203 Wis. 519 | Wis. | 1931
The only question for decision on this appeal is whether the waters on the plaintiff’s lands are public navigable waters or private waters.
This court, throughout its history, has always jealously guarded the navigable waters of this state and the rights of the public to use and enjoy them. A citation of the numerous authorities to sustain this statement seems wholly unnecessary.
But, in the view we take of this case, we are not here dealing with navigable public waters but rather with waters which were heretofore found by the circuit court for Trem-
At the time such hearing was had it was the settled law of this state that no drainage district could be formed which would result in the destruction or impairment of any navigable waters. In re Dancy Drainage District, 129 Wis. 129, 108 N. W. 202 (1906); In re Horicon Drainage District, 136 Wis. 227, 116 N. W. 12 (1908); Johnson v. Eimerman, 140 Wis. 327, 122 N. W. 775 (1909). The drainage law, however, authorized the commissioners to “do all necessary acts in . . . clearing out and removing obstructions from or changing the natural course of natural or artificial channels or streams within the limits of the drainage district.” The law specifically provided that “the course of no navigable stream shall be changed unless such change will improve the
These findings and conclusions were absolutely material and important, and were just as necessary to be found, preliminary to the organization of the drainage district, as were the findings required by the drainage district statutes. Sec. 1379 — 16, Stats. 1911; Stone v. Little Yellow Drainage District, 118 Wis. 388, 95 N. W. 405. The report of the commissioners was in all things confirmed and the commissioners ordered to proceed with the work with all convenient speed.' From this order an appeal was taken to this court (Merwin v. Houghton, supra), with the result that said findings and order of the trial court were in all respects affirmed. A careful consideration of Merwin v. Houghton plainly reveals that every question raised on this appeal was considered and decided in that case. The proposed diversion of the waters
The record shows that the court carefully considered and passed upon the question of navigable waters within the district, and that it was absolutely necessary to determine that question. That such question was material cannot be doubted. This being true, it must be held that this case is governed by State ex rel. Atkinson v. McDonald, 108 Wis. 8, 16, 84 N. W. 171, in which it is said: “The point falls squarely within the rule that every proposition assumed or decided by the court leading up to the final conclusion and upon which such conclusion is based, is as effectually passed upon as the ultimate question which is finally solved. Brown v. Chicago & N. W. R. Co. 102 Wis. 137, 77 N. W. 748, 78 N. W. 771; State v. National Acc. Soc. 103 Wis. 208, 79 N. W. 220; School Trustees v. Stocker, 42 N. J. L. 115.”
The proposition that, although the waters of Trempealeau river and Pine creek have been in fact legally diverted to a new location or channel, they nevertheless remain in the old beds and must be considered as still existing there, is so inconsistent and unsound that we can neither approve nor countenance such contention. The clear effect of the judgment was to remove, or authorize the removal of, the waters
That the order entered in the Merwin Case was a judicial determination which could only be set aside on appeal, is well settled. In Stone v. Little Yellow Drainage District, 118 Wis. 388, 95 N. W. 405, it was said, page 392:
“The sections above referred to provide for an application to the court by petition for certain relief; for notification to all others likely to be affected; for the framing of issues and the trial thereof in an entirely judicial manner by the court, with or without the aid of a jury; for the rendition of decisions upon such various detail questions, and the final entry of a so-called ‘order,’ having the characteristics of a most comprehensive decree, based upon the facts as the court shall decide them to be in the light of the law as the court shall construe it. That such order or decree is the culmination of an entirely judicial proceeding we cannot doubt, nor that, as a corollary thereof, it may be enforced by the court rendering it by any or all of those processes inherent in courts of justice.”
The court further said, page 393, after referring to the necessary proceedings to obtain jurisdiction:
“From all these it results by primary legal logic that a decision upon all the facts presented and upon a construction of the law governing the situation, followed by rendition of a final order or decree in accordance with such decision and construction, was also, within the jurisdiction of the court.”
That the affirmance of the order by this court on appeal finally and conclusively settled all material matters therein litigated can hardly be questioned. That the judgment is binding upon all parties, their privies, the public, and others
It appears from the decision rendered in Merwin v. Houghton, supra, that members of the public appeared in the proceedings and asserted the public right of hunting and fishing on plaintiff’s lands. They could assert such claimed right only ort the theory that navigable waters existed there or that the change of the navigable waters to the new channel, by diversion, would destroy or impair the fishing and hunting. Those qúestions were apparently fully litigated and decided. The rule seems to be general that where some taxpayers, citizens, or members of a class appear in litigation of an issue in which all taxpayers, citizens, or members of a class are interested and have a right to appear, those appearing are deemed to represent those who have not appeared and the judgment is conclusive on all such taxpayers, citizens, or members of such class whether they have appeared or not. State ex rel. Atkinson v. McDonald, 108 Wis. 8, 13, 84 N. W. 171; Stevens v. Shull (179 Ark. 766, 19 S. W. (2d) 1018) 64 A. L. R. 1258 and note; Tallassee v. State ex rel.
In our opinion, the judgment in the drainage proceedings was in fact a judgment in rem. It determined the status of the water on plaintiff’s lands. It adjudged that the Trem-pealeau river and Pine creek were navigable and should be removed to a diversion channel and that all of the other water was not navigable. The judgment that the water remaining on plaintiff’s lands was not navigable was made after due notice and full hearing. This judgment in rem was conclusive, as we view it, not only on the parties to the action and their privies and on those represented by the parties to the action but upon the subject matter of the action and all persons who might thereafter become interested therein. The authorities are uniform that a judgment in rem is conclusive on “all the world.” 34 Corp. Jur. p. 1172; State ex rel. Atkinson v. McDonald, 108 Wis. 8, 84 N. W. 171. In the case just cited it was said (p. 14) :
“While a judgment in an action in personam is binding only on the parties of record and those claiming, under them,*531 a judgment in rem renders the subject on which it operates 'what it declares it to be’ and is consequently binding upon the world. Every person is supposed to be concerned in such an adjudication and to be constructively before the court. . . . The rule of res adjudicaba is as broad, where status is the subject upon which the judgment acts, in that it is binding upon the whole world, as it is inter partes, where mere personal rights are the subject of the litigation.”
A careful, yet comprehensive, view of the whole record, in connection with the drainage proceedings which led up to the decision in Merwin v. Houghton, supra, leads us to the conclusion that the learned circuit court which tried this action did not give due weight and proper consideration to Merwin v. Houghton, or to the matters which were in that action finally and conclusively determined. It is quite apparent that it failed, in large measure, to appreciate the holding in that case and its effect upon the non-navigable waters remaining- upon the plaintiff’s lands, but in fact relitigated the whole question as to the character of the waters upon plaintiff’s lands which had theretofore been fully determined by the circuit court for Trempealeau county and by this court.
For the reasons stated the judgment of the circuit court for Buffalo county must be reversed, with directions to enter judgment granting to the plaintiff the relief prayed for.
By the Court. — Judgment reversed, with directions to' enter judgment in accordance with this opinion.