166 Wis. 511 | Wis. | 1918
This action is brought under sub. 1 — 4, sec. 1596, Stats. 1915:
“1. All rivers and streams which have been meandered and returned as navigable by tbe surveyors employed by tbe government of tbe United States and all rivers and streams, meandered or nonmeandered, which are navigable in fact for any purpose whatsoever are hereby declared navigable to tbe extent that no dam, bridge, or other obstruction shall be made in or over the same without the permission of the legislature; but this section shall not be construed to impair the powers granted by law to towns, counties, or cities to construct bridges over such rivers and streams. The consent of this state is hereby given to the acquisition by the United States of all lands and appurtenances in this state which have been or may be acquired by the United States for the purpose of erecting thereon dams, abutments, locks, locklceepers’ dwellings, chutes, or other structures necessary or desirable in improving the navigation of the rivers or other waters within and on the borders of this state, and the United States may hold, use, and occupy such lands and other property and exercise exclusive jurisdiction and control over the same subject to the right of this state to have civil and criminal process*519 issued out of any of its courts executed within and upon said lands.
u2. Any dam, bridge or other obstruction constructed or maintained in or over any navigable waters of this state in violation of the provisions of this section is hereby declared to be a public nuisance, and the construction of any such dam, bridge or other obstruction may he enjoined or its maintenance abated by action at the suit of the state or any citizen thereof.
“3. .Any person, firm, association of individuals, or corporation violating any of the provisions of this section after January 1, A. 1). 1913, shall forfeit for each such offense, and for each day that any such dam, bridge or other obstruc-. tion is maintained or remains in or over, any such waters, more than fifty dollars, the same to be collected in an appropriate action to be brought and prosecuted by the attorney general or by some other duly authorized person in behalf of the state. Any forfeitures incurred prior to January 1, A. D. 1913, are hereby expressly remitted.
“4. It shall be the duty of the railroad commission to report to the governor any violation of this section, and the governor shall thereupon cause the attorney general, or some other person duly authorized by the governor to act in his stead, to institute proceedings against the violator as provided in subsections 2 and 3 of this section.”
Ey the enactment of ch. 652, Laws 1911, amending sec. 1596, the following changes were made: (1) The prohibitions contained in the section prior to its amendment were made applicable to all waters within the state, meandered or nonmeandered, which are navigable in fact for any purpose; (2) any dam, bridge, or other structure made or maintained in violation of the provisions of the section was declared a public nuisance and its abatement provided for; (3) a penalty was prescribed; and (4) it was made the duty of the railroad commission to cause the act to be enforced.
It may be said at the outset that the enactment of this law indicates a change in state policy respecting the obstruction of navigable streams, and that any one placing an obstruc
By ch. 12, Laws 1853, the state policy with reference to navigable streams was declared as follows:
“Sec. 2. All rivers and streams of water in this state in all places where the same have been meandered, and returned as navigable by the surveyors employed by the United States government, are hereby declared navigable to such an extent, that no dam, bridge, or other obstruction, may be made in or over the same, without the permission of the legislature: Provided, that nothing herein contained, shall be construed so as' to affect any act now in force granting to towns, or county boards of supervisors, the power to erect, or authorize the construction of bridges across such streams.
“Sec. 3. The boundaries of lands adjoining waters, and the several and respective rights of individuals, the state, and its citizens, in respect to all such lands and waters, shall be determined in conformity to the common law, so far as applicable as evidenced by judicial determinations in other states, in which the courts in such cases have adhered to its principles. ...”
In a long line of decisions beginning with Jones v. Pettibone, 2 Wis. 308, decided at the December term, 1853, and ending with Metropolitan Inv. Co. v. Milwaukee, 165 Wis. 216, 161 N. W. 785, decided at the January term, 1917, the rights of the public and of private parties in and to the banks, waters, and beds of the navigable streams of this state have been discussed and stated so frequently and so fully that a discussion at this time is needless. However, certain fundamental principles which have been established may be briefly
Upon the organization of the several states' the title to the beds of all streams navigable in fact vested in the states in trust for public purposes. Willow River Club v. Wade, 100 Wis. 86, 109, 76 N. W. 273; Barney v. Keokuk, 94 U. S. 324.
At common law a navigable stream was a public highway subject to public use, and the right of passage over it extended to all parts of the channel, and to abate an obstruction as a nuisance it was not necessary that the obstruction should actually have interfered with navigation; it was sufficient if it rendered it less convenient and less useful. Angell, Watercourses (7th ed.) § 554; Slate v. Narrows Island Club, 100 N. C. 477, 6 Am. St. Rep. 618; Pascagoula B. Co. v. Dixon, 77 Miss. 587, 28 South. 724, 78 Am. St. Rep. 537.
By the enactment of ch. 12, Laws 1853, as re-enacted and .re-affirmed at various times, the legislature declared the policy of the state with reference to all streams included within its terms, and thereby gave to all the waters therein described the incidents of navigable streams at common law, so far as they are navigable in fact; and the distinction theretofore existing between tide and nontidal waters as to navigable character was abolished. Willow River Club v. Wade, 100 Wis. 86, 99, 104, 76 N. W. 273. See Farnham, Waters, § 24 and cases cited.
While since the decision in Jones v. Pettibone the doctrine that the title of a riparian owner on a navigable stream extends to the center or thread of the stream has been and still is rightly adhered to, this court has from that time to this never ceased to assert that the title of the riparian owner to the bed of the stream is a qualified title and subject to the public right of navigation with all its incidents. Jones v.
The right to maintain a navigable river free of all obstruction to navigation, as that term was understood at common law, is not inconsistent with such private ownership of the bed of the stream. Wisconsin cases cited above; The Magnolia v. Marshall, 39 Miss. 109; Pascagoula B. Co. v. Dixon, 77 Miss. 587, 28 South. 724, 78 Am. St. Rep. 537; McLennan v. Prentice, 85 Wis. 427, 443, 55 N. W. 764; Priewe v. Wis. S. L. & I. Co. 93 Wis. 534, 67 N. W. 918; U. S. v. Chandler-Dunbar W. P. Co., supra.
If the right of the public to have the navigable streams of the state kept free from obstruction has been modified to any extent, it has been so modified by the force and effect of a state policy so long adhered to as to have become a rule of property, thereby vesting certain rights in the riparian proprietor by implication of law. Willow River Club v. Wade, supra. This modification, if such it is, having been sanctioned by the courts and long adhered to, must, under the doctrine of stare decisis, be held to have established a rule of property, and at least so far as rights have accrued
With these well established principles in mind, we proceed to a consideration of the status of the property in question. A careful reading of the findings in this case, as well as of the showing made in State v. Carpenter, 68 Wis. 165, 31 N. W. 730, and in Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, clearly shows that the situation existing in the Rock river at the place in question is in many respects peculiar perhaps to that river and to that place. Rock river, judging from the number of dams, is a comparatively rapid running stream; it appears to be a slowly rising stream, due to the fact that it runs through a comparatively level country abounding in lakes and having a slow run-off. Flood waters apparently reach it slowly and are rapidly passed away.
Apart from the provisions of sec. 1596 as amended by ch. 652, Laws 1911, substantially the exact situation presented by the facts as found by the trial court in this case has been twice before this court, and in these cases this court held that structures of substantially the same kind and extent as are found to exist in this case by reason of the peculiar circumstances found in connection therewith were structures which could not be abated as a nuisance at the suit of the state or private parties. State v. Carpenter, supra; Janesville v. Carpenter, supra.
In reliance upon these decisions large investment has been made, property rights have grown .up, and, as before stated, these rights so far as vested should be protected. This court at this time is not at liberty to pass upon the situation presented by the findings in this case as an original proposition, and it is not necessary for us to say whether or not we would upon these facts as an original question arrive at the same conclusion. It is our duty in administering the law to rec
On behalf of the state it is claimed that by the enactment of ch. 652, Laws 1911, the situation has been changed. If by this is meant that the defendant or those similarly situated may, without compensation, be summarily deprived of valuable property rights which accrued prior to the enactment of said chapter, see. 1596 as amended so considered and applied would be invalid. It must therefore be held that the provisions of sec. 1596 as amended do not affect the rights of the defendant accrued at the time of the enactment of ch. 652, Laws 1911. Structures of the character of those complained of in this case, similarly situated and erected prior to the enactment of ch. 652, having been declared to be lawful and not nuisances, cannot be made such by mere legislative fiat. Water Power Cases, 148 Wis. 124, 145, 134 N. W. 330. While the evidence discloses a situation at Janesville which may in some of its aspects be deemed inimical to the public welfare, it is nevertheless true that, if the situation is to be changed, it must be done by lawful and constitutional methods, and it cannot'be done by depriving private citizens of property rights without just compensation.
While the exact date of the erection of the building is not shown, it appears to have been erected some time during the early nineties,- at any rate long prior to the enactment of ch. 652, Laws 1911. It must be held, therefore, that the building described in the complaint cannot be removed as a nuisance within the rules above stated, and that the judgment of the circuit court is right.
By the Oourt. — Judgment affirmed.