Town of Lawrence v. American Writing Paper Co.

Tbe following opinion was filed November 15, 1910: ViNjn, J. 1. It appears from tbe foregoing statement of facts that for more than forty years tbe town has maintained a highway by user along tbe bank of the’Fox river; that at least since 1849 a dam has been maintained at tbe place in-question of substantially tbe.same height as tbe present one;. [561] and that owing to the fluctuations in the flow of the river the water was higher more of the time annually when there were no flush-boards on it than during the time when flush-boards were used. It is apparent, therefore, that the town acquired its prescriptive right to the highway by user concurrently with, if not subject to, the right to use the river lawfully for power purposes, and that it has until very recently so continued to regard and hold such right. Both parties concede that the present dam is a lawful structure, and no claim is made but that the dams previously built were also lawful structures. 'We have, therefore, this situation: After the lapse of more than forty years, during which time the town has recognized and acquiesced in the right of the defendant and its predecessors to use the water as it has been used, it now for the first time comes into a court of equity and asks that defendant be restrained from maintaining, by the use of flush-boards, conditions in no material respect different from those that have existed during all of that time. About twenty-two years ago, long before the defendant owned its mill, the town moved the highway back because of the erosion theretofore caused by the water, and again four years ago it moved it still further back owing to the same cause. These acts show conclusively that the town recognized the right of the owners of the power to maintain the water at its then level and that it acquiesced therein. The defendant, when it bought its power, had a right to rely on the fact that conditions so long maintained without protest would be permitted to remain substantially unchanged in future. During all of this time the town stood idly by and permitted large sums of money to be expended by the defendant on the strength of its belief that it could use its power and the waters of the river as they had been used in the past. Should plaintiff at this late day, because during a period of six years it has suffered damages to the extent of a few hundred dollars, be adjudged entitled to restrain the defendant from the use of [562] flush-boards and deprive it of power which in weekly, if not daily, value no doubt exceeds the yearly damage? It seems that under such circumstances the court ought not to grant the relief. To do so would not be doing equity but a gross injustice. If plaintiff ever had any rights, it has slept upon them too'long to entitle it to come into a court of equity and obtain the desired relief. Coon v. Seymour, 71 Wis. 340, 31 N. W. 243. 2. Has the defendant by the use of its flush-boards so manipulated the water as to incur any liability to plaintiff ? The flush-boards have been used on the dam only when the water was at a low stage, caused either by natural conditions or by the holding back of the water by upper mill owners. At no time has the use of flush-boards caused the river to rise above ordinary high-water mark, that is, the point up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of vegetation, or other easily recognized characteristic. The water has always been controlled within the natural limits of the stream and within the limits of its ordinary high and low water marks, and such control has been rendered necessary by the lawful and proper use of the water by upper proprietors of mills or by natural causes. Such use, within such limits and under such circumstances, is a lawful use. The owner of water power is entitled the whole year round to the use of the stream and the banks below ordinary high-water mark as nature has created them, subject to a reasonable use thereof by other owners of power and of riparian rights. And he may in a season of low water, by artificial means, restore the stream to a condition of a higher stage of water than then exists, provided he does not raise it above ordinary high-water mark and provided such restoration is reasonably necessary to the full enjoyment of his water rights and it' creates no essentially different conditions than would exist had there been a natural rise of the stream to the same extent and for the same [563] length of time. A mere riparian right is subject to such reasonable use of the stream, and if any damage results therefrom the owner of the right is without a remedy. 2 Earn-ham, Waters, § 4-76; Gould, Waters, § 218; Timm v. Bear, 29 Wis. 254; Coldwell v. Sanderson, 69 Wis. 52, 28 N. W. 232, 33 N. W. 591. The defendant made no new or unusual use of the stream, nor did it create conditions essentially different from those that would have resulted from the upper proprietors holding the water hack at stated intervals without any ponding thereof on its part. The intermittent breaking and freezing of the ice from which the greater damage resulted was caused as much by the action of the upper mill owners as it was by that of the defendant; and it is a verity in the case that some damage would have been done to the highway if neither the upper proprietors nor the defendant had manipulated or controlled the water in any respect. The location of the highway with reference to the river was such that the damage sustained might be said to be a natural and necessary incident thereto. It was the combined action of the upper proprietors in periodically shutting off the flow of water, of the defendant in then ponding it, and of nature in freezing and expanding it under such changing conditions, together with the natural stage of high water in the spring when the ice was carried :away, that caused the damage. Under such circumstances the defendant, whose use of the water was lawful, cannot be held liable. ¡ By the Gourt. — Judgment reversed, and cause remanded with directions to dissolve the permanent injunction and render judgment for defendant. A'motion for a rehearing was denied January 31, 1911.'