Green Bay & Mississippi Canal Co. v. Kaukauna Water Power Co.

Newmau, J. It is settled by the decisions in Green Bay & M. Canal Co. v. Kaukauna W. P. Co. 70 Wis. 635, and Kaukauna W. P. Co. v. G. B. & M. Canal Co. 142 U. S. 254, that the respondent in these appeals, the Green Bay & Mississippi Oanal Company, is the legal owner of all the water power which has been created by the dam at the head of the rapids at Kaukauna beyond what is required for the purpose of navigation; and that it has all the right and ' title in that water power which the state acquired in it .under sec. 16 of the act of 1848 (Laws of 1848, p. 62); and that such title amounts to entire and absolute ownership. — 398 — But the court in those cases did not “ determine the relative rights of the respondent and the other riparian owners below the dam in respect to the use of the water which would: run over the dam if not taken from the pond into the canal,” nor “ whether there is any restriction upon the manner or place in which the water shall be returned to the river below the dam.” The questions so left undecided in that case are the very questions presented by the record for decision here. ' The court is now called upon to determine and define the relative rights of the respondent and the other riparian owners below the dam in respect to the use of the water which would run over the dam if not taken from the pond, through the canal, to furnish water power lower down the stream, and whether there is any restriction in the manner or place in which the water shall he returned to the river below the dam. There is no question of the right of the government to-divert through the canal so much of the water of the stream as is required for the purpose of navigation. This amounts to about one per cent, of the water of the stream. The controversy concerns only the use of the surplus water after the purposes of navigation have beenu served. The ordinary rule governing such questions would, no doubt, require the person owning or controlling the Kaukauna dam and the water power created by it to so use his right as that the water should be returned to the stream in such a manner and at such a place as not to deprive a lower riparian owner of its use as it has been accustomed to flow past his banks; for as said by Lyon, J., in Kimberly & Clark Co. v. Hewitt, 79 Wis. 334: “ The rule is elementary 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 use the water as it is. wont to run, without material alteration or diminution; and — 399 — 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 upon the former or subtracting it from the latter.” This must be the extent and limit of the respondent’s right, unless the state, whose title it has acquired, had greater rights. The statute which vested the title to this water power in the state is in these words: “ Whenever a water power shall be created by reason of any dam erected or other improvement made, . . . such water power shall belong to the-state.” See sec. 16 of the act of 1848. It is by no means clear that this statute invested the state with a title more absolute, or with rights more extensive or exclusive, in the-water of the stream, than would belong to the owner of both banks of the stream who should have erected the dam for the purpose of creating water power. Such a private-owner would own the water power created by the dam, absolutely and entirely, subject only to the public right to-divert the water required for navigation. It is not easy of apprehension how the state could acquire a title more ample. The state could acquire title to such water power only as was created by improvements in the stream which it might lawfully make. It could not lawfully make a dam or any other improvement in the stream for the purpose of creating a water power, if such improvement should work injury to a lower riparian owner, any more than could a private-person ; for the riparian rights of the lower owners of land upon the bank of the stream are property such as cannot-be taken by the state for even a public use,— except in aid of navigation,— without compensation to the owner, and cannot be taken at all or impaired for a private use. Chapman v. O. & M. R. R. Co. 33 Wis. 629; Delaplaine v. C. & N. W. R. Co. 42 Wis. 214; Janesville v. Carpenter, 77 Wis. 288; Attorney General v. Eau Claire, 37 Wis. 400, 436; — 400 — Cole v. La Grange, 113 U. S. 1; Kaukauna W. P. Co. v. G. B. & M. Canal Co. 142 U. S. 254, 272, 273. The right of the state to improve the stream as a highway and for the purpose of aiding its navigation is superior to the rights of riparian owners. It may take and divert, absolutely and without compensation, so much of the water of the stream as may be required to improve its navigation. But that is the limit of its right. But, because it is not practically feasible to measure and determine with exactness the amount of water required for this public purpose, •some discretion is allowed; and it may well happen that an excess of water will be produced by a dam. As in this case, it may be necessary to stop the entire flow of the stream, by a dam, in order to divert some small part of the water for the uses of navigation. In that case the surplus need not be permitted to run to waste. The power so created by the •surplus water may be leased or sold. This is the water power created by the dam, which the state owned. In Kaukauna W. P. Co. v. Green Bay & M. Canal Co. 142 U. S., on page 273, it is said: “It is probably true that it is beyond the competency of the state to appropriate to itself the property of individuals for the sole purpose of creating a water power to be leased for manufacturing purposes.” And on page 275: “The true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtaining a water power to lease to private individuals, or where, in building a dam for a public improvement, a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement, and a reasonable provision for securing .an adequate supply of water at all times for such improvement. ... So long as the dam was erected for the bona fide purpose of furnishing an adequate supply of water for the canal, and was not a colorable device for creating a water power, the agents of the state are entitled to great — 401 — latitude of discretion in regard to the height of the dam and the head of water to be created.” But it is not the dam itself of which complaint is made. It is claimed that the dam is unlawfully used as a colorable device for the purpose of creating a water power at a point at some distance removed from the dam. It is evident that the water power which was created incidentally by the erection of the dam is due to the gravity of the water as it falls from the crest to the foot of the dam. What further power it may have in its present distribution is not incidental to the erection of the dam, but such as has been added to it from deliberate design. The first reach of the canal, to the first lock, did not create a water power. No power existed there until the bank of the canal was cut for the very purpose of creating it. Until then all the water of the stream not required for navigation passed over the dam. There it created a power which was, in a true sense, incidental to the erection of the dam. The"power created by the cutting of the canal was not incidental to the erection of the dam, or to the construction and use of the canal for navigation, but was ex •mdustria, for the purpose of creating a water power. It was created for its own sake, and not incidentally. So far from being an incident to the lawful public improvement, it is in derogation of the public improvement. It impedes rather than aids the navigation of the stream. In some sense, it may be said that the first reach of the canal, down to the first lock, is a part of the dam. Since the use of the guard lock has been abandoned, it upholds the pond. In that sense it is a part of the dam. But, as bearing upon the question as to what rights are incidental to the building of the dam proper, it is a perversion of terms and ideas. It is merely color, to cover the subtraction of the riparian right to this private use of the water of the stream. There seems to be no sufficient ground for holding;that the respondent has acquired additional right by prescription. — 402 — Twenty years before the commencement of the action it bad diverted and was diverting only a small part of the water of the stream. The amount diverted was inconsiderable. It was no such “ strong act of exclusive possession ” as that it was, per se, notice of an adverse claim of right. The state owned no such right to divert the water from the lower riparian owners as is claimed by the respondent. The respondent has acquired no such right. The ordinary rule which governs the relative rights of riparian owners is the rule which governs this case. The lower owners are entitled to have the water — except what is required for navigation — returned to its accustomed channels in such manner and place as that it shall flow past their lands as it was accustomed to flow. By the Court.— The judgment of the superior court of Milwaukee county is reversed upon each of the three appeals, and the cause is remanded with directions to enter judgment in accordance with this opinion. The respondent moved for a rehearing. The following opinion was filed June 20, 1895: Newmast, J. This action was originally commenced by the Patten Paper Company (Limited), one of the appellants, to obtain an adjudibation of the relative proportions of the flow of the river below the dam in the several channels, and to enjoin the Kauhauna Water Power Company from diverting any water to the south channel which of right should flow in the middle channel. An adjudication of these relative rights is included in the judgment of the trial court, and all parties are by it enjoined from interfering with the flow of the water in the several channels in the proportions adjudged to be the due of each channel. There is no appeal from this part of the judgment; so no consideration of it by this court is due or proper. But in the course of the litiga — 403 — tion a new issue was introduced by the Green Bay & Mississippi Canal Company. It claimed that, by its purchase from the state of the canal and improvements and the water powers which were created by the improvements, it became the absolute owner of the water of the stream, with the right, as against the owners of water powers on the rapids below the Kaukauna dam, to divert -all the water of the stream, and to use it wherever it best suited its interests, and to return it to the stream wherever it chose, regardless of its effect upon the water powers and rights of such lower owners. This claim the trial court sustained to its full extent. It gave judgment sustaining it, and enjoined all the other parties to the action from interfering with the complete exercise of the rights so claimed. From this part of the judgment these appeals were taken. The right of this contention of the Green Bay & Mississippi Canal Company was the only question presented by these appeals. This court held that the Green Bay & Mississippi Canal Company owned all the water power which was created by the construction and operation of the government dam at Kaukauna; that it had the right to use all the water of the stream, not used for the purposes of navigation, for the purposes of power, wherever it could or chose, so far as it could do so without impairing the just rights of other owners of water powers upon the stream; that it was due to other owners of water powers below the dam that the water, after being used by it, should be returned to the stream at such place and in such manner as that it shall flow past the banks of such lower owners in its accustomed channels and as it was accustomed aforetime to flow. The limit to its right is at the point where it infringes upon the rights of others. It concedes to it all the rights which the state had or could acquire as against such lower owners. The place where it may use the water for power is restricted only by its duty to refrain from injuring others. The court is satisfied of — 404 — the correctness and justice of its judgment. It is not deemed to be inconsistent with anything previously said pr decided by this court, or with the decision of any other court to which attention has been called. It is believed to be grounded impregnably upon that widely applied mandate of the law, “ sic- uteo-e tuo ut aUenum non Icedas.” But it is urged upon this motion that the language of the opinion is only general and will not enable the trial court to determine and direct in what specific place, or in what pi-ecise manner, the water must be returned to the stream; nor how and where the respondent may lawfully use that relative proportion of the flow of the stream which is appurtenant to its bank, below the dam. Probably this is a just estimation of the opinion. It has assumed to determine only the general principle by which the relative rights of the parties are to be determined, and has pronounced that general principle in general terms only. It could well do no more. The court had no concrete question before it. Uo such issue was made, nor such judgment asked by the respondent’s pleading; lior was any such issue adjudgéd by the trial court. Uor does the record furnish data by which such questions can be determined by this court. These are practical questions which cannot be answered by the aid only of mere theory. Probably it cannot be satisfactorily predicted, in advance of experiment, just where and how the water must be returned to the stream so as to work no injury to lower owners. Certainly, it cannot be determined by a court without evidence of some kind. The court has performed its full function in this case when it has established the general rule which governs it. The judgment of the superior court of Milwaukee couuty is reversed, upon each of the three appeals, as to those parts of the judgment which were appealed from, and the cause is remanded with direction to enter judgment in accordance with the opinion. By the Court.— The motion for a rehearing is denied.