82 Wis. 647 | Wis. | 1892
The following opinion was filed June 15, 1892:
The testimony taken in this case, as contained in the printed case even, is very voluminous. The statement of facts will be brief, but sufficient to show the legal
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The entire water-power afforded by the river is about 3,000 horse power.
In 1849 Amos Lawrence owned the land on the north
In 1877 the water-power owners on both sides of the north channel of the river at this point, together with business men and citizens of the city of Appleton, in order to improve and build, up the city, obtained a charter of a company without stock, and raised a fund of $9,185 for the purpose of further improving said water-powers; and said Edwa/rd West, the plaintiff, and Anson Bullard, who was interested in the water-power on the north side of the north channel, became subscribers to said fund. Said fund was used by the company in building a dam across the north channel of the river, starting from the foot of said wing dam built by Lawrence on the north side of the north channel, and extended south to near the head of the island, and, if extended a few feet further, would have reached the island about twelve feet below the head of it in its natural condition; and this gap was filled by a wing wall coming down to the island as it then was, on a line with and using a part of a retaining wall built by West up from the north side of the island. The wing dam built by West from the north side of the head of the island out into the
This is a brief statement of the facts found by the court. The learned judge before whom this case was tried personally inspected these water-powers and the constructions by which they have been made available to the parties, and he was therefore peculiarly well qualified to understand and weigh the testimony, in view of these physical monuments. It is impossible for this court to be as well qualified as the trial court to correctly find the facts. "We shall, therefore, accept the findings as verities in the case.
There are really only two questions on which the judgment depends, and they are, (1) whether the defendants’ power on the north side has been made available by them at a point opposite and below the head of the island in its natural state; and (2) what proportion of the waters of the river naturally flow in the south channel and the south half of the north channel. To ascertain these facts a great many witnesses who were personally cognizant of these natural conditions many years ago had to be examined, and testified from their recollection. It is not strange that there was considerable difference in their recollection of such conditions. They did not observe these physical con
The principles of law on which the plaintiff’s case depends are not many, but are important, and appear to be well settled, although arising upon somewhat novel and peculiar conditions. The Eox river, on the cross line of the dams which furnish water-power to both parties, is divided by this large island, which has been surveyed, meandered, and sold by the United States. The contention of the learned counsel of the respondents is, first, that riparian ownership attaches to this island, the same as to the main shores- of the river. This is not contested by the learned counsel of the appellants. This principle is necessary to the plaintiff’s claim to more than one half of the river, and seems to be well established by the authorities cited in respondents’ brief, and rests in reason as well. Where the main-land on both sides of the stream, and the island dividing the stream, have been all and separately surveyed and sold to different persons by the government, it follows by necessary implication that the island was reserved from the grant of the main-land, and the filum aqum is established in the center of the channels on both sides between the main-land and the island. To each owner of the opposite . main-land the island becomes the opposite shore, and as to them two fila aquas are established. Eiparian rights are valuable property, and are attached to all land bordering
Second. It follows, therefore, that the plaintiff is entitled to the natural flow of the south channel where his dam is situated, for hydraulic purposes, and the whole thereof, by reason of his being the owner of the island on one side, and of the mainland on the other. Smith v. Ford, 48 Wis. 116; Wall & Co. v. Cloud, 3 Humph. 181; Medway Co. v. Romney, 9 C. B. (N. S.), 575. The full expression of the plaintiff’s right to the water-power to this extent should be that he is the owner of the abutting land, and still owns the riparian rights thereof, or the owner of the right of flow-age or use of the abutting land for the purpose of landing a dam thereon, and the owner of the dam built for the purpose of making the water-power at that point available. Lawson v. Mowry, 52 Wis. 219. This may answer the rather technical discussion of counsel on that subject.
So far, then, the plaintiff has established his right to an injunction against the defendants from using to exceed
Second. That the true line between opposite riparian proprietors should be a direct line across the river. It will be presumed that the circuit court found the point where the defendants’ dam abutted on the north shore to-be opposite to the island, upon the correct rule, unless it appears otherwise. There would appear to be margin enough, in the distance — that the upper end of the island was above the dam of the defendants — to admit of any reasonable rule upon that question.
Third. That the plaintiff’s dam is an obstruction to the navigation of the river. This question is not involved in this case. It appears to be clear enough that the river is not navigable at this point. The United States constructed a canal around the rapids in the' river at this place to be used for navigation in place of the river proper, and for the reason that the river was not navigable.
Fourth. That the plaintiff’s dam causes the flowage of lands above. Both parties have the right to flow lands above, under the mill-dam act. That is a question, however, between the land-owners above and the mill-owner at the dam, and not between the mill-owners themselves. To consider that question in this case would be trying another and new case, and that, too, without parties.
Fifth. The manner in which the parties return the water to the river below their dams and mills has nothing to do with the question here involved, which is, What proportion of the river and power belongs to each of the parties? and •the remedy is an injunction against the use of an excess of such proportion. Each party is under a legal obligation not to use his power to the injury of the other; The use of the power is not sought to be regulated in this action. None of these contentions appear to affect the right of the
For convenience I have used the terms plaintiff and defendants. The parties in interest will appear from the record. This is a very important suit, and has been presented to this court by very able and eminent counsel in the best manner possible. We have felt compelled to accept the findings of the court upon the questions of fact, without any particular examination of the testimony to ascertain their correctness, for the reasons already suggested. On the findings of the court the legal conclusions, as above, •appear to be clear and indisputable.
By the Court.— The judgment of the circuit court is affirmed.
A motion for a rehearing was denied September 27,1892.