204 Wis. 479 | Wis. | 1931
Lead Opinion
The following opinion was filed February 10, 1931:
The first relief prayed for in the plaintiff’s complaint is that the Railroad Commission of the
On the other hand, under the Uniform Declaratory Judgments Act (sec. 269.56, Stats.), the plaintiff being desirous of erecting a building upon the site of the building now occupied by it, the case comes within the purview of that act when the plaintiff seeks to have declared its right to erect
“This easement, or right of the public to regulate, control, and direct the flow of the navigable waters, to impede or accelerate such flow, to deepen the channel or to remove obstructions found in it, or to change the direction of the current from one bank of the stream to the other, or to make an entirely new channel, and, in short, to do anything within the banks of the stream itself which may be considered for thé benefit and improvement of commerce and navigation, will be found to be a most extensive and absolute one.” Citing Arimond v. Green Bay & Mississippi Canal Co. 31 Wis. 316.
The proposition there laid down has been many times approved and reaffirmed and it still is the law of this state. Fox River Paper Co. v. Railroad Comm. 274 U. S. 651, 47 Sup. Ct. 669, 71 Lawy. Ed. 1279. We are not concerned here with the power of the state to vest any right to occupy the bed of a navigable stream in a riparian owner. Such power, great as it is, is still subject to some limitation. Milwaukee v. State, 193 Wis. 423, 214 N. W. 820. The state has made no attempt to confer any rights upon the plaintiff
This combined with the allegation found in paragraph III that there has been no navigation of the river for many years north of the city of Sterling, Illinois, and “that said river is not now navigated and in its present condition is not
On behalf of the plaintiff it is argued that under the doctrine of State v. Sutherland, 166 Wis. 511, 166 N. W. 14, and the preceding cases of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, and State v. Carpenter, 68 Wis. 165, 31 N. W. 730, the plaintiff has a vested right protected by the constitutional guaranties to maintain the proposed structure in the manner indicated. This requires an examination of these cases. State v. Carpenter was a case upon information by the attorney general praying that an injunction be issued to restrain the defendant from driving piles within the channel and low-water mark of Rock river within the city of Janesville as a foundation for the construction thereon of a large building. The question in that case was stated by the court as follows:
“Outside the record, we may take judicial knowledge that said river, for a great many years, within cities and villages and in other places, has been obstructed by mill-dams, bridges, and buildings, in a similar manner, through this state and the state of Illinois, and that said river has not been practically and in fact navigable or used, needed, or required for navigation in the way of transportation or travel. This being the condition of Rock river within the city of Janesville and elsewhere, was it an abuse of discretion for the circuit court to dissolve the injunction? Perhaps the question should be broader than this, in order to settle, for the time and under the present conditions, the question whether*488 an injunction at the suit of the attorney general ought to have been granted or continued in such a case.”
After considering at length the evidence with respect to the navigability and the use of the river for the purposes of navigation, the court said:
“It is not probable that any one, much less the attorney general, would concern himself about a stream which has been so long abandoned for-all purposes of navigation, and completely obstructed in so many places, and not needed or used for such purposes, and neither the public nor individuals have suffered any injury or inconvenience thereby. When any one in good faith shall have the means of using this river for the legitimate purposes of navigation, and shall desire to use the same for such purposes, it will be time enough for him or the attorney general to complain; and the courts of law will afford,, in such an exigency, an ample remedy. . . .
“We do not think that the circuit court abused its discretion in dissolving the injunction.” . . .
Far from holding that the riparian in that case as an incident to his ownership had a right to erect the piers in question, the court merely held that the circuit court did not abuse its discretion in denying the state, at the suit of the attorney general, aid of a court of equity.
Janesville v. Carpenter, supra, was an action brought by the city to restrain the defendant Carpenter from driving piles in the bed of Rock river for the purpose of erecting thereon a building. Ch. 423 of the Laws of 1887 provided that it should be unlawful and presumptively injurious to persons and property to drive piles, etc., in Rock river within the limits of the county of Rock, and that the doing of any act forbidden by the law should be enjoined at the suit of any owners or lessee of the right to use the water of said river to operate any mill, etc. This act was held unconstitutional and void on the grounds (1st) that it deprived riparian owners of property without compensation; (2d) that it was
Manifestly the action was one to eject the riparian owner from the bed of the stream at a point where the structures erected by him did not interfere with navigation. In fact it was not held in any of these cases that if any of the structures erected or proposed to be erected should thereafter be found to be obstructions in fact to navigation in the stream, they could be maintained as against the state asserting its right to remove the same in aid of navigation. Under our decisions, from Jones v. Pettibone, 2 Wis. 308, and Wis. River Imp. Co. v. Lyons, 30 Wis. 61, down, it has. been consistently held that the right of a riparian to erect structures in a navigable stream is subordinate to the right of the state to improve the stream in aid of navigation. This right was vindicated in Black River Imp. Co. v. La Crosse B. & T. Co. 54 Wis. 659, 11 N. W. 443, and Cohn v. Wausau Boom Co. 47 Wis. 314, 2 N. W. 546.
So that it must be settled despite some language used in Janesville v. Carpenter, supra, that the right of the riparian under such circumstances, even where the structures are in aid of navigation, must yield to the rights of the state when asserted by itself or its agent for the purpose of aiding and improving navigation. Cohn v. Wausau Boom Co., supra.
If the complaint in this case contained an allegation that the proposed structure would constitute no obstruction to the navigation of the river, that allegation could only relate to conditions as they now exist. Even under the Declaratory Judgments Act, courts are not required to assume the role of prophets. No one can say that at some future time Rock river may not be regarded as navigable in fact and that a structure so placed would not constitute an obstruction to such navigation. If such became the fact, the state then, in
By the Court. — The order appealed from is reversed, with directions to the trial court to sustain the demurrer and for further proceedings according to law.
The following opinion was filed May 12, 1931:
30.01 (2) All rivers and streams which have been meandered and returned as navigable by the surveyors employed by the government of the United States, and all rivers, streams, sloughs, bayous and marsh outlets, whether meandered or nonmeandered which are navigable in fact for any purpose whatsoever are hereby declared navigable to the extent that no dam, bridge, or other obstruction shall be made in or over the same without the permission of the legislature.
31.23 (1) Every person or corporation that shall obstruct any navigable waters and thereby impair the free navigation thereof, or shall place therein or in any tributary thereof any substance whatever that may float into and obstruct any such waters or impede their free navigation, or shall construct or maintain, or aid in the construction or maintenance therein of any bridge, boom or dam not authorized by law, shall forfeit for each such offense, and for each day that the free navigation of such stream shall be obstructed by such bridge, boom, dam or other obstruction, a sum not exceeding fifty dollars. But the floating or movement of logs or timber in navigable waters, or the necessary use of temporary booms in the course of such floating or movement shall not incur such forfeiture.
Rehearing
(on motion for rehearing). Plaintiff and respondent in the above entitled action made the following motion:
“Now comes the above respondent, S. S. Kresge Company, and respectfully moves the court for a rehearing and for a mandate containing a definite declaration and definition of its legal right, as regards the replacement of the existing building with the proposed new building involved in this action, to the end that it may be decided and the parties informed of their rights respecting the matter involved under the conditions now existing as regards Rock river as set forth in the complaint and at the point in question, and di*492 recting the judgment to which respondent is entitled on the facts alleged and under the Declaratory Judgments Act.”
In the brief it is said:
“The mandate reverses the order appealed from, directs the trial court to sustain the demurrer, and for further proceedings according to law. As regards the prayer for an injunction against the Railroad Commission, no fault is found with this mandate, as already stated, but the silence of the mandate respecting the prayer for a declaratory judgment leaves no guide whatever as to the disposition of this case except upon the theory that the complaint does not state facts sufficient to entitle plaintiff to some judgment in that regard. The Declaratory Judgments Act, sec. 269.56 (1), provides:
“ ‘Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.’
“This provision contemplates that in an action thereunder a judgment declaring the rights involved shall be rendered. Of course, that does not mean that, if the facts alleged do not support the right claimed by plaintiff, no declaratory judgment shall be entered in the action. The facts presented may support the right claimed by defendant. In either event the declaratory judgment would follow and establish whatever right the facts justified.”
It must be remembered that the case was here upon demurrer; that the complaint combined a prayer for equitable and declaratory relief. Upon the record as it stood the court was hesitant to foreclose the question from further consideration. The court is made aware upon demurrer only of such facts as are stated in the complaint. Other facts may or may not exist. As to that situation the court knows nothing. Therefore, the customary practice was followed in order that respondent might, if it was so advised, amend its
Motion for rehearing denied, with $25 costs.