Arimond v. Green Bay & Mississippi Canal Co.

The following opinion was filed at the January term, 1872. Dixon, O. J. The case in the supreme court of the United States of this same defendant, but of a different .plaintiff, whose lands, also bordering upon Lake Winnebago, w.ere overflowed and injured by the back water caused by the same dam or ob. — 331 — struction of the Fox river (Pumpelly v. Green Bay and Mississippi Canal Company, 13 Wallace, 166), decides many of the questions presented in this case, and in a manner and upon considerations quite to the satisfaction of this court as to all the questions so touched upon and considered. With some slight differences pointed out by counsel, and which we consider immaterial, the three special pleas there examined* and adjudged by the court to be bad as setting up no defenses to that action, correspond entirely to the second, fourth and sixth defenses contained in the answer in the case at bar. The questions in that case, as they do in this, came up on demurrer, there to the pleas and here to the special defenses. The court, professing to act and decide as this court would do upon questions of state statutory construction and legislation and state constitutional law, and upon the examination of several of the decisions of this court bearing upon the quéstions presented, held: First That the act of the territorial legislature authorizing Curtis Eeed and his associates to construct a dam across the northern outlet of Winnebago lake to enable them to make use of the waters of tbe river for hydraulic purposes, was inoperative and conferred no authority for the erection and maintenance of the dam in question, because it incontestably appears from the facts averred that such dam, or any dam suitable for hydraulic purposes, or which would create any water power at all, would inevitably “raise the water of lake Winnebago above its ordinary level," which, by a proviso contained in the second section of the act, it was expressly declared that Eeed and his associates should not do. The language of the second section, so far as it is material, is as follows: “ Said dam shall not exceed seven feet in height above high water mark of said river: provided, that said dam shall not raise the water of lake Winnebago above its ordinary level.” It seems from the opinion that the argument upon this point was the same in the supreme court that it is here. The court say: “It is contended by counsel for the defendants, that the second section of the — 332 — act authorizes them to build, their dam seven feet above high water mark of the river at all events, and that the restriction that the water of the lake shall not be raised above its ordinary level is only applicable to such raising, if the dam should exceed the first limitation; while the counsel for the plaintiff claims that both limitations were effectual, and that if the dam raised the water in the lake above its ordinary level, the law was violated though it may not have reached the seven feet above high water of the river.” The effort seems to be to show that there is some inconsistency or ambiguity in the provisions which can only be reconciled upon the theory first above stated. Counsel say in argument here: “While the language of the proviso is plain, its meaning is ambiguous, and we are left in doubt as to what the intention of the legislature was in using it.” We cannot concur with counsel in this view, that plain language leads to such ambiguity. The intention of the legislature is very plain: first, that the dam in no event should exceed seven feet in height above high water mark of the river ar the place of construction; and secondly, that to whatever height built, whether the full seven feet or under, it should not in any case raise the water in the lake above its ordinary level. The provisions are therefore entirely harmonious and consistent, and counsel must fail in their effort at introducing an ambiguity upon which it was hoped the court would be led to disregard the proviso as being in conflict with the grant itself or the terms of it. Reed and his associates, representing, as we may suppose, that a dam of the height mentioned, constructed at the point named in the act, would not raise the water in the lake above its ordinary level, apply to the legislature for a grant of the privilege of building it; and the legislature, not knowing, and perhaps not caring to investigate, whether a dam so constructed will have that effect or not, grant him the privi* lege, at the same time providing that the dam so authorized, whether seven feet in height above high water mark of the river or of any less height, should not raise the water of the — 333 — lake above its ordinary level. Tbe legislature were willing to grant tbe privilege provided sucb should not be tbe effect of tbe dam, and were very careful to guard against authorizing anything to be done which should have that effect. Such is the plain and obvious interpretation of the act, and no reasoning upon the subject can make it more so, nor at the same time serve to render it in any manner obscure or doubtful. The dam in question having, as appears by admissions of fact contained in the pleadings, had the effect to raise the water of the lake above its ordinary level, the supreme court held it was unauthorized by the act, and built in violation of law; and so the remedy of the plaintiff was not under the provisions of the act relating to mills and mill dams as provided by the second section of the act. And in like manner this court must hold that the dam was entirely unauthorized by the act, and that the right of the defendant in this action to keep it up without making compensation for injuries like those complained of by the plaintiff, so far as such right has been derived by assignment or otherwise from Eeed and his associates, entirely fails. The provisions of the mill dam law are inapplicable, and the common law remedies, to sue for and recover the damages he has sustained, are open to the plaintiff. If any other grounds or reasons for this conclusion were necessary, they would be found, we think, in another branch of the argument of the learned counsel for the defendant, where they contend and show that the obstruction in question was not erected as a dam under the mill dam law, or under the charter to Eeed and others, but as an integral and necessary part of the works for the improvement of the navigation of the river itself, and so as to make the same navigable according to the intention of congress and of the legislature of the state with respect thereto. Second. The supreme court held that the damages of which the plaintiff complains are not such as the state had the right to inflict on its citizens in improving the navigation of a public or navigable river, without making compensation for them. — 334 — The court say that counsel for the defendant, with becoming candor, argued there, as they do here, that such was the right of the state, and that no compensation could be claimed or obtained. This proposition was stated and considered by the court as if the legislature of this state, in projecting a sys tern and providing by law for the improvement of the navigation of the Eox and Wisconsin rivers, had purposely omitted to make any provision by statute for compensation to the plaintiff, or those similarly injured, for damages to their lands. This, we think, was a mistake on the part of that learned court, and it is but proper that we should vindicate the legislature against the imputation (accidental, of course,) of having intended to authorize, even if it had the power, a proceeding so arbitrary and ’at the same time so grossly oppressive and unjust. Sections 17 and following of the act approved August 8, 1848, made express provision for compensation in all such cases. Laws of 1848, 1st Sess., p. 62. It is true that counsel for the defendant argue that such provision was invalid and nugatory because the damages were “ to be paid out of the fund appropriated to said improvements.” Sec. 21. It is said this was an unlawful diversion of the fund from the purpose specified in the act of congress granting the lands, which was that the proceeds of the sales thereof were to be used in “improving the navigation of the Eox and Wisconsin rivers,” etc. This court does not readily perceive how this position can be maintained, or why it was not a perfectly legitimate and proper appropriation of the fund. But be this matter as it may (for it seems not material to the present controversy, and is only alluded to in justice to our own legislature, and to correct what we conceive to have been a mistake on the part of the supreme court), we are entirely satisfied with the reasoning of that court upon the general proposition, and well convinced that nothing else is or could be held as the law of this state than is laid down in the opinion. That the flooding of land by water caused to be set back by artificial obstructions placed in a run335 uing stream is a talcing of sucb land, within tbe meaning of tbe provision of our constitution requiring compensation, to be made where private property is taken for public use, is abundantly established by the decisions of this court referred to in the opinion. The decision of this court in the case of Alexander v. Milwaukee, 16 Wis., 248, is referred to as difficult to reconcile with the other decisions, and as possibly tending to sustain the opposite conclusion, and some shade of doubt is cast upon the correctness of that decision. Whether that case was correctly decided or not, we are clear that it was an extreme application of the doctrine of damnum absque injtcria, and that the principle of it is not to be extended to other and dissimilar cases, or to a case like the present. This court is sensible, as the tenor of the opinion of the supreme court shows, and as is shown by numerous decisions of this court, that that rule is best and most to be preferred, which will work out the greatest measure of justice between the public and individuals, and which will extend the right to compensation to the greatest number of cases where it appears that direct injury has, or, in the ordinary course of the operations of nature, must unavoidably ensue, to the property of private owners by reason of the acts of the public which are complained of. Perhaps the case of Alexander v. Milwaukee was such an one, and ought to have been decided differently. Of the cases where the causing of water to flow upon the land of an individual so as permanently to impair or destroy its value and usefulness, has been held a taking which requires compensation to be made under the constitution, it is probable none stronger can be found than the recent case in this court of Pettigrew v. The Village of Evansville, 25 Wis., 223. The question there was upon the right of the village authorities, without compensation, to turn mere surface water from a natural pond or reservoir standing in the streets upon the land of the plaintiff, which it was not pretended would permanently stand upon or cover tbe surface of the land, but would permanently injure and lessen — 336 — its value; and tbis court beld the authorities of the village had no such right, and could obtain it only through an exercise of the power of eminent domain in the manner prescribed by the constitution. The case of Alexander v. Milwaukee was there also referred to and distinguished. After the decision in that case it is needless to pause upon the point that the flooding and injury of the plaintiff’s lands here was not a taking within the meaning of the constitution. But it is said by counsel here that the supreme court, in its consideration of the clause in the constitution (art. 1, sec. 13) requiring compensation to be made for property taken for pub lie use, omitted to consider other clauses of the same instrument which are thought to have a material influence upon the question ; and reference is made to sec. 2, art. II., sec. 10, art. VIII., and sec. 1, art. IX. We have examined those sections, and are at a loss to perceive how they can be held to operate in favor of the position assumed by counsel. We cannot see how the declaration that the propositions contained in the act of congress admitting Wisconsin asa state of the union, “shall remain irrevocable without the consent of the United States,” nullifies or in any manner conflicts with the requirement of sec. 13, Art. I, that the property of any person taken for public use shall be paid for. Nor do we see how the provision requiring the state to devote the avails of any lands granted to the state for a particular purpose, to the purpose so indicated, in any way interferes with the performance of, or relieves the state from, the duty of making compensation for property taken by it for its use. And neither can we see how the further declaration that the Mississippi river, and the navigable waters leading into it and into the St. Lawrence, and the carrying places between the same, shall be common highways and forever free, can embarrass the state, or any agency which it may employ, in doing justice to injured parties as is declared by sec. 13, art. I., shall be done. The most authoritative, solemn and oft repeated declaration that these waters shall remain common high — 337 — ways and forever free, can apply only to tbe waters themselves, and to tbe channels and natural beds of tbe streams and lakes, and not to tbe dry lands on either side of them. Third. Tbe supreme court, after briefly alluding to tbe facts, tbe same as stated in tbe sixth separate defense in this action, held that the title of tbe land did not come to tbe plaintiff from tbe United States burdened with an easement in favor of improving tbe navigation of tbe Eox river, which authorized tbe injuries complained of, and of which, therefore, be could not complain. Upon this point the court say: “ 'We do not think it necessary to consume time in proving that when the United States sells lands by treaty or otherwise, and parts with the fee by patent without reservations, it retains no right to take that land for public use, without just compensation, nor does it confer such a right on the state within which it lies; and that the absolute ownership and right of private property in such land is not varied by the fact that it borders on a navigable stream. ” Fourth. The court held that a plea intended as a plea of prescription for an easement, to be good, must show an adverse user and enjoyment for a period of twenty years before the commencement of the action. The same proposition has frequently been held by this court. It has thus been seen that the decision of the supreme court is an emphatic denial of the correctness of almost every position assumed by counsel for the defendant in support of the several defenses pleaded in answer to this action. It is almost without necessity that we here again say, that as questions of the construction of our own constitution and laws, we entirely concur in the correctness of the decision of them, and in the reasoning of the court by which the decision is sustained. It may perhaps be expected, after the elaborate arguments which have been submitted by counsel, that something should be said by way of distinguishing this case from those in New York, Pennsylvania, Massachusetts and elsewhere, in which it has been held there can be no recovery of damages and no — 338 — action maintained to restrain proceedings on the part of the public, on account of certain injuries sustained or which will be, by the proprietors of lands bordering on navigable rivers or waters, in consequence of acts done by the public for the improvement of navigation and to subserve the public interest and advantage in that respect. Those cases regard the bed of the stream, with all the water passing in it, as strictly public property, to be used and appropriated by the public, within the banks and below high water mark, just as the public interests and necessities of navigation may dictate or require. Within these limits, that is, within the banks and below the ordinary high water mark in the bed of the stream, the public may, for this purpose, do as it pleases with the water, and the damages resulting to the riparian proprietor are damnum absque injuria. It may change the current or flow of the water from one side of the stream to the other or against one bank or the other; or may obstruct or impede the passage so as to check and slacken the flow and cause the water to set back; or, as has been done in some cases, the water may be diverted or withdrawn entirely from the original or natural bed, so as to make safer and more perfect navigation by some new and artificial channel. In short, the bed of the stream, with the water in it, is regarded by those cases precisely as if it were a belt or strip of dry land of equal length and width owned by the public. In that case the public might dig up the soil on one side and cast it upon the other side of the strip at its pleasure, without liability for injuries to the adjoining proprietors so long as no part of the soil itself was thrown or should fall upon their lands. The pit or excavation on one side with the pile of earth on the other provided they were injurious to the adjoining proprietors, as they well might be, would be damnum absque injuria. The public might dig up and remove the whole soil to the depth and with the irregularites ordinarily found in the channel of a navigable stream or river, and the owners of adjacent lands could not complain. This is what — 339 — every proprietor of land bas a right to do without being required to answer to contiguous proprietors for consequential injuries which they may sustain; and it is what has been held by the cases referred to as the right which the public has and the control which it may exercise for the benefit of navigation, as the owner without qualification, for this purpose, of the bed of the stream and of all the water flowing in it. This, we think, will be. found to have been the turning point and foundation principle of the decisions in all the cases to which reference has been made; and further- remark, in order to distinguish them from the case at bar, is deemed unnecessary. The third defense, setting up that the action did not accrue within ten years next before suit brought, is waived in the brief of counsel for the defendant. It is said to have been inserted by mistake, and is not relied upon. The fifth defense, pleading the act of limitation of April 2, 1862 (Laws of 1862, ch. 184; 1 Tay. Stats., 818, § 42), is bad for several reasons. It is bad for the reason already given, that the dam in question is not a “ mill dam,” and therefore the act is inapplicable. It is bad, also, for the reason that it avers that the dam in controversy had been erected and maintained for the period of ten years when the act was passed, which would cut off the remedy of the plaintiff at once, giving him no time or opportunity to sue, which cannot be done. Mecklem v. Blake, 25 Wis., 500, 501, and authorities there cited. A statute of limitation cannot be applied to such a case. And so far as counsel for the defendant contend for the right of flowage by prescription founded on ten years’ uninterrupted adverse user and enjoyment, in analogy to the ten years’ limitation fixed by statute for bringing actions against persons entering intot’ie possession of lands under claim and color of title, this position also, we think, is untenable. Statutes of limitation are to be construed strictly, and cannot be extended to cases not within their letter. The evidence of adverse possession is also to be strictly construed, and every presumption made in — 340 — favor of tbe true owner. Sydnor v. Palmer, 29 Wis., 226, and cases cited. A prescriptive right or easement inland, acquired by adverse user or enjoyment for a period of time less than twenty years, is and has been unknown to the law, except where it has been otherwise expressty enacted by some statute. There is nothing in the possession of land by the mere unlawful and wrongful act of fiowage, which should lead the court to prefer the ten to the twenty years’ limitation, which last obtains where possession is taken and held without color of title. The resemblance to ¡possession taken and held under the latter statute is much more strong and close, except where the party claiming the right may in good faith have taken a conveyance by metes and bounds of the lands flowed, and held under the same for ten years, in which case a different rule might perhaps apply. But in a case like the present, to depart from the long established and well known rule of the law, would, we think, be unauthorized and productive of much mischief. It would cut off and destroy the remedy in numerous cases where parties sustaining damages have, from one motive or another, delayed to prosecute in reliance upon the rule. If any such change is desirable, it is only proper that the legislature should make it, when it will be attended with no such injurious consequences. Past causes of action would then be saved, and the law, operating prospectively, would bar the remedy only of such as knew or ought to know its existence, and could have saved their rights by the commencement of suit in proper time. It follows .from these views that the order appealed from must be affirmed, with costs, and the cause remanded for further proceedings according to law. ■ By the Court.— So ordered.