Kimberly & Clark Co. v. Hewitt

Lyon, J. Under the judgment of this court on the former appeal it is res adjudicata in this case that, if the defendants have not the lawful right to divert the waters of Fox river (or, rather, one half thereof) from the natural channel of the river to their own land, and to discharge the [337] same into the river below tbe plaintiff’s land, and if they threaten to do so, the plaintiff is entitled to the injunction which it has obtained. It is proved that they threaten such diversion of the water. For either of two reasons which will now be stated we think the defendants have no such right, and hence the judgment should be affirmed. I. The parties are contiguous riparian owners on Fox river, the land of defendants being above that of the plaintiff. The defendants claim the right to divert one half the water running in the river to their land, and to discharge the same into the river below plaintiff’s land, and threaten t© do so. We are aware of no law which confers on them any such right, even though it were held that the plaintiff is not the owner of the surplus water-power created by the dam. The rule is eleipentary that, unless affected by license, grant, prescription, or public right, or the like, every proprietor of land on the bank of a stream of water, whether navigable or not, has the right to the use of the water as it is wont to run, without material alteration or diminution and no riparian owner has the right to use the water of the stream to the prejudice of other riparian owners above or below him, by throwing it back on the former or subtracting it from the latter. Lawson v. Mowry, 52 Wis. 219, and cases cited in the opinion by Mr. Justice Cassoday,; Ang. Water-courses (7th ed.), ch. 4, p. 98, note 2; Burrill, Law Diet. tit. “Ut Currere Solebat.” II. In the case of 70 Wis., above cited, it was held, after much deliberation, that the canal company is the owner of such surplus water-power. The correctness of that ruling is vigorously challenged by the able counsel for defendants. Only one argument urged by them will be here noticed, and that briefly. They maintain that the act of Congress of 1875, ch. 166 (considered in the Kaukauna Case, and which was repealed in 1888), did not, while in force, supply any adequate means for obtaining compensation for in [338] juries to property caused by the improvement. We think otherwise. We understand that ch. 166 gave a right of action in the state courts against the United States to ascertain the amount' of such compensation, and we cannot doubt that it pledges the faith of the government to pay all damages so ascertained. It cannot be presumed that the government will violate its obligations in that respect. So we are of the opinion that the act of 1875 furnished an adequate mode for obtaining compensation for such injuries. We are satisfied with our conclusion in the Kauhauna Case, and must -therefore adhere to it. This case is not distinguishable therefrom in principle. Having held that the canal company owns the surplus water-power created by the improvement, we must hold that it owned the surplus water-power here in question, and that it has effectually conveyed it to plaintiff, as it lawfully might. Hence, for this reason also, the defendants had no lawful authority to make the threatened diversion of the water of the river. By the Court.—Judgment affirmed.