103 Wis. 537 | Wis. | 1899
There are no questions of law to be considered on this appeal. When the case was here before on an appeal involving the sufficiency of the complaint (
Appellant's counsel has furnished us with the result of much research as regards the scope of the police power of the state and the supreme authority of the legislature to exercise such power, all of which is interesting but not material, because the subject is not before us. That the legislature has a broad discretion in the exercise of police powers cannot be questioned. Within that discretion its dominion is supreme; but whether a legislative enactment was designed to further some governmental function, or to further private gain, as said in the former opinion, is a judicial question and counsel have failed to produce any authority to the contrary; and even if such authority were produced it could not change the rule for the purposes of this case. Not only, as indicated, is it a judicial question of fact which is presented by the controversy as to the purpose of the act of 1891, but the court is not concluded by the wording of the act as to where the truth lies. Otherwise private property rights could easily be taken away from one, and with or without consideration vested in another, under the guise of the promotion of some public purpose falsely recited in a legislative enactment.
Leaving out of view the pretense that the draining of the lake was for the purpose of promoting the public health, not a shadow of legal authority exists to justify the acts complained of. The legislature has no more authority to emancipate itself from the obligation resting upon it which was *550
assumed at the commencement of its statehood, to preserve for the benefit of all the people forever the enjoyment of the navigable waters within its boundaries, than it has to donate the school fund or the state capitol to a private purpose. It is supposed that this doctrine has been so firmly rooted in our jurisprudence as to be safe from any assault that can be made upon it. The navigable waters of the state belong to the state, and the lands under them, in all situations, so far as are necessary to preserve inviolate the common right to enjoy those incidents which were not the subject of private ownership in navigable waters at common law; and any attempt by any person or corporation to violate such public rights to the special injury of a particular person, as when an attempt is made to take from such person some incident of his title to the shore of navigable waters, may be restrained by a private action. The general character of the state's title to submerged lands under navigable waters has been treated so fully several times within the past few years that there is nothing more that can be profitably said, even if the subject were open to discussion and decision in this case. Therefore we leave it by referring to such prior decisions. Priewe v. Wis. St. L. I. Co.
The only real controversy opon for our consideration is, Are the findings of fact made by the trial court supported by the evidence? That must be answered in the affirmative, and without the answer being accompanied by any extended discussion of the evidence. The record is very long, covering some 355 pages, all of which has been examined with that care necessary to a careful judicial determination of the question. The evidence is conflicting upon many of the material facts, but there is abundance of evidence in the record to the effect that the lake was a navigable body of water *551 after the first drainage, in places, up to within fifty feet of the original shore line of plaintiff's property; that none of the lake bed was uncovered except a strip averaging about 100 feet wide inside the shore line; that aside from that the entire lake bed was covered with water, and during most of the open season of the year it could be traversed by boats for the purposes of fishing and hunting; that such condition was destroyed by the second drainage to the damage of plaintiff; that a restoration of the lake to the condition it was in prior to such second drainage will promote the public health, and that the primary purpose of the act of 1891, under the authority of which such second drainage was made and defendant claims title to the lake bed, was to convert that which was public and held by the state without power of alienation into that which was private, — a manifest excess of constitutional legislative authority.
A contention is made that plaintiff's omission to commence his action till a large amount of money had been expended by defendant under the act of 1891 should be held to preclude him from obtaining equitable relief; that by his silence defendant was permitted to go on and incur expense on the faith of its legislative authority and the acquiescence of plaintiff, and that he should not now be allowed to change his position to the prejudice of the defendant. We are unable to see wherein the attitude of plaintiff misted the defendant in the slightest degree. Its reliance was wholly on the legislative enactment of 1891. There was no benefit which accrued to plaintiff by the second drainage of the lake, but on the contrary it was a serious damage to his property. Seasonably after actual damage to such property commenced, this action was instituted. The court found as a fact that the purpose of defendant's operations was solely to acquire the title to the lake bed, and that its grantor procured the passing of the law of 1891 for that purpose; and it further appears that before it incurred any considerable expense *552
there was a decision by this court to the effect that submerged land of navigable lakes cannot, by legislative enactment, in the furtherance of private interests, be made the subject of private ownership. McLennon v.Prentice,
A literal interpretation of the judgment would render it unnecessarily harsh. It would require a large expenditure of money without any resulting benefit to plaintiff. It may easily be read to require defendant to fill up all the excavations *553 made in the course of its operations under the act of 1891 between Wind lake and Muskego lake, and in the bed of the latter lake. We assume that it was only intended by the judgment to require such filling up of excavations as will restore the natural condition of the water in Muskego lake, as it would exist had there been no attempt to drain the lake under the act of 1891; that so much of the canal between Wind lake and Muskego lake and the canal in Muskego lake must be filled up as will accomplish that result. Such is probably what was in the judicial mind and the judgment may reasonably be read that way. As so understood it needs no modification.
By the Court. — The judgment of the circuit court is affirmed.
Dodge, J., took no part.
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