Kaukauna Water Power Co. v. Green Bay & Mississippi Canal Co.

75 Wis. 385 | Wis. | 1890

Cassoday, J.

It appears from tbe complaint that the plaintiff, as the riparian owner of the entire south bank of the river from the government dam down to the channel between that bank and island No. 4, and the entire south bank of that channel from its mouth to the foot of the rapids, including half the bed of the stream, and the equal undivided three-fourths of the entire shore or bank of island No. 4, and of the land under water to the center of the channels,- entirely around the same, brings this action for the wrongful diversion of the waters of the river from said lands.

The rule of law as to the right of a riparian owner, respecting the flow of water over his land, is indicated in the authorities cited by counsel. The same principle has recently received direct sanction from, the House of Lords, as follows: “It has now been settled that the right to the enjoyment of a natural stream of water on the surface, ex jure natures, belongs to the proprietor of the adjoining lands as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity, and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbor’s soil for his own in its natural state.” North Shore R. Co. v. Pion, L. R. 14 App. Cas. 621.

In Green Bay & M. Canal Co. v. Kaukauna W. P. Co., 70 Wis. 635, it was, among other things, in effect held that the surplus water power created by the dam was merely incidental to the improvement, and that the control thereof was necessary to the proper management of such improvement, and hence that the canal company was the owner thereof as a part of such improvement. The question here sought to be litigated upon the merits is as to whether such canal company is legally bound to return such surplus water to the river substantially at or near the dam, and thus enable the plaintiff, as such riparian owner, to have its share of the use thereof while passing the rapids in a body, or whether the canal company may rightfully convey such surplus in the canal to points at so great a distance below the dam before the same is returned to the river, as to deprive the plaintiff of its share of such use while passing the rapids or a portion of them. The questions suggested were elaborately discussed by counsel, but we purpose^ refrain from considering them upon this appeal.

For the purposes of this appeal, we shall assume that the plaintiff is entitled to have such surplus wrnter returned to the river substantially at or near the dam, and that the canal company wrongfully conveys, or threatens to convey, the same to points at a considerable distance below the dam, and there to distribute the same to its several lessees, as indicated in the record. "We also assume, as alleged by way of plea in abatement, that there are other owners of riparian lands bordering on the north and middle channels, not parties to this action, who are interested in the continuance, and perhaps the increase, of such diversion, and that there are still others, not parties, who are interested in diminishing such diversion or preventing the same altogether. Such other riparian owners might have been proper parties to this action, but it does not follow that any of them were necessary parties. They do not appear to be united in interest with the defendants nor with the plaintiff, within the meaning of sec. 2604, R. S. Nor are they necessary parties to a complete determination of the matters involved in this action, within the meaning of secs. 2603, 2610, R. S. As indicated, the only matters involved in this action are whether the defendants, or any of them, are wrongfully diverting, or threatening to divert, waters from any of the plaintiff’s lands. In the determination of this controversy, it certainly cannot be necessary to determine whether the plaintiff might have a similar controversy with any of the other riparian owners named in the plea, or whether some of them might have a similar controversy with any of the defendants. / The difficulty with the contention of the learned counsel for the defendants, in respect to this plea in abatement, is that he seeks to convert the action into one for partition, wherein may be determined the proportionate share of water which rightfully belongs to the respective channels and the respective riparian owners on each channel. But such is not the nature of the cause of action alleged in the complaint, and that is the only cause of action with which we are now concerned. For a further discussion of this question, see Grand Rapids W. P. Co. v. Bensley, post, p. 399, in which an opinion is filed herewith.

By the Court.— The order of the circuit court is affirmed.