140 Wis. 417 | Wis. | 1909
In February, 1892, the plaintiff corporation, which is the owner of the surplus water power not' needed for navigation purposes created by the Grand Ohute •or government dam in the Fox river at Appleton, brought this action in equity against the defendants, who own the ■dam immediately below the plaintiff’s dam, and known as the middle dam at Appleton, and the water power created thereby, to restrain the defendants from maintaining said middle dam at its present height, claiming that the same unlawfully sets hack the water of the river and üows the plaintiff’s lands and water wheels to the depth of thirty inches. The trial court found that there had been, prior to the commencement of this action, ten years’ uninterrupted and adverse user by the defendants of the said middle dam at the height at which it was maintained at the time of the commencement of this action, and thereupon dismissed the •complaint, holding that the actiqn was barred by subd. 3, sec. 4221, Stats. (1898), or, if not barred by this subdivision, then by subd. 4 of the same section. The plaintiff first •contends that subd. 3, above mentioned, is not applicable
1. The subdivision named places, among the actions which must be brought within ten years after the cause of action accrues, “An action for the recovery of damages for flowing lands, when such lands have been flowed by reason of the construction or maintenance of any milldam.” This section first appeared upon our statute books in 1862 as ch. 184 of the laws of that year, where it read as follows:
“No action for the recovery of damages for the flowing of lands shall be maintained in any court in this state, when it shall appear that said lands have been flowed by reason of the construction or erection of any milldam for the ten years next preceding the commencement of such action: provided, any party shall have one year from and after the passage of this act in which to commence an action for the recovery of any lands, tenements or hereditaments heretofore flowed, or for the recovery of the possession thereof, or for damages to the same.”
The argument is that when this act was passed the word “milldam” had acquired a technical and special meaning in our law by reason of the existence of ch. 56, R. S. 1858, entitled “Of mills and mill-dams” (now ch. 146, Stats. 1898), and that this special meaning was and is confined to dams authorized by said chapter, to wit, across nonnavigable streams, and that the subsequent re-enactment of the section in substantially the same words in the revisions of 1878 and 1898 as subd. 3, sec. 4221, in no way changes the original special meaning. Doubtless the result would follow if the major pi’emise were correct. R. S. 1878, see. 4985; Stats. (1898), sec. 4985. But we see nothing to indicate that the
The act is general in its terms, and purports to bar an action after ten years’ flowage by “any milldam.” A dam which is built across a navigable stream for the purpose of creating water power to operate a mill is just as certainly a milldam as one built across a nonnavigable stream.' So by its language the act covers one as well as the other. Courts certainly should not be industrious in seeking out obscure or unusual meanings to attach to statutory expressions, when the words used are plain and unambiguous and the ordinary meaning is entirely reasonable. Now, had the legislature desired and intended to confine the act to dams erected.and maintained under the milldam law (i. e. dams across non-navigable streams), the most obvious and natural thing would be to say so in direct language, and add the section to ch. 56 of the Revised Statutes of 1858, thus completing the special code governing the erection and maintenance of this class of milldams. This seems the more certain when it is remembered that there were many milldams in the state across navigable streams which had been erected under special legislative acts, and also that the milldam law, while first enacted in 1840, was repealed in 1850 and not re-enacted until 1857. During this interregnum the session laws fairly teem with special acts authorizing the erection of milldams, none of which, of course, were milldams in the technical and special sense claimed by the respondents here. It seems probable that at the time this act was passed there were full as many dams in the state which had been built outside of the provisions of the milldam law as under it. Undoubtedly the legislature knew this fact, and, so knowing, passed a law applying generally to any milldam “in the state.” Upon principle it would seem that under these circumstances this law, framed
“The language of the statute is clear, precise, and compre-. hensive, and bars every action where the lands have been flowed for ten years without any claim for damages. The statute means this, or it has no meaning whatever.”
It is true that in that case the act authorizing the dam made it subject to the provisions of the milldam law then existing, but the decision was not placed on this ground, but on the broad ground that the language covered “any milldam” or none.
In Cobb v. Smith, 38 Wis. 21, which was an action of flowage caused by a dam erected on a navigable stream .under express legislative grant, this statute of limitations was pleaded; and while it was held that the pleading showed that the use had not been adverse, still the court treated the statute as applicable to such a dam had the facts been sufficient.
2. The claim that the middle dam is not a milldam within the meaning of the word as used in the statute is based on the fact that it was built by the defendant the Appleton Water Power Company, a corporation organized for the purpose of constructing this dam “and for improving and creating water power and river lots in and near said water power and for holding and disposing of the same,” and the further fact that it has no power to operate mills and does not do so, but has sold or leased the power created hy the dam in parcels to the various other defendants for mill purposes, while retaining title to the dam itself. The argument does not appeal to us very strongly. It seems that a dam erected to create power to operate mills, which power is used exclusively to operate
3. We agree with appellant’s contention that this is not an action to recover damages, but rather an equitable action to enjoin the continuance of a nuisance, with an incidental claim for damages, but we cannot agree with the conclusion drawn therefrom to the effect that the limitation statute does not therefore apply. It is true that the law in terms only prohibits the bringing of “an action for the recovery of damages for flowing lands” after the expiration of the ten-year period, but this court has held that the effect of this statute is to confer title after the ten-year user is complete, on the principle that where (as in Wisconsin) the statute of limitations destroys the right as well as bars the remedy, that result must follow. Johnson v. Boorman, 63 Wis. 268, 22 N. W. 514. This ruling effectively disposes of this contention.
4. The contention that there is no flowing of lands within the meaning of the statute in the present case is yet to be considered. It appears that the setting back of the water by the defendants’ dam is wholly within the banks of the river, so that no lands outside of the banks are overflowed, but the dam raises the water within the banks so as to lower the available head of the water power furnished by plaintiff’s dam. Is this truly a flowing of lands ? We think it is. To
But the appellant further contends that, even if the statute of limitations be applicable to such a case, the facts proven do not bring the present case within the statute. It is undoubtedly true that the user must have been adverse for ten years prior to the commencement of the action in order to raise the statutory bar. The court found that the setting back of the water by defendants’ dam had been “uninterrupted, continuous, open, notorious, and adverse, and so as to maintain on plaintiff’s land the same water level in the same stages of water” since the completion of the dam in 1877. These words include all the elements necessary to render the statute operative. If there were any doubt as to whether the words “uninterrupted, continuous,.open, and notorious” covered the subject, that doubt would be removed by the addition of the word “adverse,” which, while it embodies a conclusion of law, is also a comprehensive statement of an ultimate conclusion of fact embracing all the elements necessary to make possession adverse. We are entirely satisfied from examination of the record that the evidence fully justified the finding of the court in this regard, and we deem it unnecessary to make any review of such evidence.
The doctrine that a tenant cannot deny his landlord’s title to the demised property during his tenancy, nor acquire a hostile title to the same while the relationship continues, is well settled. Tondro v. Cushman, 5 Wis. 279; Sizer v. Clark, 116 Wis. 534, 93 N. W. 539. The reason is that he has obtained possession by solemnly acknowledging that his landlord has title to the property leased, and hence that he is estopped by that fact from claiming that his possession of the leased property is adverse or that he has acquired a hostile and paramount title thereto.
Giving that principle its fullest weight, it does not apply here. It does not appear that the middle dam interferes in any particular with the property leased to the Atlas Paper Company prior to 1891. That property consisted only of certain lots below the plaintiff’s dam, which of themselves carried no water power, coupled with a certain specified quantity of horse power of water from the dam. ' It nowhere appears that the property so leased was at any time or in any manner interfered with or encroached upon by the setting back of the water from the middle dam. Presumptively there was an ample supply and head of water at the dam to fill the calls of the lease, even when the water was set back by the middle dam. It is not shown, therefore, that the adverse holding by the defendants was in any way hostile or injurious to the property leased by the Atlas Paper Company.
It is further said that the defendants’ dam is and was an unlawful structure because it obstructs a public navigable river without legislative authority, and hence it is argued that no right to maintain it can be acquired by prescription. This point was decided adversely to appellant’s contention in the pase of Pioneer W. P. Co. v. Chandos, 78 Wis. 526, 47 N. W.
JSTo further points require attention.
By the Court. — Judgment affirmed.