Heerman v. Beef Slough Manufacturing, Booming, Log-Driving & Transportation Co.

• Decision Date: 01 January 1880
• Citation: 1 F. 145
• Parties: HEERMAN v. BEEF SLOUGH MANUFACTURING, ETC., CO. and others.
• Court: U.S. District Court — Western District of Wisconsin

1 F. 145

HEERMAN v. BEEF SLOUGH MANUFACTURING, ETC., CO. and others.

United States Circuit Court, W.D. Wisconsin.

1880

BUNN J.

This action is brought by the plaintiff, a resident of Minnesota and the proprietor of certain steamboats engaged in the navigation of the Chippewa river in Wisconsin, against the defendants, two corporations existing under the laws of Wisconsin, to restrain and prohibit them from running loose logs in the Chippewa river, and to compel them to remove therefrom certain piers, booms and dams, placed therein by the defendants, to aid and facilitate the running, driving and storing of logs, on the ground that such piers, booms and dams, and the running and driving of logs in said river constitute an obstruction to navigation, and are therefore a nuisance which ought to be abated and perpetually enjoined by the decree of this court.

The case was heard upon a general demurrer filed by the defendants to the plaintiff's bill of complaint.

The allegations of the bill are quite voluminous, a great many facts being alleged which go to show that the improvements placed in the Chippewa river by the defendants, and the running of loose logs therein by them, materially interfere with the running of rafts of lumber, the running of ferry boats across the stream which carry the United States mail and also with improvements of the river which are being made in contemplation of being made by the government of the United States, as well as with agricultural and manufacturing interests of the people along the river. But as the plaintiff does not connect himself in any way with any of these several interests, or show that the alleged obstruction to these interests especially affect him, it would seem that these allegations, which take up so much room in the bill, are surplusage and quite immaterial to the plaintiff's case.

The allegations which are essential to a proper understanding of the case are in substance as follows:

That the Chippewa river, for 100 miles above its mouth, is a navigable highway and water of the United States, leading into the Mississippi river, and an avenue of commerce between the state of Wisconsin and other states of the Union, for conveying, by ascending navigation, the products of other states and countries, with boats and barges, and for conveying the products of this state, by descending navigation, with boats, rafts, etc., to markets outside of the state; and that the said river has been so used for the past 30 years, and has been recognized by the Congress of the United States as a public highway and navigable stream.

That appropriations were made by Congress in 1874 and 1875, for the purpose of making examinations and survey of the stream. That such surveys were made and approved by the United States, and public improvements on the river have been begun.

That the plaintiff for twelve years has been engaged in steamboating on said river between its mouth and the city of Eau Claire, at the head of navigation.

That the defendant, the Beef Slough Manufacturing, Booming, Log Driving and Transportation Company, is a joint stock corporation, organized in the year 1867, under chapter 73 of the Revised Statutes of Wisconsin, for the declared purpose of driving and booming logs, manufacturing lumber, doors, etc., on and at the head of Beef Slough, on the Chippewa river.

That before 1870 the said defendant company constructed in said river, and on Beef Slough, which is one of the channels of the river, without any lawful authority, a number of piers of wood and stone of great size and strength, and connected the same by booms placed in the river, in such a manner as to cause a considerable obstruction to the navigation of the river, and so as to divert, to some extent, the waters from the main channel into said Beef Slough; that afterwards, in the year 1870, the legislature of Wisconsin passed an act entitled 'An act to define certain rights and duties of the Beef Slough Manufacturing, Booming, Log Driving and Transportation Company,' known as chapter 299 of the Private and Local Laws of 1870, by which the state attempted to authorize the said company to maintain the said piers and booms constructed for the purpose of turning loose logs floating in said river into Beef Slough, and to construct and maintain in Beef Slough, and upon the land owned and leased by said company, such piers, dams and booms as might be necessary to confine the water of said slough to its proper channel, and to secure the logs running into the same: provided, that no booms, dams or piers should be constructed which should prevent the free and unobstructed passage by boats through Beef Slough, or from Beef Slough into Perrin Slough, so called; and provided further, if within 18 months from the passage of said act good and sufficient provisions were not made for the free and unobstructed passage aforesaid, then the privileges granted by said act should cease; and the said company were required to pave and stone the bed of said Beef Slough at or near its connection with said Chippewa river, for the purpose of maintaining the level of said bed and preventing an excess of the volume of water flowing over the same. And whereby it was provided that said company should have the exclusive privilege of driving and booming all logs, timbers, railroad ties and fence posts which might run into Beef Slough, until the same should have been delivered to the owners thereof below the main rafting boom of said company, which was situated near the mouth of said Beef Slough; and whereby it was provided that said company should have the right to charge for driving from their booms, at or near the head of said slough in the Chippewa river, and for booming and delivering, as aforesaid, such logs, timber, railroad ties and fence post, at certain specified rates.

That the said Beef Slough is in fact a navigable branch of said Chippewa river, and departs from the main channel about 18 miles above the outlet of said slough into the Mississippi river, flowing into the latter river about nine miles below the mouth of the main Chippewa, and is, in its greater portion, navigable for boats, barges and rafts, and a considerable portion thereof was so advantageously used before the unlawful obstruction thereof by said defendant; that, at all times prior to the obstruction of the same by said defendant, the main and natural channel of said river flowed to the south of said Beef Island, and the same was the principal navigable channel of said river prior thereto, and such channel was known and called by the name of the river.

That upon the north side of said Beef Island there is a channel known as Horse Slough, which is of greater length and more circuitous than the river aforesaid, and which, prior to said obstructions being placed in the main river, while possible to be navigated in seasons of high water, was not commonly employed in navigation by either steamboats or rafts.

That the defendants, with the intent and design to obstruct the navigation of said slough and river, and to secure the gains and profits of tolls, have, without any authority of law, erected, since 1870, large wood and stone piers in addition to those already in said slough, and in the main river at and near the head of said slough, and also above said Beef Slough at Round Hill, and near the head of Horse Slough in said river, and have constructed piers and booms in connection therewith in such manner as to have entirely blocked up and obstructed the original and natural navigable channel of said river, and also Beef Slough, to such an extent as to have entirely prevented the passage of steamboats, barges and rafts therein, and have, by such works, since the year 1874, turned the water of said river not deflected into Beef Slough, for the purposes of their private business, as thereinbefore stated, into the said Horse Slough channel, so that no other channel remains open to ascending or descending navigation, and thereby they have greatly obstructed and impeded the free and natural navigation of said river for boats, barges, rafts and other water craft, and have made such navigation much more circuitous, difficult and expensive, and have rendered it necessary to construct additional and special jetties or dams in order to improve the navigation of said Horse Slough, and have deflected a part of the natural flow of water from the Chippewa river into said Beef Slough, and thereby injuriously diminished the natural volume and force of the current thereof, so that the same is much less capable of supporting the navigable boats and rafts therein, and less able to remove by natural action the sand bars formed at the mouth of the river and along its course; and by their said piers and booms have turned all logs, timber, railroad ties and fence posts floating in said river into said Beef Slough, and so provided and adapted the same that all such logs, timber, railroad ties and fence posts must necessarily be turned into said Beef Slough, and thereby have taken possession thereof, and in the future, unless restrained by the court, will continue so to take possession of and force the same into said Beef Slough, and there assume sole control of further driving the same until they shall reach the outlet into the Mississippi river. And have erected and constructed in said Beef Slough other piers, booms and dams in such manner that they have taken exclusive possession thereof, and entirely prevented any navigation or use thereof by the public, including the plaintiff, by boats, barges, steamboats or otherwise, and give out and threaten that they will henceforward continue so to do.

That in the year 1869 or 1870 the defendant, the Beef Slough Company without any authority of...