Underwood Lumber Co. v. Pelican Boom Co.

Cassoday, J. The Pelican Boom Company was created and organized without stock in 1882, under ch. 86, R. S., and the several acts amendatory thereof, for the purposes set forth in the foregoing statement. Before the grievances complained of, the articles of incorporation of the company were amended, and the same was thereby made a stock company; and the property belonging to the Browns and Anderson, and the rights, authority, and power acquired by them under ch. 217, Laws of 1882, and ch. 253, Laws of 1887, were transferred and conveyed to said corporation, as set forth in said statement. Since such rights, authority, and power were by said chapters 247 and 253 expressly granted, not only to the Browns and Anderson, but'to their “ heirs and assigns,” there can be no question but what the Browns and Anderson were thereby empowered to make such transfers and conveyances to the boom company. Willamette Mfg. Co. v. Bank of British Columbia, 119 U. S. 191; Green Co. v. Conness, 109 U. S. 104; Clark v. Barnard, 108 U. S. 436. It is equally apparent that the boom company, by virtue of its incorporation, was authorized and empowered to make the improvements, exercise the authority, and acquire and hold the property, as mentioned in said statement; and hence that such transfers and conveyances were complete and effectual. Sec. 1777, B. S., as amended by ch. 318, Laws of 1882, and sec. 1777®, S. & B. Ann. Stats.; ch. 279, Laws of 1880. Among the powers, grants, and [83] privileges thus acquired by such act of incorporation were included “ the right to collect toll or boom charges, and have liens therefor.” Sec. '1777a, S. & B. Ann. Stats.; ch. 279, Laws of 1880. That section also expressly declared that the provisions of sections 12-16, 18, and 24 of ch. 45, P. & L. Laws of 1871, entitled “ An act to incorporate the "Wausau Boom Company,” as amended, should apply to corporations formed thereunder, except as to the Chippewa river and its tributaries. Eor the purposes of this case, therefore, the sections of ch. 45, P. & L. Laws of 1871, mentioned, must be regarded as a part of said sec. 1777a, S. & B. Ann. Stats.; ch. 279, Laws of 1880. Of these sections, the thirteenth provides that “ said company shall demand and receive, and are hereby authorized, by law, to collect, upon all logs and timber received, retained, or stored in their said booms, such sum as may be determined upon and provided by the said board of directors, not exceeding the sum of fifty cents per thousand feet for each and every thousand feet of logs or timber so as aforesaid received or stored in said booms, and which shall be due and payable as soon as the amount thereof is ascertained.” It is in effect conceded that, in pursuance of such authority, the defendant company thus determined upon and fixed the sum or compensation for such services at forty cents per thousand feet, as set forth in the foregoing statement. TJaat amount was exacted and demanded by the boom company for the season of 1888, but the plaintiff refused to pay that amount, on the. ground that it was unreasonably excessive. The court found that the plaintiff was entitled to receive, for the season of 1888, thirty-five cents per thousand feet. The plaintiff insists that even that amount is unreasonably excessive, and hence its appeal from the judgment; while the boom company claims that it is entitled to forty cents per thousand feet, as thus fixed by the company, under the authority conferred by the statute under its charter, and [84] hence the defendants’ appeal from the judgment. The mass of evidence in the case, and much of the findings, are devoted to the question as to what were reasonable charges, and the elements which should serve as a basis for such estimate. On the part of the plaintiff it is claimed that the charges of the boom company should be limited to reasonable compensation for services rendered and interest on •capital invested, including repairs, but nothing for the advantages of the stream in its natural condition, nor for riparian ownership; while the boom company contends that, in estimating such reasonable compensation, the value of its plant and riparian rights, and all its property, operating expenses, and repairs, should be taken into consideration. It seems to us very clear that the value of all property and rights of property necessarily devoted or used, and all labor or service necessarily employed, and all disbursements necessarily made, and all expenses necessarily incurred, by the boom company in receiving, sorting, storing, and delivering logs and timber, should be considered in determining what is a reasonable compensation for such services. Pere Marquette Boom Co. v. Adams, 44 Mich. 403. But it is very obvious that the amount of such reasonable compensation will not necessarily remain the same precise sum during every season and under every variety of circumstances. Much will necessarily depend upon the character of the seasons,— whether the freshets are high or low,— continuing long or short; the quantity and character of logs and timber to be so received, sorted, stored, and delivered; and the quantity and character of logs and timber passing down the river below, and from which they are to be separated, but for which no charges can be made. The difficulty in fixing such standard of compensation from evidence is pointed out by Mr. Justice Coolet in the case cited. He there suggests “ the importance of some legislation for fixing the charges, either by statute directly, or by [85] some board or local authority empowered for the purpose.” “The right to collect toll or boom charges,” given by sec. 1777a, S. & B. Ann. Stats, (ch. 279, Laws of 1880), is manifestly limited to compensation for the use of improvements and services therein mentioned, and has no reference to “any tax, impost or duty” for the mere use of such navigable streams and waters as require no improvement to facilitate such navigation, and which are forbidden by sec. 1, art. IX, Const. This distinction is clearly pointed out in Wisconsin River Imp. Co. v. Manson, 43 Wis. 261-266; J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 80-88, and cases there cited. See also Nelson v. Cheboygan S. W. Nav. Co. 44 Mich. 10. In the language of the present chief justice in the case cited: “ The legislature is, primarily at least, the judge of the necessity of the improvement; and when it delegates the power to a corporation, and the state does not question that the improvement made by the corporation is in conformity with the delegated power, it seems to us that neither the necessity nor usefulness of the improvement, nor the manner in which it is made, can be called in question by private parties.” Wisconsin River Imp. Co. v. Manson, 43 Wis. 265; J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 81. So “ the legislature is, primarily at least, the judge of ” what constitutes a reasonable compensation for the use of such improvements and such services. It may be incompetent for the state, as held in Michigan, “ to give the control of one of its navigable streams to private parties for improvement, with power to charge toll at discretion.” Nelson v. Cheboygan S. W. Nav. Co. 44 Mich. 10. We are not here called upon to determine that question. It is enough here to say that we fully agree with that court in holding, in effect, that it is competent for the state to authorize such parties to charge compensation at rates or within limitations fixed by the legislator^ for the use of such improvements and [86] for such services. Here the boom company was limited by the legislature, in fixing its charges for such compensation, to a sum not exceeding fifty cents per thousand feet. We are constrained to think such amount was within the legislative discretion. The boom company fixed the amount at forty cents per thousand feet. It seems to have been reasonable. By the Court.— The judgment of the circuit court is affirmed as to the plaintiff’s appeal, and wholly reversed upon the appeal of the defendants, and the case is remanded with directions to dismiss the complaint.