Wells v. Wisconsin River Power Co.

| Wis. | Apr 30, 1918

WiNsnow, 0. J.

The question in the case is whether the Power Company must'make compensation for the injury to lands which are made permanently unfit for agricultural purposes by the backing up of water by its dam as well as for lands which are actually overflowed.

This depends on the legislation under which the Power Company is acting, and an examination of that legislation clearly shows, we think, that the question must be affirmatively answered.

The Power Company obtains its authority to maintain the dam by virtue of a grant of power made to certain persons (of whom the company is the assignee) by ch. 189, Laws 1907. This act evidently contemplates- that the licensees shall make compensation for injuries to lands not flowed as well, as for lands actually flowed.

By sec. 2 of the act it is declared that “In case it shall be necessary to take, flow or injure” any lands or property for tbe purpose of tbe construction or use of tbe dam tbe licensees shall be subject to tbe provisions and entitled to all tbe benefits and remedies of cb. 146, Stats. 1898 (tbe milldam act). By sec. 3 of tbe act it is further provided that “for acquiring tbe necessary lands or rights, easements or privileges in lands” necessary for tbe complete and successful construction of tbe dam and improvement of navigation, tbe said licensees may enjoy tbe rights granted to corporations by secs. 1 111 to 1 lile inclusive, Stats. 1898, and tbe amendments thereto.

Turning to tbe statutes last named we find that they have to do with log-driving corporations, which are authorized to improve streams with flooding dams, booms, etc., and are given powers of condemnation for that purpose. Tbe most significant of tbe sections referred to is sec. 1 lile, in which it is provided that such corporations may acquire title to necessary lands or easements by purchase or lease or by eminent domain, “and in case it shall be necessary to take, flow or injure lands and property in tbe construction of tbe works . . . such lands and property or easements therein may be acquired” in tbe manner prescribed by tbe statutes with reference to condemnation by railroads.

In our judgment tbe word “injure” in this statute as well as in tbe statute licensing tbe construction of tbe dam was intentionally inserted and was not intended to be construed in its technical legal sense, i. e. an actionable' wrong, but rather in tbe popular and usual sense, namely, an act resulting in damage. If tbe word were to be construed in its strict technical sense tbe insertion of it in tbe statute would accomplish little, if anything; construed in tbe usual sense, however, it becomes a reasonable and just provision requiring tbe licensees to make compensation for all damage inflicted by their enterprise.

If authority be necessary to support this reasoning it may be found in U. S. v. Alexander, 148 U.S. 186" court="SCOTUS" date_filed="1893-03-06" href="https://app.midpage.ai/document/united-states-v-alexander-93549?utm_source=webapp" opinion_id="93549">148 U. S. 186, 13 Sup. Ct. 529, and tbe cases therein collated.

The ease of Huber v. Merkel, 111 Wis. 355, 94 N.W. 354" court="Wis." date_filed="1903-04-17" href="https://app.midpage.ai/document/huber-v-merkel-8187581?utm_source=webapp" opinion_id="8187581">94 N. W. 354, which touches upon the right of a property owner to ’ sink wells on his own land and allow the water to run away, although the flow of water in an adjoining owner’s well is thereby diminished, has no application here. In authorizing the erection of this dam the state could impose such terms as it chose, and the licensees must conform to them. They have no other rights save those which the legislature gives them.

By the Court. — Order afSrmed.

RoseNberry, J., took no part.