189 Wis. 499 | Wis. | 1926
Lead Opinion
The defendant is a corporation organized, among other things, for the purpose of generating and transmitting electric current for public purposes. It owns and operates a hydro-electric plant and „da.m on the Wisconsin river at the village of Kilbourn, under and by virtue of the provisions of ch. 462, Laws of 1901. This action is brought by the plaintiff town to recover moneys alleged to have been expended by said town in repairing damage suffered by the highways in said town by reason of the maintenance of said dam, in holding back the waters and causing the overflow of said highways. The defendant appeals from a judgment rendered in favor of the plaintiff, and contends that no legal obligation rests upon the defendant company to recoup the town for damages thus sustained. The argument of appellant’s counsel is based upon many fundamental principles, the correctness of which is conceded. Their rea
Assuming that the legislature has the power to authorize a company such as the defendant to overflow the highways of the state and to grant to such corporation complete immunity from liability therefor, the manifest injustice of such action raises the strongest presumption against any such legislative purpose, and requires clear, affirmative expression of such a legislative intent.
In Massachusetts it was contended that the milldam act authorized owners of milldams to overflow public highways, and the fact was pointed out that the milldam act contained no express provision for the compensation of the public for damages resulting from such overflow. The court disposed of this contention by saying: “There being no provision for an indemnity to the public, it seems manifest that no encroachment on the public rights was intended to be sanctioned.” Inhabitants of Andover v. Sutton, 12 Met. (53 Mass.) 182, 187. In considering the exact contention here made by appellant the supreme court of South Carolina, in Edgefield County v. Georgia-Carolina P. Co. 104 S. C. 311, 88 S. E. 801, said: “But such intent will not be lightly inferred; the intent to do so must be a necessary implication of the words of the grant and the purpose of the grant.” These are the only cases cited to our attention which seem to have any direct bearing upon the question here involved, and we think they state the proper rule by which the legislative intent should be tested. The burden of maintaining highways rests too heavily upon taxpayers to justify a presumption that the legislature intended to add to those burdens for the benefit of private interests.
Thus there is reason to believe that until a very recent date there has been a common understanding not only on the part of the public and public officials, but on the part of
By sec. 2 it is declared that “In case it shall be necessary to take, flow or injure any lands and property, or- either thereof, for the purpose or purposes of the construction or use of the dam,” the grantee shall be subject to the provisions and entitled to all the benefits and remedies of ch. 146, Stats. 1898 (the Milldam Act). By sec. 3 of the act it is further provided that for the purpose of acquiring the necessary lands, easements, or privileges in lands necessary for flowage, said grantees may enjoy the rights granted to and conferred upon corporations by secs. 1777 to 1777e, both inclusive, of the Statutes of 1898, and also by secs. 1850 to 1857, both inclusive, of the Statutes of 1898, and such amendments as may have been made to any of said sections. Secs. 1777 to 1777e, inclusive, relate to the powers, duties, and liabilities of corporations organized for the improvement of any stream and driving log's therein, while secs. 1850 to 1857 relate to the exercise of the right of eminent domain by railroad companies. The effect of these provisions is to confer upon the defendant company burdens, privileges, and remedies of the Milldam Act qnd the usual powers of eminent domain in order to enable it to procure title to lands and property necessary for it to take, flow, or injure in the prosecution of its enterprise.
It is claimed that none of these statutes confer the right
Sec. 2 provides that in case it shall be necessary to take, flow, or injure any lands and property, it shall be done subject to all of the provisions of the statutes therein enumerated. The word “injury” as used in this act is not to be construed in its technical legal sense, i. e. an actionable wrong, but rather in the popular and usual sense, namely, an act resulting in damage. “If the word were to be construed in its strict technical sense the insertion of -it in the statute would accomplish little,' if anything; construed in the usual sense, however, it becomes a reasonable and just provision requiring the licensees to make compensation for all damage inflicted by their enterprise.” Wells v. Wis. River P. Co. 167 Wis. 345, 347, 167 N. W. 445. So far as applicable, the remedies provided by the Milldam Act, and the other statutes mentioned in the act, are available to the defendant to enable it to acquire necessary rights so far as such remedies are suitable and efficient for that purpose. It is not to be implied, however, that the liability of the defendant ceases at the point where the remedies of the Mill-dam Act, or the other statutes referred to in the act, end. The defendant, no doubt, is liable for a great variety of damage not covered by the Milldam Act or the other statutes imported into ch. 462, Laws of 1901. The word “injury” as construed by this court in Wells v. Wis. River P. Co., supra, is significant. It is not confined to a technical wrong. It makes the grantees liable for all damage inflicted by their enterprise. The immunity enjoyed by the state from incidental damage resulting from the prosecution of
The appellant contends that the town cannot recover the amount represented by highway taxes worked out by a taxpayer. We can see nothing in this contention. The highway taxes are assessed upon the individual taxpayers the same as any other tax. It is a tax which they owe to the town. The law gives them the privilege of working out this tax or of paying it. In either event it represents taxes paid
While we arrive at the conclusion that the defendant is liable to the town for the damages resulting to- the highways from the maintenance and operation of the dam, we have some difficulty in justifying the amount of the judgment in this case. It goes without saying that the defendant is liable only for such sums as the town has necessarily disbursed in repairing the damage committed by the defendant. It appears that the damaged highways have been in existence from a very early day. They are located on-bottom lands. They have always been overflowed to a greater or less extent during high water, freshets, and floods. The highways in question never were easily maintained, and the town always was required to make expenditures for the purpose of keeping them in repair. There is testimony, which testimony is reduced to the form of tables appearing in the record, comparing the extent of overflow since the construction of the dam with the overflow prior to such construction. This testimony and these tables justify a finding that the waters of the Wisconsin river have trespassed upon the highways to a greater extent than they did before. There is also evidence that since the building of the dam there is a side current which does greater damage to the highways than resulted before the construction of the dam. .But these comparisons do not very definitely indicate the additional burden imposed upon the town for their repair. The court rendered judgment in favor of the town for all sums expended for the repair of these highways during the years 1917 to 1924, inclusive. In other words, the court proceeded upon the assumption that but for the presence of the dam the town would have incurred no expense whatever for repair of these highways during the seasons of 1917 to
The judgment further provides: “It is further adjudged and decreed that the defendant be and is hereby ordered and commanded to repair any and all damage or washing to said highways mentioned in the complaint hereafter caused by the waters of said dam.” We disapprove of this provision of the judgment. It is plain that, the legislature having authorized the defendant to maintain the dam at a given height, a court can neither directly nor indirectly enjoin the defendant from maintaining the dam in accordance with legislative permission. To enjoin it from doing damage or producing results which are inevitable from maintaining the dam in the manner authorized by the legislature is equivalent to enjoining the company from maintaining the dam at all. A court, therefore, cannot enjoin the defendant from committing damage which is the necessary and inevitable result of.maintaining the dam..
It is said, however, that the injunctive provision-of the judgment does not go to that extent. Probably this is true. But, whether the mandatory injunctive feature of the judgment is within the power of the court to render, it is apparent that it is difficult if not impossible of enforcement. The defendant can be compelled to repair only the damage for which it is responsible. That it is not responsible for all the damage resulting to these highways by reason of overflow or floods is apparent from what already has been said.
The judgment will be reversed, and cause remanded with directions to redetermine the damages. This may be done upon the evidence taken upon the former trial and upon such further evidence as the parties may produce. Mitchell Realty Co. v. West Allis, 188 Wis, 305, 206 N. W. 193.
By the Court. — So ordered.
Dissenting Opinion
{dissenting). With so much.of the majority opinion as determines that there is a right of action to recover for amounts expended in repairing town highways damaged by the back water of defendant’s dam I cannot agree.
It is conceded that the defendant’s dam built in 1909' was erected across one of the navigable streams of this state which, under the constitution, art. IX, sec. 1, must remain forever free to the citizens of the United States as well as to the inhabitants of this state, and that such dam was erected and has been maintained pursuant to the express legislative authority given by ch. 462 of the Laws of 1901.
This chapter by its title authorized the building and maintaining of this dam for two express purposes: First, to improve the navigation of the Wisconsin river above the dam; and second, for the purpose of creating hydraulic power.
The right to alter, amend, or repeal this chapter was expressly reserved. -
Of the foregoing four express grants the first needs no consideration here, and the second, or the chapter on mill-dams, as it was.then found in the Statutes of 1898, was by sec. 3374 confined to the maintaining of water mills and dams to raise water for working them upon and across any stream that is not navigable. (This was expressly held to exclude streams declared to be; or in fact, “navigable or public highways.” Wood v. Hustis, 17 Wis. 416, 418.) Said chapter on milldams also provided for the regulating of the height of the dam and the period of time for which it may be kept up each year, by verdict of jury (secs. 3376, 3381), and provided an exclusive remedy for compensation to any person whose land was overflowed or otherwise injured and which right was lost if not' asserted within three years. McDonald v. Apple River P. Co. 164 Wis. 450, 456, 160 N. W. 156.
Manifestly here the permission to construct the dam across
In the third of the above specified methods, namely, the acquiring of necessary lands, rights, easements, or privileges so that “the complete construction of the dam may be successfully carried out” (to quote from the grant), they were to have the rights enjoyed by corporations under secs. 1777 to 1777e, which were particularly applicable because from their very terms they relate to navigable streams. • These particular provisions gave the right to flow lands and to acquire property and specify -the methods of obtaining and paying for the same, and expressly provide, sec. 1777e, that such corporation may exercise the right of eminent domain and may acquire it in the manner prescribed in ch. 87 of the Statutes of 1898, namely, the railroad -eminent domain statutes, covered and included in the fourth of the above specified grants.
In the fourth grant, which dips into the chapter regulating railroad corporations and takes therefrom certain express statutes relating to the power to acquire lands and interests therein and providing the method in which the constitutional provision for compensation shall be met for taking of private property, there are several important features to be here considered. One is that whereas the legislature, by ch. 462 of the Laws of 1901, supra, twice clothes the grantees there
The legislature has no power under the constitution to authorize the construction of such dam except when, as was expressly declared in the present instance to be the purpose, as an aid to navigation’ the right to use the power being but an incident (In re Southern Wis. P. Co. 140 Wis. 245, 261, 122 N. W. 801), and as is stated in the same case
That property devoted to one public use such as that for a land highway may be subjected by legislation to 'another public use, either with or without compensation, because the constitutional provision as to compensation for private property does not apply, is well established law. 20 Corp. Jur. 599; Kilbourn v. Southern Wis. P. Co. 149 Wis. 168, 182, 183, 135 N. W. 499; In re Milwaukee Southern R. Co. 124 Wis. 490, 501, 102 N. W. 401; People ex rel. Palmer v. Travis, 223 N. Y. 150, 166, 167, 119 N. E. 437; Prince v. Crocker, 166 Mass. 347, 362, 44 N. E. 446.
That the highway here, in which the town is interested only as an arm of the state to carry out a governmental function, and for default in which carrying out it is liable to third persons injured by express legislative declaration only (Uecker v. Clyman, 137 Wis. 38, 118 N. W. 247), ought to stand in no better, higher, or different position than the state itself if its property, were injured by 'the building or maintenance of a dam on a navigable stream by express ■legislative grant, would seem to be a reasonable conclusion. If this were the state itself complaining, it would be foreclosed from relief by what this court said in Black River Imp. Co. v. La Crosse B. & T. Co. 54 Wis. 659, 11 N. W. 443, particularly what was said'at p. 676, viz.:
“At the time the charter was granted to the plaintiff, the lands along the river where it would be necessary to make embankments and levees, were, to a great extent, owned' by the state; and as there were no means provided by the charter by which the corporation could -acquire the right to make such embankments or levees upon the state lands by*514 making compensation to the state, while the charter contained provisions for acquiring the right from private owners, although such provisions may have been insufficient to accomplish that purpose, it would seem to be a fair inference that the legislature intended to. grant the right of such use to the corporation without compensation as to all lands owned by it which it would become necessary to use in executing the purposes of the grant.”
As against one doing all that it is claimed causes the alleged injury by direct legislative warrant and which it cannot “successfully carry out” without maintaining the height of water alone responsible for the injury, there ought to be shown clear constitutional or legislative warrant for the right to maintain this perpetual and ever renewable claim. The necessity of legislative warrant for compensation is discussed in such cases as Eltor v. Tacoma, 228 U. S. 148, 33 Sup. Ct. 428, holding (p. 150) that a city as agent of the state in making streets in a governmental function is not liable for consequential damages in absence of legislation so providing, and in Mitchell v. U. S. 267 U. S. 341, 45 Sup. Ct. 293; Joslin Co. v. Providence, 262 U. S. 668, 675, 43 Sup. Ct. 684; In re Board of Water Supply, 211 N. Y. 174, 183, 105 N. E. 213; Earle v. Comm. 180 Mass. 579, 583, 63 N. E. 10.
The liability, if any, of the defendant ought, it would seem, to fall under some recognized principle of law under which one can be held liable by reason of the use of his own property causing injury or damage to another. There is clearly here no express statutory liability. Neither is there here any liability arising upon contract, as there was in the case of Levis v. Black River Imp. Co. 105 Wis. 391, 81 N. W. 669; Dekorra v. Wis. River P. Co. 188 Wis. 501, 205 N. W. 423. If it be predicated upon the theory of a tort — that is, that the defendant has breached some duty or obligation that it owes to the town, — it would seem that it could only fit in with the theory that by main
There is no possible way suggested in which the defendant can maintain the dam at the prescribed height across the Wisconsin river and avoid the back water in time of high flood from coming upon these highways; so that if it is to be held liable because creating a nuisance, such nuisance arises from the defendant doing exactly that and nothing more than which the state has expressly said it may lawfully do. The defendant clearly could .not be prosecuted for a misdemeanor on the theory that it was maintaining a public nuisance. Stoughton v. State, 5 Wis. 291; State v. Webb’s River Imp. Co. 97 Me. 559, 55 Atl. 495.
Again, it must be remembered that inasmuch as it has been expressly held by this court in Cohn v. Wausau Boom Co. 47 Wis. 314, 324, 2 N. W. 546, that such corporation is a gMoyi-public corporation (Att’y Gen. v. Railroad Cos. 35 Wis. 425), an agent of the state for the improvement
There is cited in the majority opinion Wells v. Wis. River P. Co. 167 Wis. 345, 167 N. W. 445, which held that the injury to a person whose land was rendered unfit for agricultural purposes by reason of the stoppage of its underground drainage by the back water of the dam was within sec. 1777e, supra, in that the owner could, in condemnation proceedings, obtain compensation for such because he was injured, as that word was used in said statute. That case did not hold that there was any common-law right of action for such, but only that it was to be compensated for in the eminent domain proceedings, and certainly not that it gave rise perpetually to a new right after each flooding, as is the holding by the majority here. If the doctrine of that case were applied here, then, if not barred by.the statute, there could be but one assessment of- damages, and that final.
The case of Inhabitants of Andover v. Sutton, 12 Met. (53 Mass.) 182, also cited in the majority opinion, was an action against the company maintaining a dam upon a wow-navigable stream, and it was there held that there is no remedy provided under their Milldam Act (applying only to non-navigable streams and substantially the same as ours) for an injury to a highway, and that therefore the town had its right of action at common law because no remedy was afforded under the Milldam Act; but the court there expressly stated (p. 187) that under the facts there shown, an indictment against the defendants for a nuisance in overflowing the road would have been sustained. There, of course, the dam, being built under the general authority of thé Milldarn Act by private persons at their own peril as to
I am authorized to state that Mr. Justice Rosenberry and Mr. Justice Doerfler join in this dissent.
