due process of law disappear. As already indicated, there is in our judgment no invasion of legislative or judicial power in the making of the order, and we are unable to say that the order is in any way unreasonable.

By the Gourt. — Judgment affirmed.