30 Wis. 61 | Wis. | 1872
The written findings of fact and conclusions of law of the court thereon were filed with the clerk and final judgment thereupon entered in the court below, on the 10th day of July, 1871. On the 19th day of August, 1871, as appears by the record, written notice of the entry of judgment was served on the plaintiff’s attorney. The exceptions of the plaintiff to the facts found by the judge and to his conclusions of law were not filed with the clerk until the month of December after, and more than ten days after the service of the written notice of the entry of judgment. It does not appear that the time for filing such exceptions was enlarged, either by stipulation of the parties or by order of the court, and they were consequently filed too late and no effect can be given to them. Laws of 1860, chap. 264, sec. 13. 2 Tay. Sts., 1639, sec. 19.
But notwithstanding the want of such exceptions the ques
The circuit court found as a fact, that if the dam in controversy had been constructed to completion in accordance with the intention and plan of the defendant and as the same had been in part -constructed when the injunction in this action was served and further progress of the work arrested, that the same would not have been an obstruction to the navigation of the river with rafts or down-stream bound boats, such as ordinarly navigate the river at that place. As a conclusion of law, the court found and decided that the dam, not thus constituting an obstruction, might be lawfully erected and maintained by the defendant.
It is contended by the counsel for the plaintiff that the defendant as riparian proprietor, or as representing the rights of the riparian proprietor at the point where the dam was being built, has no title or interest in the bed of the stream or the land over which it runs, and does not take usque adfilam aquce as the boundary of his estate, but only to the margin of the river or line designated in the government surveys as the meandered line. In this position the counsel appears to have been expressly overruled by the decision of this court in Jones v. Pettibone, 2 Wis., 319, 320, where it was held that the purchaser from the United States in such case takes to the center of the stream. But the same question was before the Supreme Court of the United States and fully discussed and decided in Railroad Company v. Schurmeir, 7 Wallace, 272, and the conclusions reached by that court were in some respects in conflict with the above decision made by this court. It was there held that under the operation of the laws of congress, the title of the purchaser to lands bordering on a
But it was also held, in Jones v. Pettibone, that the title of the purchaser to the center of the stream was taken subject to the public easement or right of passage and navigation, and when the nature and extent of this easement or right are considered, it will be found for this purpose to be almost or quite immate-terial whether be is regarded as bolding to the center of the river or only to the margin of it. 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 the benefit and improvement of commerce and navigation, will be found to be a most extensive and absolute one. This subject was alluded to, and the general rule of law stated in Arimand v. Green Bay and Mississippi Canal Co., recently decided by this court, where numerous authorities were collected in the briefs of counsel.
This right on the part of the public to regulate and control such navigable streams in the interest of commerce and navigation, includes the right on the part of the legislature to prohibit by statute the erection of any dam, bridge or other structure within or over the same, which may operate to impair or obstruct the free navigation thereof, unless the permission of the legislature be expressly obtained for that purpose. This' power of the legislature to make such rules and regulations as it may see proper to impose for the protection of the rights of the public, was directly recognized and assented to by the Supreme Court of the United States in Yates v. Milwaukee, 10
It is clearly established in evidence, found by the court, and a point not in dispute that the Wisconsin river at the place where the projected dam was in process of construction by the defendant, is navigable in fact, and not a stream which has been merely declared so by statute and the obstruction thereof prohibited. It is a stream capable of and which has long been used for floating rafts and fleets of lumber and logs, and boats loaded with the products of the country, to mill and market, and as such is a public highway. Whisler v. Wilkinson, 22 Wis., 572. It is also a fact not controverted that the dam reaches and is to cross the center and navigable part of the stream, where boats and rafts in their downward passage are and must be floated in order to navigate the river successfully. No license or permission by the legislature to the defendant to erect or maintain the dam is shown or asserted.
Under these circumstances it is impossible for this court to see how, in view of the statutory regulations which exist upon the subject, the conclusions of law of the court below can be sustained or its judgment affirmed. The statute expressly de-dares, not only of such streams as are navigable in fact, but of all meandered streams, which includes many that are not so navigable but are so declared for the purpose of the statute, “that no dam, bridge or other obstructions may be made in or over the same, without the permission of the legislature.” R. S., ch. 41, § 2; 1 Tay. Sts., 749, § 2. The first section of the same statute pursuing the language of the ordinance of 1787 and of the constitution and articles of compact between this state and the United States, enacts that the Mississippi river and the navigable waters leading into it and the St. Lawrence, and the carrying places between the same, shall bd common highways, and forever free, etc., and all must know that the Wisconsin river is one of the streams so included. How, in view
"With respect to the other point involved, as to whether the plaintiff has shown such private and special injury from the obstruction as will enable it to maintain this action, the finding of the court below seems to make it perfectly clear. The court found that the plaintiff had already sustained damages in the loss of tolls to the amount of $600. This was sufficient within the principles laid down by this court in Walker v. Shepardson, 2 Wis., 384, and by other authorities, to enable the plaintiff to maintain its suit in equity to restrain and prevent the further commission of the nuisance and to cause its abatement.
It follows from these views that the judgment appealed from must be reversed and the cause remanded with directions to enter judgment for the plaintiff in accordance with the demand of the complaint.
By the Court.— It is so ordered.