198 Wis. 134 | Wis. | 1929
The following opinion was filed February 5, 1929:
The complaint alleges that the plaintiff is now and has been for many years the owner of a sawmill on the Flambeau river, located at Ladysmith; that said sawmill in times past has been largely operated upon logs brought to it
While it is not so alleged in the complaint, we take judicial notice of the fact that the Chippewa and Flambeau Improvement Company, by ch. 640, Laws of 1911, was authorized “to construct, acquire, maintain, and operate a system of water reservoirs located on the headwaters of the Chippewa and Flambeau rivers and their tributaries,” which said authority was granted “for the purpose of producing as nearly a uniform flow of water as practicable in the Chippewa and Flambeau rivers, through all seasons, by holding back and storing up in said reservoirs the surplus water in times of great supply, and discharging the same in times of drought and a scarcity of water, and thereby, and by other means, improving the navigation of said Chippewa and Flambeau rivers throughout their entire length, for boats, barges, and other water-craft, and for the running, driving,
The complaint alleges “that the only commercial navigation existing upon said [Flambeau] river is that of logging, and the acts of said defendant company have entirely destroyed the navigability of said river and made it impossible to float logs down said river.” It further alleges that the average daily flow during April and May for eleven years past, with the exception of 1925-26, according to the United States Gauging Station near Butternut, Wisconsin, has been 1391.54 second feet; that during April and May in the years 1925-26, by reason of the operation of said dams, the defendant limited the flow of said stream to 150 second feet, which was entirely inadequate for the floating of logs on said stream.
These allegations tend to indicate that navigation has been entirely destroyed on this stream, and we might be prompted to inquire whether the state may, by virtue of its trust powers over the navigable waters of the tributaries of the Mississippi river, entirely destroy navigation therein, were it not that by reference to ch. 640, Laws of 1911, constituting the defendant’s authority to construct and maintain the dams, we find the legislative purpose to be to improve and not to destroy navigation, and, especially, to improve the navigation of said Flambeau river for the running, driving, rafting, booming, storing, sorting, and delivering of logs,
Whether the complaint states a cause of action on the ground that the' majority of stock of said defendant company is owned and controlled by the Northern States Power Company, another Wisconsin corporation, the majority stock of which is owned and controlled by a foreign corporation known as H. M. Byllesby & Company, or its subsidiary, Standard Gas & Electric Company, which said foreign corporation controls, dominates, and operates the said Chippewa and Flambeau Improvement Company, we do not now decide.
By the Court. — Order reversed, and cause remanded with instructions to overrule the demurrer.
A motion for a rehearing was denied, with $25 costs, on April 2, 1929.