J. S. Keator Lumber Co. v. St. Croix Boom Corp.

72 Wis. 62 | Wis. | 1888

Lead Opinion

The following opinion was filed June 20, 1888:

Cassoday, J.

The general description of the St. Croix river, as given in the answer and above stated, seems to be verified to some extent by the map. The lower end or widened part of the river is known as Lake St. Croix. The city of Stillwater is situated near the upper end of this lake, on the Minnesota side, and is some thirty miles above where the lake empties into the Mississippi. It is conceded that no part of the upper boom, mentioned in the eleventh section of the charter printed above, located between the head of Cedar Bend, eighteen miles above Stillwater, and a place called Nock Island, about ten miles further up the river, and near Taylor’s Falls, was maintained at the time of this log jam in 1883, but that the same had long before been wholly abandoned, as authorized by that section of the charter. The defendant concedes, however, that the lower boom therein mentioned had long previously been constructed, and was maintained at the time of the jam; that the foot of it was about one mile above Stillwater, and extended up to Titcomb’s Landing, about five miles above Stillwater. It is, moreover, conceded that the defendant had previously, as authorized by the section, constructed, and at the time of the jam was maintaining, certain additional booms between Titcomb’s Landing and Marine Mills, about twelve miles above Stillwater, for the purpose of holding, controlling, and securing such logs and timber as might float or be driven down the St. Croix and its tributaries. The foot of such lower boom started near the Minnesota shore. Then, after proceeding up the river about half a mile, it came to the foot of a line of bars or islands in the river, one above another, along which it followed, gradually nearing the Wisconsin shore, with an outside boom, so called, in the Wisconsin channel, until it struck Four-Mile island, and from thence it continued a mile or more further up to the upper “trip” at Titcomb’s Landiag. For the most of that distance such piling and booms were near the Wisconsin shore, with an occasional “trip” or “ gap,” through which logs or boats might pass to and from the main channel, which was mostly on the Minnesota side of the river, to what was called the “canal,” on the Wisconsin side of the river. On the Minnesota side of the river, and opposite the head of Four-Mile island, was a short boom at the head of Lyman’s slouch, which had a corresponding bar or island running down the river about a mile. Between Four-Mile island and Titcomb’s Landing was Revior’s island, about half a mile in length, with a narrow slough of the same name between it and the Minnesota shore. About half a mile above Titcomb’s Landing was a “ cut-off,” on the Wisconsin shore, leading around into one of the outlet's of Apple river and Rice lake, and thence into the canal mentioned at the upper “trip.” This cut-off, however, was only used in extremely high water. From the head of this cut-óff there ran along up the Wisconsin shore the defendant’s piling and booms to the entrance of Kelley’s slough, opposite the foot of Areola island, being a distance of about a mile. That slough ran into one of the outlets of Rice lake and Apple river, and thence into the main channel. Just above the head of the cut-off, and in about the middle of the river, was Trask’s island, about half a mile in length, with the-defendant’s piling and booms on the lower east half of it and the upper west half of it. From the head of Trask’s island there was a line of the defendant’s piling and booms running up near the middle of the river a distance of nearty half a mile, to the foot of Areola island, and thence for a short distance along the east side of it. That island was narrow, about a quarter of a mile in length, and divided the main channel of the river. Opposite the head of that island, and on the Minnesota shore, was the mouth of Page’s slough,— a crooked channel of variable width, and abont three or three and a half miles in length, and fed from the main channel. From the head of Areola island, up the main channel, to the head of Page’s slough, was about two and a half or three miles. On the east of that section of the river, and from six to ten hundred feet from it, was Rice lake, fed from the river near Marine Mills by a narrow and shallow slough. At some places the distance between Page’s slough and the main channel was over half a mile. In the spaces between them were Mud lake and Butler lake. Prom the head of Page’s slough to Marine Mills was about a mile. There is evidence tending to show that the defendant’s piling extended from the head of Areola island to the land between the main channel and Page’s slough; also at the head of Page’s slough.

It is manifest from the charter that the defendant’s booms below Titcomb’s Landing were for the purposes of storing, assorting, and delivering logs and timber to the respective owners, designated by marks, of which there appear to have been several hundred; while the several additional booms above Titcomb’s Landing were for the purpose of holding, controlling, securing, and guiding such logs into such lower booms. It appears from the evidence that, during the season of 1882, commencing May 10, 1882, and finishing September 7, 1882, the defendant ran through and turned out of its booms, near the foot thereof, logs sufficient to make 272,413,460 feet; that of that amount only about 27,500,000 were so turned out prior to June; that on some days it so turned out over 6,000,000 feet. During the season of 1883., commencing April 25,1883, and ending August 22, 1883, it ran through and turned out of its booms, near the foot thereof, logs sufficient to make 271,374,690 feet, of which over 44,000,000 were so turned out prior to June; that on some days it turned out nearly 5,000,000 feet.

It appears from the evidence that some time in the early part of June, 1883, the defendant’s booms below Titcomb’s Landing became filled with logs, containing some seventy or eighty millions feet; that the logs continued to come down the river faster than they were sorted and turned out at the foot of the booms; that, in the forepart of June, the boom from the head of Trask’s island to the foot of Areola, island was substantially closed; that when the logs had filled the channel east of Areola island to the head thereof, and about June 11,1883, a rope boom was put across to the western shore of the main channel from the head of that island, and thus very largely stopping the passage of logs below; that thereupon the steamboat and barges of Walker, Judd & Yeazie, and other water-craft, which had previously passed up and down the main channel above Areola island, continued their navigation, through Page’s slough, to about June 16, 1883, and until the head of the jam in the main channel above Areola island had reached a point above the head of Page’s slough, when all navigation ceased until on or about August 7, 1883. During that time, Walker, Judd & Yeazie transferred from their mills at Marine to their boats at Page’s slough 840,000 feet of their lumber. The head of the jam continued to move up the river until it reached a point some distance above Yassa, which is four miles above Marine Mills. It is estimated that there were in the jam from one hundred and twenty-five to one hundred and eighty millions feet. Walker, Judd & Yeazie had about seventeen millions feet in the jam, of which a drive of about seven'millions reached the head of the jam when it was at Marine Mills, and the other ten millions when the head of the jam was near Yassa, about ten days afterwards. From June 1st to. the 10th the average output from the defendant’s booms, at the foot thereof, was 2,608,250 feet per day, and for the balance of that month 3,260,800 feet per day; and such daily output was greatly increased for the month of July. The average daily output from the defendant’s booms in May and June, 1884, was considerably larger than in 1883. There was evidence tending to show that Mud and Butler lakes, connected with Page’s slough, could be improved so as to store several millions feet of logs, especially during a high stage of water, and that the same was true respecting Rice lake. Such is the general nature of the evidence upon which the court granted a nonsuit.

The gravamen of the complaint is that the defendant, assuming to proceed under its charter, had wholly obstructed the navigation of the river without authority of law and in violation of the provisions of its charter, and for its failure and refusal to make proper preparations for receiving and assorting logs, and its careless and negligent handling of such logs and its booms. The use of rivers and smaller streams for the floatage of logs is essential to the continued prosperity of the immense lumber and industrial interests of northern Wisconsin. The regulation and preservation of such use, in connection with and as facilitating navigation by reasonable and proper booms and other structures, has long been the legislative policy of this state, as frequently sanctioned by this court. It is true, the constitution of the state declares that “ the river Mississippi, and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost, or duty therefor.” Sec. 1, art. IX. This provision is taken almost literally from the fourth of the “ articles of compact ” contained in the ordinance of 1781, and sec. 8 of the enabling act for the admission of the state. In speaking of it in Wis. R. Imp. Co. v. Manson, 43 Wis. 261 et seg.,the present chief justice said: “ Though the language of the constitution is general, it must receive a reasonable construction. It would be most unreasonable to say that it prohibited the state from granting po wer to a corporation or individual to make a canal or railroad through or across the ‘carrying places,’ or to construct works in a stream, at a point where its waters were unnavigable, for improving the navigation, and to charge a reasonable toll as a compensation for the benefit of such improvements.” It is then said that the object of this provision “ was to prevent the imposition of any tax, impost, or duty for the use of the streams and carrying places in their natural state. The constitution relates to navigable waters only. It does not deprive the legislature of the power, through the instrumentality of corporations or individuals, to connect unnavigable waters by canals or other means, or to render navigable places in them not navigable by. nature, and to charge tolls in such cases for the use of the waters made navigable by such improvements. It is evident that waters may be partially navigable only, either as to time or mode of navigation; and the constitution does not deprive the legislature of the power of making such improvements as increase the navigability of partially navigable waters, either in point of time or mode of navigation, and to charge tolls for the use of waters whose navigability is so increased by such improvements. This, we think, is the true construction of the constitution.” The objection to such improvement company taking possession of “ the entire channel of the river ” is then answered in these words: “ It is said that any improvement authorized should require the river to be left in substantially its former state, so as to give the public the option to use the improvement and pay the toll, or the free natural channel. We do not feel the force of this position. . . . The legislature is, primarily at least, the judge of the necessity of the improvement; and when it delegates the power to a corporation, and the state does not question that the improvement made by the corporation is in conformity with the delegated power, it seems to' us that neither the necessity nor usefulness of the improvement, nor the manner in which it is made, can be called in question by private parties. Large discretion was given the plaintiff as to the mode of executing the work, and presumably it has exercised the power conferred wisely. The case involves no question of foreign or interstate commerce, or of the paramount authority of Congress over the publio navigable waters of the United States. . . . Until Congress exercises its power over the subject, the improvement legalized by the state cannot be called in question by private parties.” In supper;; of these propositions the opinion cites Pound v. Turck, 95 U. S. 459.

These several propositions are in harmony with subsequent adjudications in this court. Stevens Point Boom Co. v. Reilly, 44 Wis. 295, 46 Wis. 237; Cohn v. Wausau Boom Co. 47 Wis. 314; Borchardt v. Wausau Boom Co. 54 Wis. 107; Black River F. D. Asso. v. Ketchum, 54 Wis. 313; Black River Imp. Co. v. La Crosse B. & T. Co. 54 Wis. 659; Edwards v. Wausau Boom Co. 67 Wis. 463. The same propositions are also sanctioned by numerous cases in the supreme court of the United States, in addition to Pound v. Turck, supra. See Withers v. Buckley, 20 How. 84; Escanaba Co. v. Chicago, 107 U. S. 678; Huse v. Glover, 119 U. S. 543; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Sands v. Manistee R. Imp. Co. 123 U. S. 288. In Cohn v. Wausau Boom Co., supra, it was said by RyaN, C. J., that “ it is settled in this states that a riparian owner on navigable water may construct, in front of bis land, in shoal water, proper wharves, piers, and booms, in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water. This is properly a riparian right, resting on title to the lank, and not upon title to the soil under the water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license ly the public/ is subordinate to the public use, a/nd may be regulated or prohibited by law.” 47 Wis. 322. Then, after construing the. company’s charter, as giving the exclusive right of constructing booms for holding, storing, and assorting logs for a certain distance up and down the river, and works in the water in aid thereof, but without authorizing the use of any of the river’s banks owned by other parties, it was, in effect, held that as the chief value of the river was for the floatage of logs to market, and such booms were necessary therefor, and as the company’^ charter gave an equal right in the use of such works to all the world, the defendant should be held to be a quasi public corporation, with franchises for a public use; and that the prohibition of other riparian owners on the same river, within such limits, from constructing other booms therein, was a valid exercise of a paramount public right. Ibid.

Among the authorities cited in the opinion in support of such exclusive right is Pound v. Turck, supra. That was an action in the circuit court of the United States for damages in the delay of a raft of lumber, etc., by reason of booms, piers, and dams constructed entirely across the Chippewa river by legislative authority from this state, and~in such a manner as to constitute material obstructions to the navigation of the same by any species of water-craft. The judgment of the trial court Avas reversed because that court had charged the jury, in effect, “that if the structures of the defendants wmre a material obstruction to the general navigation of the river, the statute of the state afforded them no defense, though they were built in strict conformity to its provisions.” 95 U. S. 462. This Avas, in effect, put upon the ground that conceding that the Chippewa, though small, was a navigable river and protected by the commercial clause of the constitution of the United States, yet that it was not of such a nature as to give Congress exclusive jurisdiction, and, until Congress should intervene by appropriate legislation, the matter of navigation was subject to the control of the legislature of the state. In support of this position, the opinion cites adjudications of that court sanctioning the validity of state legislation authorizing dams and bridges across navigable streams in a manner to wholly or partially obstruct navigation. Willson v. Black Bird C. M. Co. 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713.

The decision of Pound v. Turck, supra, has frequently been approved, by the supreme court of the United States. Escanaba Co. v. Chicago, 107 U. S. 686; Cardwell v. American Bridge Co. 113 U. S. 210, 211; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 8. In Cardwell v. American Bridge Co., supra, Mr. Justice Field, construing the act admitting California into the Union and guarantying the free navigation of its waters as public highways substantially in the language of our state constitution above quoted, said: “ The act enabling the people of Wisconsin territory to form a constitution, and for admission into the Union, contains a similar clause. And yet in Pound v. Turck, ... it was held that a statute of that state which authorized the erection of a dam across a navigable river within her limits was not unconstitutional, in the absence of other legislation by Congress bearing on the case. The court does not seem to have considered the question as affected by the clause in the enabling apt. That clause is not, it is true, commented on in the opinion; but the section containing it is referred to, and the declaration that navigable streams within the state are to be common highways must have been in the mind of the court. . . . The clause, therefore, in the act admitting California, . . . must be considered, according to these decisions, as in no way impairing the power ■which the state could exercise over the subject if the clause had no existence.” He then, in effect, construes the clause as insuring “ a highway equally open to all, without prefer•ence to any, and unobstructed by duties or tolls, and thus prerent the use of the navigable streams bj private parties to the exclusion of the public, and the exaction of any toll for their navigation.”

In the more recent case of Hamilton v. V., S. & P. R. Co. 119 U. S. 280, the company was chartered by the state of Louisiana to build its railroad from a point opposite Yicksburg to the Texas line. In doing so, it constructed a bridge, with a draw, over the Bouff river, which was navigated by the plaintiff’s steamer, for about six months each year, from a point several miles above to the Mississippi river. The decay of the bridge necessitated a reconstruction, which was done at a time least likely to interfere with such navigation. By reason of unexpected rains, the river became navigable for such steamer eai’lier than usual; but by reason of temporary obstruction, necessitated by building the bridge, the same was wholly prevented for six weeks, and the action ivas brought to recover damages therefor. The company justified under such state, legislation, and on the ground that its action was necessary and performed with reasonable care. The plaintiff claimed that such state legislation was void by reason of the clause in the enabling act and act for the admission of Louisiana, guarantying the free navigation of such river substantially like that quoted from our state constitution. The state court held that the obstruction, under the circumstances, was damnum absque injuria, and, following the cases cited, such judgment was affirmed by the supreme court of the United States on writ of error. Among other things, Mr. Justice Field, speaking for the whole court, said: “ Until Congress intervenes in such cases, and exercises its authority, the power of the states is plenary.” Then, after stating that no specific directions as to the form and character of such bridges were prescribed in the charter, he said: “ The authority of the company to construct them was only an implied one, from the fact that such structures were essential to the continuous connection of the line. Two conditions, however, must be deemed to be embraced within this implied power; one, that the bridges should be so constructed as to insure safety to the crossing of the trains, and be so kept at all times; and the other that they should not interfere unnecessarily with the navigation of the streams.”

In the very recent case of Willamette Iron Bridge Co. v. Hatch, 125 U. S. 9 et seq., Mr. Justice Bradley, speaking for the whole court as to the construction to be given to substantially the same clause here involved, said: “ In admitting some of the new states, however, the clause in question has been inserted in the law, as it was in the case of Oregon, whether the state was carved out of the Territory Northwest of the Ohio or not; and it has been supposed that, in this new form of enactment, it might be regarded as a regulation of commerce which Congress has the right to impose. . , Conceding this tobe the correct view, the question then arises. What is its fair construction? What regulation of commerce does it affect ? Does it prohibit physical obstructions and impediments to the navigation of the streams,'or does it prohibit only the imposition of duties for the use of the navigation, and any discrimination denying to citizens of other states the equal right to such use? This question has been before this court, and has been decided in favor of the latter construction. It is obvious that, if the clause in question does prohibit physical obstructions and impediments in navigable waters, the state legislature itself, in a state where the clause is in force, would not have the power to cause oi* authorize such obstructions to be made without the consent of Congress. But it is well settled that the legislatures of such states do have the same power to authorize the erection of bridges, dams, etc., in and upon the navigable waters wholly within their limits, as have the original states, in reference to which no sucb clause exists.” In support of such positions he cites the cases above mentioned, and adds: “It is clear, therefore, that, according to the construction given by this court to the clause in the act of Congress relied upon by the c.ourt below, it does not refer to physical obstructions, but to political regulations which would hamper the freedom of commerce. It is to be remembered that, in its original form [as in our state constitution], the clause embraced carrying places between the rivers, as well as the rivers themselves; and it cannot be supposed that those carrying places were intended to be always kept up as such.” lie then indicates that some of those places are now covered by populous towns or otherwise occupied, and that the Clause there in question did not establish the police power of the United States over the rivers of Oregon.

The supreme court of Minnesota, under a constitutional provision like our own, has reached the same conclusion; and, in support of it, cites Pound v. Turck, supra, the decisions from this state above mentioned, and also cases from Michigan. Osborne v. Knife Falls Boom Corp. 32 Minn. 412. The same was held in Craig v. Kline, 65 Pa. St. 399, notwithstanding the existing agreement between Maryland and Pennsjdvania for the preservation of the free and public navigation of the Susquehanna river. Duluth Lumber Co. v. St. Louis Boom & Imp. Co. 17 Fed. Rep. 419.

Obviously, the conclusions thus reached are in conflict with some things said by my brother Taylor in Sweeney v. C., M. & St. P. R. Co. 60 Wis. 67 et seq., as to obstructions in navigable rivers which the legislature could- not authorize should they make the attempt; but the question thus suggested was not there involved, and the absolute right of authorizing the permanent obstruction of such rivers is not here involved. The right to authorize booms for the interception, storage, and handling of logs in a manner to materially interfere with the navigation by steamboats and other water-craft, however, is involved, and such right is not only sanctioned by the supreme court of the United States, but by numerous adjudications of this court.

2. The obstr actions here complained of were in that part of the St. Croix river constituting the boundary line between this state and Minnesota. The defendant justifies under corporate authority derived solely from Minnesota. We are here confronted with the question whether such authority, so granted by that state alone and without the concurrence of this, is of any validity. Our constitution declares that “ the state shall have concurrent jurisdiction on all rivers and lakes bordering on this state, so far as such rivers or lakes shall form a common boundary to the state and any othpr state or territory now or hereafter to be formed and bounded by the same.” Sec. 1, art. IX, Const. Wis. This provision is substantially the same as the third section of the act of Congress of* August 6, 1846, enabling the organization of this state preparatory to its admission into the Union. Substantially the same provision, as applied to Minnesota, is found in sec. 2 of art. II of the constitution of that state, which is in substance the same as sec. 2 of the enabling act for the organization of that state passed by Congress in 1857. Such “concurrent jurisdiction,” therefore, is fairly established by the combined action of the general government and each of these two states. Its significance is the important inquiry presented. No one will deny that the one state has as much jurisdiction over the commerce of the river as the other, nor that the jurisdiction of each and both must be and remain subordinate to .any action of Congress, under the commercial clause of our national constitution. The question recurs whether one of these states, without the concurrence of 'the other, can legally grant the booming privileges and rights authorized by the defendant’s charter.

The gravity of the question cannot well be overestimated. The commerce of the northwest is rapidly increasing. Perhaps over 500 miles of the boundary line of this state is made up of navigable rivers. Jurisdiction claimed under the authority of the one state to-day may be asserted under the authority of the other to-morrow. Jurisdiction denied in the one state this year may be assumed by the same state next year. It is important to the people of this state, as well as such adjoining states, therefore, that the question suggested should be carefully considered, and then determined in strict accordance with the established law, and, as far as may be, in harmony with the decisions of the supreme court of the United States, which are, of course, binding on all questions of interstate commerce. But we are referred to no case in that court, and we find none, covering the precise question here presented. "We do find, however, numerous adjudications in that court involving the right of one state to interfere with the navigation of the waters of a river constituting the boundary line between it and another state. Some of these cases may be instructive here.

It seems to be well settled in that court, as well as others, that the shores of navigable waters, and the soils under them, were not granted to the United States, but were, with the right of eminent domain over them for all municipal purposes, reserved to the states, respectively; and this applies to the new states as well as the original states. Pollard's Lessee v. Hagan, 3 How. 230; Gilman v. Philadelphia, 3 Wall. 726; Stockton v. B. & N. Y. R. Co. 32 Fed. Rep. 9.

Among the cases demanding consideration is Pennsylvania v. Wheeling & B. Bridge Co. 9 How. 647, 13 How. 518, and 18 How. 421. The free navigation of the Ohio river had been secured to all by the compact in the ordinance of 1787 and the action of Virginia, from which the Northwest Territory was acquired. The same was reaffirmed, upon the admission of Kentucky, by compact between that state, Virginia, and the United States. It appears that Virginia and Ohio favored the construction of such bridge, while Pennsylvania opposed it, in consequence of its then prospective interference with the interstate commerce of that state upon the river, in connection with its canals and railroads. Eor a time, Congress refused to take any direct action in the matter. In 1847 the state of Virginia authorized its construction. A state being complainant, the supreme court of the United States took original jurisdiction of the suit to restiain the construction of the bridge and to abate the same. Upon the hearing the majority of the court concluded thal the construction of the bridge, on the plan proposed, would interfere with such commerce, and it was therefore decreed that the complainant be entitled to such injunction and abatement, unless the plans should be changed, as indicated therein, so as to obviate such interference, in which event the company were at liberty to complete the bridge. 13 How. 578, 612, 622-627. This was necessarily on the theory that Virginia had power and jurisdiction to authorize such structure, provided it did so in a way not to intrude upon the power exclusively vested in Congress by the commercial clause of the constitution. After that decree had been entered, and August 31, 1852, Congress passed an act declaring the bridge to be a lawful structure as then constructed, and requiring all vessels and boats navigating the river to regulate their height accordingly. 18 How. 421, 429. That act was held to be constitutional, and not invalid by reason of such compact. Ibid. In that case it was said, in the prevailing opinion of the court on the last hearing, that “the bridge had been constructed under an act of the legislature of the state of Virginia; and it was admitted that act conferred full authority upon the defendants for the erection, subject onl/y to the power of Congress. in the regulation of commerce.” Id. 430. This language has received recent sanction from the same court. Bridge Co. v. U. S. 105 U. S. 480, 493, 494, 497; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 15. It must be conceded, however, that the power and jurisdiction of Yirginia over the half of the river most distant from it was greater than it otherwise would have been, by reason of the terms and conditions upon which it parted with its title to the Territory Northwest of the Ohio. Handly’s Lessee v. Anthony, 5 Wheat. 374; Howard v. Ingersoll, 13 How. 381; Alabama v. Georgia, 23 How. 505.

In Bridge Co. v. U. S., supra, Kentucky and Ohio each chartered and authorized, a company to build a bridge over the river at Cincinnati, and the same was built by a consolidation of the two companies.

In Mississippi & Missouri R. Co. v. Ward, 2 Black, 485, Ward, as owner and navigator of steamboats from St. Paul to St. Louis, filed a bill in equity, in the United States court for Iowa, for the abatement of the company’s bridge across •the Mississippi at Eock Island. The river at that point was 1,410 feet wide, and the bridge 1,570 feet long, with six piers, three of which were on the Iowa side. The draw-pier was the fourth from the Iowa shore, and was 386 feet long and 45 feet wide. The draw-space on the Iowa side was 111 feet, and on the Illinois side 116 feet, in the clear. The Illinois draw-passage was directly over the deepest channel of the river, and directly over the usual track of steamboats before the building of the bridge. That draw-passage of 116 feet, .the 45 feet of the draw-pier, and 80 feet between it and the eastern line of Iowa, which was the middle of the river, covered a space of 241 feet of water-way, and embraced the main channel, where steamboats had at all times navigated prior to the bridge. • It was' at the draw-pier, and in the Illinois draw-space, that the complainant’s boats sustained the injury which was the foundation of the action. The trial court ordered the removal of the three spans and piers on the Iowa side. That decree was reversed on appeal, and the complaint dismissed. In doing so, it was held, in effect, that the piers and the portions of the bridge on the Illinois side were, at most, an offense against the laws of Illinois, of which neither the trial court nor the state court of Iowa had jurisdiction; that, inasmuch as the removal of the three spans and piers on the Iowa side ■would destroy the bridge, without materially improving the navigation of the river, it did not call for equitable interference, and hence was improperly ordered; that the public were not .entitled to the free navigation of the whole river from bank to bank, as that would prevent the building of any lawful bridge whatever, but only a free and unobstructed navigable channel of the river. The bridge appears to have been built under corporate authority granted by Illinois, with the sanction or permission of Iowa. It should be observed that 'sec. 2 of the enabling act foi^ Illinois conferred upon that state “ concurrent jurisdiction on the Mississippi river with any state or states to be formed west thereof, so far as said river”, should “ form a common boundary to both;” but we find no similar clause relating to Iowa in its constitution or otherwise.

The supreme court of the United States has, in effect, frequently held that whei’e two states are ‘divided by a navigable river one of them alone may, in the absence of Congressional regulation, legally authorize the construction of wharves, piers, and other structures on its side of the river, in aid of navigation, and the exaction of pay for the use of the same from those navigating such river. Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, 100 U. S. 430; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 698-701. Such exaction, however, must be confined to a reasonable compensation for such use, but can not be legally imposed as a tax or burden upon interstate commerce. Ibid.; Guy v. Baltimore, 100 U. S. 434; Transportation Co. v. Parkersburg, supra. The distinction was, perhaps, first aptly stated by Mr. Justice Curtis, in these words: “ The grant of commercial power to Congress does not contain any terms which expressly exclude the states from exercising an authority over its subject matter. If they are excluded, it must be because the nature of the power thus granted to Congress requires that a similar authority should not exist in the states. . . . Now, the power to regulate commerce embraces a vast field, containing not only many but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every part, and some, like the subject now in question [pilotage], as imperatively demanding that diversity which alone can meet the local necessities of navigation. . . . "Whatever subjects of this power are in their nature national may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain.” Cooley v. Board of Wardens, 12 How. 318, 319. This distinction has since been frequently sanctioned, and has been applied to wharfage on such dividing rivers. Transportation Co. v. Parkersburg, 107 U. S. 701—704; County of Mobile v. Kimball, 102 U. S. 701. In Atlee v. Packet Co. 21 Wall. 389, the pier against which the company’s barge struck constituted a part of the riparian owner’s boom to retain logs for his mill, and the same was located 140 feet from the shore, and in water of the average depth of twelve feet, and was constructed without a/ny legislative authority whatever; and hence the case is distinguishable.

So it has been settled by the same court that one of two states separated by a navigable river may, in the exercise of its police power, grant exclusive authority to one of its citizens, as against others, to run a ferry across such river, and the exaction of fare for its use, without infringing the commercial clause of tho federal constitution, and without the sanction of such other state. Conway v. Taylor’s Ex’r, 1 Black, 603; Fanning v. Gregoire, 16 How. 524; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Gould on Waters, § 35. Of course, this would be subject to the exercise of a similar power by such other state. Ibid. In Conway v. Taylor’s Ex’r, supra, it was said by the court: “It is insisted that such a franchise, when confined to one shore, is a nullity, and that the concurrent action of both states is necessary to give it validity. . . . The concurrent action of the two states was not necessary.” 1 Black, 629. “ The franchise is confined to the transit from the shore of the state. The same rights which she (Kentucky) claims for herself she concedes to others. She has thrown no obstacle in the way of the transit from the states lying upon the other side of the Ohio and Mississippi. She has left that to be wholly regulated by their ferry laws. We have heard of no hostile legislation and of no complaints by any of those states. It was shown in the argument at bar that similar laws exist in most, if not all, the states bordering upon those streams. They exist in other states of the Union bounded by navigable waters.” Id. 631.

The defendant Avas aathon’zed, by its charter, to construct its booms upon the St. Croix river, and, for that purpose, to enter upon and occupy any land necessary for properly conducting its business. Secs. 11, 21, supra. It does not in terms give such authority upon the lands or waters of Wisconsin. Since the charter was granted by Minnesota alone, the defendant’s authority to so enter upon and occupy Avould seem to be confined to the territory of Minnesota, and in no event to reach beyond its jurisdiction. The line bet\ATeen the two states, at the points in question, is “ the main channel of ” the St. Croix. Sec. 1, art. II, Const. Wis.; sec. 1, art. II, Const. Minn. The defendant was required by its charter at all times to “ give free passage to all rafts, steamboats, keel-boats, or other water-craft navigating the said river St. Croix, without any hinderance or delay by reason of said booms or the logs therein confined,” unless it was impossible to prevent such obstruction by reason of an unusual pressor jam of logs. Sec. 18. The authority of Minnesota alone to grant such a charter seems to be fairly deducible from the several adjudications cited, unless she is deprived of doing so by that clause of her constitution and ours, and the enabling acts mentioned, securing to each state “concurrent jurisdiction” on that river.

3. Are the words “ concurrent jurisdiction,” as thus used, to be construed as requiring the joint action of both states to give validity to such a charter, or could Minnesota do so alone, with the corresponding right in Wisconsin to grant a similar charter? If such joint action was necessary to give such validity, then the refusal or mere failure of the one state to so act would wholly prevent the exercise of any jurisdiction by either state. “ Concurrent jurisdiction” are words usually applied to two or more courts. When so applied, no one has ever pretended that the exercise of such jurisdiction by the one court was dependent upon its concurrent exercise by any other court. On the contrary, all recognize the authority of each such tribunal to deal with the same subject matter, at the choice of the suitor. This is illustrated by the jurisdiction of state and federal courts in the same territory, as to controversies between citizens of different states and also as to other matters. They never concur in each other’s actions, but each proceeds separately and independently of the other. The same is true respecting offenses and torts committed upon a river dividing two states, where the courts of each have jurisdiction of the same; for in such case each court must necessarily act separately and independently of the other. Such jurisdiction of the courts of the respective states, when, concurrent, extends to the whole of that portion of the river dividing them. State v. Plants, 25 W. Va. 119, 52 Am. Rep. 211; Carlisle v. State, 32 Ind. 55. Although the words “ concurrent jurisdiction ” and “jurisdiction” are usually applied to the rightful authority of courts, yet they are not limited to such use. On the contrary, they are broad enough to embrace also the exercise of both legislative and executive powers. Kendall v. U. S. 12 Pet. 623; Sherlock v. Alling, 44 Ind. 184. Thus it is said in the case last cited “ that this state [Indiana] possesses concurrent jurisdiction with the state of Kentucky on the river at the place where the cause of action, if any, arose. The jurisdiction may be exercised in such manner as the state shall elect. It was exercised in unmistakable language in the constitution, by declaring that the state possesses such concurrent jurisdiction, in civil and criminal cases, with the state-of Kentucky. The jurisdiction which the state possesses is not limited to the service of process. It is general, and includes the right of legislation touching all civil and criminal cases on the river. . . . The jurisdiction asserted by the constitution is not limited to judicial proceedings in civil and criminal cases. It is such as the state may choose to exercise touching such actions, and legislation is included.” The three co-ordinate branches of the state government must, necessarily, in their respective spheres, possess powers which are co-extensive with each other. Worcester v. Georgia, 6 Pet. 510.

The words “concurrent jurisdiction” must have been used, in the compact between the federal government, Wisconsin, and Minnesota, in the sense in which they had previously been used and were generally understood. When, therefore, by such compact it was in éffect provided that each such state shall have “ concurrent jurisdiction ” on that portion of the river St. Croix constituting the boundary line between them, it included the exercise of such legislative powers by each state over the whole river as were consistent with the exercise of similar powers over the same portions of the river by the other state. In other words, by such compact each state secured to itself such “ concurrent jurisdiction” upon the half of the river within the territorial limits of the other state, by reducing what would otherwise have been its exclusive jurisdiction upon its own half to mere “concurrent jurisdiction.” The result is that neither of these states could, as against the other, rightfully assume, or authorize the assumption of, permanent and exclusive occupancy, possession, and control of the entire navigable portions of the river. President, Managers, etc. v. Trenton City Bridge Co. 13 N. J. Eq. 46; Att'y Gen. v. D. & B. B. R. Co. 27 N. J. Eq 631. Of course, no two structures or bodies can occupy precisely the same space at the same time upon a river, any more than elsewhere. Nevertheless, either state may, in aid of navigation, assume, or authorize the -assumption of, reasonable occupancy,possession, and control of portions of such navigable waters, provided the same is reasonably consistent with similar occupancy, possession, and control which may be' assumed or authorized by such other state. Concurrent jurisdiction, to be of value to the respective states or to any one, must have a practical application. Such-application should, moreover, be consistent with the reasonable continuance of a navigable channel as a public highway between such states, and must necessarily remain subject to any regulation of commerce by Congress under the commercial clause of the federal constitution.

Here large portions of the defendant’s booms were upon this side of the river, and between the main channel and the Wisconsin shore. It may be, as contended, that the defendant’s charter grants or purports to grant authority, or, at least, that the defendant, under it, has assumed to exercise authority which transcends the rightful powers of Minnesota, and infringes the concurrent jurisdiction of Wisconsin. Assuming such to be the case, and the question recurs whether such excess of rightful jurisdiction is available to the plaintiffs. In Rundle v. D. & R. Canal Co. 14 How. 80, the plaintiffs owned certain mills in Pennsylvania, opposite Trenton, N. J., supplied with water from a dam in the Delaware river, by a title running back prior to 1771. In that year the two provinces, which subsequently became the states of Pennsylvania and New Jersey, respect.vely passed acts declaring the river a common highway for the purposes of navigation, and appointed commissioners with full power to improve such navigation and remove any obstructions. By compact in 1783 it was agreed by the two states that the river should continuo to be and remain a common highway in its whole length and breadth, equally free and open for the use, benefit, and advantage of each of the two states. The defendant company was incorporated under the laws of New Jersey in 1830, and was thereby authorized to and did construct a canal in that state, with a feeder from a dam in that river above the plaintiffs’. The action was brought by reason of the diversion of such water, to the damage of the plaintiffs. The court held, in effect, that the plaintiffs had no grant of the usufruct of the waters of the river, but only a license to draw from their dam; that such license was revocable and in subjection to the superior right of the state to divert the water for public improvements, either by the' state directly or by a corporation created for that purpose; that the plaintiffs, being but tenants at sufferance in the usufruct of the water of the two states, who owned the river as tenants in common, were not in a condition to question the relative rights of either state to use its waters without the consent of the other; that as, by the laws of their own state, the plaintiffs could have had no remedy against a corporation authorized to take the whole waters of the river for the purpose of canals or improving the navigation, so they conld not sustain a suit against a corporation created by New Jersey for the same purpose, which had taken a part of the waters. The principle of that decision seems to be that a mere private party should not be heard to complain that one of two states,, divided by such river, had invaded the rightful jurisdiction of the other, by diverting more than its share of the waters. So here, we think the plaintiffs are not entitled to be heard as to whether Minnesota has infringed the rightful jurisdiction of "Wisconsin. This state is not a party to this suit, and her comparative rights in and upon the waters of the river at the points in question cannot be adjudicated in this action. Whether such a controversy would be most properly determinable In the courts of either state or of the United States (as in Wisconsin v. Duluth, 96 U. S. 379; South Carolina v. Georgia, 93 U. S. 4; Alabama v. Georgia, 23 How. 505), we are not here called upon to decide. It is enough to know that such non-exercise of jurisdiction by the one state is not available as a substantive cause of action against a corporation created by and acting under the authority of the other state.

4. The defendant is certainly not liable for its failure to go outside of the scope of its charter and invade the territory of Wisconsin by taking possession of Eice lake, and placing booms therein, and constructing the necessary inlet and outlet for the proper storage of all logs that may have-been adrift in the river.

5. The liability of the defendant, if any, must arise out of its failure to perform some of the duties imposed by its charter, or the careless or negligent manner in which it performed such duties. These questions we are unable to solve as mere matters of law. The record, as indicated, presents too many disputed facts and circumstances and too many disputed inferences to be drawn from admitted facts to authorize us in saying that the case was properly taken from the jury and determined as a matter of law. Of course, the defendant was, under no view of the case, liable for any remote and speculative damages. It was," however, bound to the faithful pei formance of the duties imposed by the charter as to such lower booms and additional booms in aid thereof. They did not extend above Marine Mills. Whether, below that point, the capacity of the defendant’s works and booms might,, with reasonable precautions and diligence, have been increased by improving Mud and Butler lakes, or otherwise, were necessarily questions of fact, which we are not at liberty to say were conclusively negatived. The defendant was required, so far as it could with reasonable diligence, by such works and booms, to supply the ordinary demand of the log-driving business on the' river, as measured by such use in previous years. In case of pressure of logs from above, it was, moreover, bound to exercise reasonable diligence, under all the circumstances, in delivering logs, and thus relieving its booms at the foot thereof, and thus increase its capacity for receiving logs the more rapidly at the upper end of such lower boom. There is evidence tending to show that the rapidity of sucli delivery was considerably less at about the time of the commencement of the jam in 1883 than it was a short time before or a short time afterwards, and that it was much less at that time that year than in other years. But the defendant was not bound to go beyond its capacity under its charter, and at all times keep open a navigable channel for steamboats and other water-craft, however unusual or extraordinary might be the press or jam, from above, of logs and timber in the river.

It is claimed that in June, 1883, the river, at the points in question, was unusually crowded with logs coming from all the tributaries above simultaneously and to such an extent as to make it impossible for the defendant to assort and deliver them as fast as they came. This maj^ be so; and it may be that the defendant was not in fault. Its liability, if any, must rest upon its failure to perform, or its negligent or careless performance of, some duty imposed by its charter, but can never be based upon a condition of things produced by natural causes and the action of others, and which, under its charter, it had no means of preventing. It is to be remembered that the- defendant is not a log-driving corporation, but one of the character indicated, and in aid of navigation. It could not rightfully, by its booms, unnecessarily interfere with the navigation of steamboats and other water-craft; but it had the right to intercept, store, and deliver logs adrift in the river, as indicated by the authorities cited. In some states they have gone so far as to forbid the floating of logs in such navigable rivers without their being rafted or inclosed in boats and under the control of men actually upon them. Craig v. Kline, 65 Pa. St. 399. This is on the theory that such uncontrolled floatage is necessarily destructive, more or less, of any other navigation upon the river while it continues. Thus far, it would seem, Minnesota and Wisconsin have allowed logs above the defendant’s works to go promiscuously adrift, regardless of the consequences to other navigators and interests upon the river. Certainly, a booming corporation, created in the interest of the public as. well -as log-owners, for the very purpose of bringing order out of the necessary confusion thus produced, should not be held responsible for what it has no capacity nor corporate power to prevent, but only for its failure to perform its duty, or its negligence ’or carelessness in such performance. Since there must be a new trial, further discussion is unnecessary.

6. There seems to be no serious controversy but what the plaintiffs have succeeded to the alleged claim for damages accruing to Walker, Judd & Yeazie, as against everybody, unless it be their creditors; and there is no claim that the defendant is such.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

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Dissenting Opinion

Orton, J.

I most respectfully dissent from the doctrine of the opinion, as I understand it, that the state of Minnesota, in the exercise of her concurrent jurisdiction with this state over the boundary river of St. Croix, may authorize the defendant, as a mere private corporation, to construct such works for booming purposes within that part of the river which lies within her boundary, to the hinderanca or obstruction of the navigation of said river to any extent whatever, as a mere act of sovereignty, without the actual concurrence of this state, except as such corporation may be a riparian proprietor of the Minnesota shore of said river contiguous to, and, to the extent of, such works. 1 think it appears that the ¡defendant is such riparian proprietor. In such case I agree that the unnecessary and unreasonable obstruction of said river in this case is a question of fact for a jury. I cannot assent to the meaning of concurrent jurisdiction of the two states over said river as expressed in the opinion. It makes such jurisdiction independent in each state, rather than concurrent in both.

The respondent moved for a rehearing, urging that there was no evidence tending to show that it was guilty of negligence in the discharge of the duties imposed upon it by its charter which should have been submitted to the jury.

The motion was denied September 18, 1888.

Case Details

Case Name: J. S. Keator Lumber Co. v. St. Croix Boom Corp.

Court Name: Wisconsin Supreme Court

Date Published: Sep 18, 1888

Citation: 72 Wis. 62

Court Abbreviation: Wis.