Charnley v. Shawano Water Power & River Improvement Co.

BaedeeN, J. The points made by the defendant are (1) that the evidence does not show that the lands described in the petition are overflowed by defendant’s dam; (2) that the evidence does not show that the overflow of said lands is necessary in accomplishing the purposes of its creation; (3) that the defendant has a prescriptive right to overflow said lands. 1. Concerning the contention that the evidence fails to show that the petitioner’s lands are overflowed by backwater from the defendant’s dam, there is considerable evidence in the record to support the trial court’s conclusion. We may say that it is supported by a fair preponderance thereof. To discuss it would serve no useful purpose. We must therefore overrule the defendant’s contention on this point. 2. The petition made a prima facie case for the appointment of commissioners, and it was for the company to show why they should not be appointed. Gill v. M. & L. W. R. Co. 16 Wis. 293. The defendant admits the purpose of its incorporation to be to build, maintain, and operate a dam across Wolf river under the franchise granted by ch. 235, Laws of. 1889, for hydraulic and manufacturing purposes, for the improvement of said river, and the building and maintaining of piers to facilitate the running of logs therein. It accepted the franchise so granted, and erected its dam pursuant to the power thereby conferred. It must be presumed that it built its dam to such a head and of such dimensions as to properly carry out its corporate purposes, in absence of evidence to the contrary. Whatever may be the fact, when the company is called upon to pay compensation for [567] the land it takes by overflow, it cannot be beard to say that it has taken more than is absolutely necessary to carry out its purposes. So long as it maintains its dam under authority rightfully granted by the state, it will not he permitted to say that its dam is built somewhat higher than is absolutely necessary to carry out some of its corporate purposes. See Babock v. C. & N. W. R. Co. 107 Wis. 280. By a fair construction of the act granting the franchise, the person whose lands are overflowed may, as was done in this case, institute proceedings to secure his damages, when the company fails to proceed. When this is done, as said in the case cited, “ it would be incongruous to permit the latter to deny necessity of its taking, or to insist on allegation or proof by the other party, when the whole proceeding rests on its own acts, affirming such necessity in the most unambiguous terms.” The trial court found that the defendant had no prescriptive right to overflow these lands. Such finding is but a mere conclusion of law, and it is difficult to say whether it was based upon a consideration and determination of the fact from the testimony, or on an adoption of the rule of law contended for by the petitioner’s counsel. Their argument is that East and his grantors maintained a dam across a navigable stream without authority from the state; that such dam was a public nuisance, and could never be legitimated by lapse of time, and therefore East had no rights he could assign. It must be conceded that Shawano creek is a navigable stream, within the rule established in this state. Willow River Club v. Wade, 100 Wis. 86, and cases cited. The dam was built on lands owned by the parties who maintained it. It had been built more than forty years prior to the time the defendant purchased East’s interests, in 1892. The only evidence in the case regarding the right to maintain it was given by Mr. East when he said that he “ maintained the dam publicly, claiming a right to do so without permission from any one.” [568] Generally speaking, all hindrances or obstructions to the use of a navigable stream by the public, without authority from the state, are-public nuisances. Barnes v. Racine, 4 Wis. 454; State v. Carpenter, 68 Wis. 165; Knox v. Chaloner, 42 Me. 150. See In re Eldred, 46 Wis. 530. “There is no such thing as a prescriptive right, or any other right, to maintain a public nuisance.” Douglass v. State, 4 Wis. 387, and cases cited. This proposition, however, must -be understood as applying to the rights of the public, and not to those of individuals, and it is the failure to appreciate this distinction that has led the counsel for petitioner into some confusion. A public nuisance cannot be abated by the act or at the suit of a private party unless it is shown that he has suffered some private and special injury. Walker v. Shepardson, 2 Wis. 384; Greene v. Nunnemacher, 36 Wis. 50; State ex rel. Hartung v. Milwaukee, 102 Wis. 509. This is based upon the principle that the rights of the state are to be vindicated only by public officers, but when the nuisance becomes a private one, so as to affect individual rights, the injured party may pursue his remedy.- The fact, however, that a-public nuisance cannot be legitimated as against the public, by the mere lapse of time, does not justify the conclusion argued for, that no prescriptive right can be obtained as against individuals. Important rights, as against individuals, may be acquired and lost by adverse enjoyment for a period of twenty years or more. As against the public, the East dam was wrongful if it obstructed the navigation of the stream. As against the petitioner, it ivas wrongful because it overflowed (if it did overflow) his lands and thus invaded his property interests. The private right of action arises, not from the fact that the dam was unauthorized, but because land was taken by the^ overflow without compensation. The right to damages would have been the same had the dam been authorized by state authority. That one may obtain a prescriptive right of flowage under proper [569] conditions cannot be disputed. It is a right which must have been claimed and maintained in hostility to the right of the person against whom it is set up. Vliet v. Sherwood, 35 Wis. 229. It must have been continuous, exclusive, known to, and acquiesced in by, the owner of the rights affected thereby. 1 Wood, Nuisances, §§ 418, 419, and cases cited. When these conditions concur, and the use has been extended for a period of twenty years or more, the prescriptive right becomes absolute. See Gould, Waters (3d ed,), ch. XI. Such questions are not to be determined by ascertaining how long the dam has been in existence, or by the claim the party makes during the period of prescription. The question is not how high the dam is, but whether the water has been held the requisite period so high as to affect the land flowed as injuriously as it does at the time the landowner seeks damages for such overflow. ' Gould, Waters, § 343. While it has been the policy of this state to hold all streams capable of floating logs and timber to be navigable, yet in streams like this, that are not meandered, the landowner and the public have certain reciprocal rights, which may be enjoyed without the destruction of the other. This is fully set forth in the opinion of this court in the case of A. C. Conn Co. v. Little Suamico L. Mfg. Co. 74 Wis. 652, which holds distinctly that a dam built and maintained by a riparian owner, without legislative permission, in a stream navigable only for the floating of logs and timber, is not unlawful if it does not materially affect or abridge the beneficial use of the stream. See Carlson v. St. Louis River D. & I. Co. (Minn.), 41 L. R. A. 371, note. We fail to find anything in the evidence in the case at bar that brings it outside the line of the discussion .and decision in the case last mentioned, nor are we able to perceive why a prescriptive right of overflow could not have been secured, if the facts exist that would bring the case within the principles of law stated. [570] Upon the question of fact of whether the East dam actually backed water upon the petitioner’s land to the extent claimed, we have been obliged to refer to the record, and read over 350 pages of typewritten matter, in order to reach a conclusion. The failure to print any considerable portion of the testimony has greatly added to our labors. The burden of showing the nature and extent of the claimed overflow was upon the defendant. Gould, "Waters, § 341. A careful review of the evidence convinces us that this obligation has not been met. On the contrary, we believe that a fair preponderance of the testimony shows that such overflow never reached the lands in question at a normal stage of water, as kept back by said dam. An attempt to justify this conclusion by reference to, and a discussion of, the testimony of the numerous witnesses would require much more time and space than the importance of the fact-demands. We shall therefore content ourselves with the conclusion stated. By the Court.— The order appealed from is affirmed.