Geise v. Greene

49 Wis. 334 | Wis. | 1880

OetoN, J.

The above cases were submitted together upon one argument, and there will be but one opinion, and that filed in the first case. The positions assumed and so ably urged by the learned counsel of the appellants in support of the demurrer are: first, that the jurisdiction to try and determine this case could not be constitutionally conferred upon the county court of Dodge county; second, that such jurisdiction has not been conferred by law upon that court; third, that the Crawfish river is a navigable stream, and therefore not within the present mill-dam law; fourth, that the present mill-dam law, under which this suit is brought, is not applicable.

The first position is, of course, predicated upon the assumption that the mill-dam law makes this proceeding directly affect, and the judgment therein operate upon, the mill dam itself, and such dam is beyond the territorial limits of the county of Dodge. For the purposes of this opinion this will be conceded.

It was unquestionably intended by this court in McNab v. Noonan, 28 Wis., 434, to put at rest the question of the constitutional jurisdiction of county courts, and adopt once for all the construction of those provisions of the constitution relating to the subject which had theretofore been clearly recognized by the court, either expressly or sub silentio. The interpretation of these provisions of the constitution in so many cases was regarded as so clearly settled beyond further controversy, that in the case of State ex rel. Mann et al. v. Brophy, 38 Wis., 413, the question of the jurisdiction of the county court of Milwaukee county to issue an execution to the sheriff of the county of Oconto, and to proceed as for contempt against the sheriff of that county for willful failure to levy it upon the property of the defendant in that county, was not even raised.

It would seem that the jurisdiction of county courts could not very well be extended further than in that case, where process went to and had operation and effect in a county so distant from Milwaukee county, and the Milwaukee county court subjected to its jurisdiction the sheriff of such county for contempt. That case and the case of The State v. Smith, 19 Wis., 531, in which the question of the jurisdiction of the same court in divorce was directly raised, and in which it was held that the jurisdiction of the county court in such case depended upon the value of the property of the defendant, wherever situated, which was to be subjected to the payment of alimony, must be held to have settled the question of the constitutional jurisdiction of county courts, when conferred by law, in cases affecting persons or property beyond the territorial limits of the county.

The obvious meaning of the clause found in section 3377, R. S., “ but in no other manner,” is to limit the right of civil action for damages or compensation for lands flowed by means of a mill dam, to this form of remedy, and make it exclusive. The language of section 2465, conferring jurisdiction upon the county courts, is very broad and very plain,- and has but one exception: “ Such courts shall exercise powers and jurisdiction in all civil actions and proceedings, in law or equity, except as to actions and proceedings under chapter 151, concurrent with and equal to the jurisdiction of the circuit courts in said counties.” The exception named is foreign to the subject. This proceeding is called a “ civil action. ” in the mill-dam law. To create another exception to this comprehensive and unlimited jurisdiction, when only one is specially defined (which, by being expressed, excludes others), by mere license of construction, would be most unwarrantable, and subject the jurisdiction of a county court to an unstable and fluctuating interpretation, for the purpose of creating new and other exceptions for convenience, only limited by judicial assumption and discretion.

The closing words of the above section, “in said counties,” we have already seen, have not in other cases limited the jurisdiction of county courts to the counties in which they are held, so far as the effect and operation of their judgments and process upon persons and property outside of the county have been concerned. This jurisdiction cannot properly be called special in any sense, nor is it specially conferred upon the circuit courts by section 3377; for if the circuit court had not been mentioned, that court would take cognizance of such an action by its general and original jurisdiction conferred by the constitution, if not specially prohibited by law.

"Whether the Crawfish river is or is not a navigable stream, has been held by this court to be immaterial in such a case. Wood v. Hustis, 17 Wis., 416. The charter under which this dam was built, as in that case, expressly provides for the ascertainment of the damages according to the mill-dam law of 1840, which is specially referred to for such purpose. And this naturally leads to the consideration of the last question raised, whether the mill-dam law of 1840, for such purpose, is repealable or amendable.

It was clearly the intention of the legislature by such reference to provide for the ascertainment of the compensation and damages to the owner of lands overflowed and injured by this dam, according to the general law relating to mills and mill dams, and providing a remedy in such cases. There is no significance in referring specially to the act of 1840, because this was then the only general law upon tbe subject, and, like all other general laws relating to remedies, was liable to amendment at any time. The mill-dam law of 1840 was repealed in 1849, and restored in 185T, and has since been amended in some particulars; but it still remains the only general law upon the subject, and must be held to be “ applicable to all cases where compensation has not been made for damages sustained by the erection of any dam now maintained,” according to its express terms.

By the Court.— The order of the county court overruling the demurrer in this and the other cases, is affirmed, with costs.