Merwin v. Houghton

146 Wis. 398 | Wis. | 1911

Lead Opinion

SiebecKer, J.

The appellants assail the trial court’s findings pertaining to the material facts involved in the organization of the drainage district under the provisions of the statutes. It is contended that the organization of the drainage district pursuant to the proposed drainage scheme will not in fact be promotive of the public health or general welfare, that there are navigable streams and lakes within its boundaries which will be wholly diverted from their channels or annihilated, and that the public rights of hunting and fishing in and upon such waters will thus be wrongfully destroyed. The area embraced within the proposed district contains a large quantity of low and swampy land along the border of the Mississippi river, known as river bottoms, through which flow the waters of the Trempealeau river, which empties into the Mississippi river. It appears that the low areas of this district are completely inundated at high water of these rivers, and that the banks of the rivers, and the creeks, ponds and sloughs, or lakes, are obliterated, forming one body of water; that at stages of ordinary low water the Trempealeau river and Pine creek flow in winding channels, bordered with low banks, and that the channels spread out in places and form what are called sloughs, ponds, or lakes, some of which at times of low water are entirely separated from flowing water, thus creating shallow and stagnant pools. It is manifest that the proposed scheme of dykes and drains would practically prevent inundation of the area from freshets and high water and would drain off the waters naturally collecting therein, thus producing a large area of dry and tillable land and a consequent destruction of insanitary conditions inimical to public health. These facts and conditions authorized the organization of the drainage district, unless it should appear that private rights of persons and the rights of the public were thereby wrongfully invaded.

It is well established in the law of this state that the rights of riparian owners on navigable waters rest upon the title to the bank and that such rights may be condemned for public purposes as other property upon payment of a just compensation therefor. The claim that remonstrants’ riparian rights are to be injuriously affected by the change of the channel of the Trempealeau river and by the removal of the water from the drained area cannot operate to stay the hands of the state in carrying out a public, purpose so long as due provision is made for compensating such riparian owners for any damage done to their riparian interests. This class of property is subject to the paramount rights of the state in the exercise of its governmental functions and is subj ect to condemnation for public uses. Since this drainage enterprise is in its object and purposes a public one, and since provision for compensation to persons for the damage caused thereby to their property has been made, there can be no legal objection thereto upon the ground that riparian rights are injuriously affected.. Whatever damages a riparian owner may suffer as a result of carrying out the enterprise must, under the provisions of the statutes, be included in the assessment of damages, for which compensation is to be made in the same manner as other damages are ascertained and compensated.

It is strenuously contended that the court erred in holding that the navigation of the waters within the limits of the district would be improved and that no such substantial impairment of the public rights of hunting and fishing would result as would constitute'an unlawful infringement of them by the-state, holding them in its capacity as trustee for the benefit of all the people. A study of the facts shows that the objection to the proposed change of the channel of the Trempealeau river upon the ground that its navigability would not be improved is not sustained. The present channel is circuitous, and shallow from its entrance into the district at the point called Marshland to its mouth at Trempealeau bay, and for considerable parts of its course is practically impassable to-any watercraft or boats in ordinary stages of water. The topography of the district indicates that the proposed river-channel will be as naturally adapted for the course of the river from Marshland to where it empties into Ti’empealeau bay as-the course it now follows, for both of these course's form parts of the same river bottom or flat, over which the water naturally passes in its flow to the Mississippi. The evidence also-shows that the proposed channel will be deeper and straighten and that it will confine the waters within its banks much better than the present one, and in connection with the proposed levees will hold the water in times of freshets and prevent the extensive inundations- which have heretofore occurred. From these facts and conditions it is manifest that the navigability of this watercourse, forming the channel of the Trempealeau river, will in fact be improved by limiting it to tbe proposed new channel.

The argument is made that such a diversion of the channel as is here proposed is not authorized under the statutes and the adjudications on the subject. Eeliance is placed, among others, on the following cases in this court to sustain this claim: Johnson v. Eimerman, 140 Wis. 327, 122 N. W. 775; Ne-pee-nauk Club v. Wilson, 96 Wis. 290, 71 N. W. 661; A. C. Conn Co. v. Little Suamico L. Mfg. Co. 74 Wis. 652, 43 N. W. 660; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273; Boorman v. Sunnuchs, 42 Wis. 233; Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389; In re Dancy D. Dist. 129 Wis. 129, 108 N. W. 202; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764; Priewe v. Wis. S. L. & I. Co. 103 Wis. 537, 79 N. W. 780; In re Horicon D. Dist. 136 Wis. 227, 116 N. W. 12. It was expressly decided in In re Dancy D. Dist., supra, that under the statutes then existent, providing for the organization of drainage districts, no authority was conferred by the legislature to impair the navigability of a river or of any navigable lake. Like declarations have been made in subsequent cases. Since these decisions the legislature, by ch. 646, Laws of 1907, has amended the drainage act,, providing that the commissioners, to accomplish the purposes of the act, may do all necessary acts, “including . . . clearing: out and removing obstructions from or changing the natural course of natural or artificial channels or streams within the-limits of the drainage district.” The act also provides: “The course of no navigable stream shall be changed unless such-change will improve the navigability thereof.” This amendment clearly confers on commissioners the power to change the natural course of a river if the change will improve its navigability. We think that the state, as the sovereign authority with power to regulate and keep free the navigable waters of the state, may grant the authority conferred by this statute. It has always been deemed the right of the state to. do whatever might be appropriate to regulate and improve navigation. Wisconsin River I. Co. v. Lyons, 30 Wis. 61; Cohn v. Wausau B. Co. 47 Wis. 314, 2 N. W. 546; Black River I. Co. v. La Crosse B. & T. Co. 54 Wis. 659, 11 N. W. 443. It is made apparent that a change in the channel as here proposed is well adapted to improve navigation, and the prosecution of the work is therefore, obviously, an appropriate exercise by the state of its right to promote the public interest in navigation. The contention that this diversion of the channel from the present location to the proposed new one operates as a destruction of a substantial part of the natural course of the river and of two well established lake expansions thereof is not supported in fact. • As heretofore indicated, all of the low lands or bottoms of the drainage district form a marshy and boggy area, through any part of which the waters of the river might naturally form a channel. This is clearly shown by the changes which have occurred in the channel in recent times and by the apparent condition of these bottoms. Under such conditions the location of a new channel within an area through which the river might naturally seek its course is not such a diversion of the river from a natural bed as constitutes a destruction of an existing navigable watercourse. It is in effect providing a better and improved channel within the area through which the river might naturally flow, and hence is an improvement appropriate to promote navigation.

The contention is that such a change of the river channel will in fact operate to destroy navigable lakes within the district, and the findings of fact of the trial court are assailed on this ground. We find that the trial court’s findings on this subject are supported by the evidence. The spreads of the river within the district are not separate bodies of water constituting inland navigable lakes or ponds. They have no existence independent of the river. These bodies have been formed by a scooping out of the bottoms. They are parts of the river and creek channels, and must be treated as inseparably connected therewith and as parts thereof. Under such circumstances and conditions it cannot be said that the proposed improvement affects inland navigable ponds or lakes, and the trial court’s findings of fact on this subject must be approved.

The appellants strenuously contend that, if the proposed drainage scheme is adopted, the public rights of hunting and fishing in the navigable waters of the district, as they now exist, will be destroyed to a substantial and unlawful extent. It appears that Pine creek and its expansion, Mud lake, and part of the Trempealeau river, from its spread called Wilson lake, to Trempealeau bay, are navigable for small boats in ordinary stages of water and that they are so navigated by fishermen and hunters in pursuit of fish or fowl, but that in low water they are not navigable. The public rights of navigation and of fishing both exist in the navigable waters of the state, each independent of the other, and the state holds title to the beds of such waters in trust for such public purposes. The state also has the power, as such trustee for the public, to so regulate these public uses of navigable waters as to best accomplish and promote the public interests. The legislature has provided that drainage schemes may be undertaken if they promote the public health or general welfare. To accomplish this in regions connected with navivable waters may in some respects affect the public rights of navigation and fishing. As to the rights of navigation the legislature specifically provides the restriction that no change shall be made in the course of a navigable stream unless the change will improve navigation. We have found that this right will be improved by the contemplated improvement. The rights of fishing and hunting will be affected by the contemplated improvement in that the present navigable waters in the district afford a superior condition for hunting and fishing to that which will exist in the condition of the navigable waters after the proposed changes in the ■course of the Trempealeau river have been made. The legislature must naturally bave contemplated that hunting and fishing might be impaired in some degree as an incident to such a regulation of navigation and in the promotion of the public health and general welfare by a system of drainage. It must be assumed that the legislature in executing its governmental functions intended to guard the public uses of navigable waters against unauthorized impairment and subjected them only to such regulations as the public interests require and as are consistent with the preservation of the public rights. Can it be said in the instant case that the state, in authorizing this drainage scheme, acting through the agency of a drainage commission, has infringed on the public rights of fishing and hunting in violation of the trust for the public upon which the state holds the beds to navigable waters ? To constitute such an infringement of the rights of fishing and hunting it must appear from the facts and circumstances presented that there is an unauthorized impairment thereof in the light of the duty of the state to regulate other public interests. Applying these considerations to the situation presented here, is the difference in the fishing and hunting in the drainage district, as they are and as they will be hereafter, so substantial as to violate the trust to the public in this regard? True, hunting and fishing will be somewhat impaired in the navigable waters of the drainage district, but not to an extent amounting to a substantial infringement of the right, when considered in connection with the regulation and guarding of the other public interests here involved. The restriction on fishing and hunting under the present conditions is not in its nature and magnitude such a deprivation'to the public as to be a violation of the trust to the public. It cannot be said, therefore, to be an unauthorized exercise of the legislative power for carrying out the functions and duties of the state consistently with such public trust.

We find no reversible error in the record, and the findings and orders of the circuit court must be approved.

By the Court. — The order appealed from is affirmed.

Tbe following opinion was filed June J, 1911:

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Concurrence Opinion

WiNslow, C. J.

(concurring). Doubtless it is true that, the public rights of fishing and navigation are independent, rights in the sense that a man is not obliged to be navigating-while he is fishing, any more than he is obliged to- fish while he is navigating. At the same time the public right to- fish is incident to navigable waters only and is entirely dependent upon the fact that the waters are navigable; hence the fishing-right is dependent upon, though not necessarily obliged to be-exercised with, the right of navigation. Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273.

It clearly follows from this, that, when the state exercises its unquestioned right to improve navigation by straightening-watercourses, deepening channels, and the like, it cannot be restrained in the exercise of that right by the mere fact that the fishing will be substantially damaged. The right of the state to better its navigable waterways is supreme-. If there be a resulting impairment of the quality of the fishing in the-navigable stream as improved, even to the point of practical extinction, this is a loss which the public must endure without complaint.

If commerce must await the pleasure of the occasional fisherman before it can ask for straighter channels or deeper water or both, then indeed it will be sadly handicapped. Were this true, many of our harbors could never have been built. But it is very manifest that it is not true. The right of the public to fish in navigable waters is indeed an independent right in the sense that a man does not need to navigate who can fish without navigating, as for instance from a bridge, but it is a right which the public has in navigable water only and necessarily is always subject to the state’s paramount right to improve navigation.

Makshall, J. I concur in the foregoing opinion by Chief Justice WlNSLOW.