Union Falls Power Co. v. Marinette Cnty.

• Decision Date: 12 June 1941
• Citation: 298 N.W. 598,238 Wis. 134
• Parties: UNION FALLS POWER CO. v. MARINETTE COUNTY.
• Court: Wisconsin Supreme Court

238 Wis. 134

298 N.W. 598

UNION FALLS POWER CO.

v.MARINETTE COUNTY.

Supreme Court of Wisconsin.

June 12, 1941.

Appeal from an order of the Circuit Court for Marinette County; Arold F. Murphy, Judge.

Affirmed.

Action in equity commenced on July 27, 1940, by Union Falls Power Company, plaintiff, against Marinette County, defendant, to remove a cloud on plaintiff's title to certain flowage easements on certain lands. The defendant county demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. On November 2, 1940, the trial court entered an order overruling the demurrer, from which defendant county appeals.

The material facts will be stated in the opinion.

N. B. Langill, of Marinette, for appellant.

Lehner & Lehner and Adolph P. Lehner, all of Oconto Falls, for respondent.

ROSENBERRY, Chief Justice.

The complaint alleges that the plaintiff, Union Falls Power Company, a Wisconsin corporation, owns, and pursuant to a permit issued to it by the Public Service Commission of Wisconsin, maintains a dam known as “Park Dam” in the Menominee River, located in the westerly limits of the city of Marinette; that the dam has been maintained there many years, having been rebuilt in 1921-1922, and the waters impounded thereby have been maintained at their present level since April 24, 1922; that the pond created by the dam is approximately one mile long, the up-river water level being raised by such impounded waters and the low lands, adjacent to the river, flooded for a distance of approximately seven miles. It is alleged that on November 9, 1903, the Menominee River Boom Company, a Wisconsin corporation, was the owner of and maintained the dam, and likewise was the owner of government lot (3), section 30, township 31 North, range 23 east, Marinette County; that on said date it sold said land to Albert Geartts but retained a flooding privilege and easement, whereby it reserved for itself, its successors and assigns “the right to flood and reflood said land and to have and keep the same covered with water from the river”; that in June, 1916, the Marinette & Menominee Paper Company acquired by purchase from the owner of the fee of government lots (1) and (2), section 29, township 31 north, of range 23 east, Marinette County, the flooding privileges and easements, whereby it acquired “all riparian rights and the perpetual right to overflow or cause to be overflowed any and all parts of the premises that may be overflowed by the operation and maintenance of the Park Dam in the Menominee River as now constructed, or as it may be at any time enlarged or reconstructed”; and that plaintiff acquired by purchase Park Dam and the flooding privileges and easements aforesaid.

The lands described are located approximately one and one-half miles westerly of Park Dam in the town of Porterfield, Marinette County, and consist of eleven and one-half acres which are, and ever since April 24, 1922, have been flooded and a part of the Menominee River.

It is alleged that the flowage easements were of record in the office of the register of deeds in Marinette County. It is further alleged that throughout the years in question, 1932, 1933, and 1934, the assessor of the town of Porterfield assessed the real estate merely by describing it as government lot (3), section 30, and as government lots (1) and (2), section 29, township 31 north, of range 23 east, to the fee owners without referring to plaintiff's flooding easements. The assessor did not separately assess the easements. The flowage easements were included in and assessed as a part of the assessment of Park Dam in the city of Marinette.

It is alleged that the owners of the fee of the lots described did not pay the taxes thereon for the years 1932, 1933, and 1934, and the treasurer of the town of Porterfield returned such taxes to the treasurer of Marinette County as delinquent. The county treasurer advertised for sale and subsequently sold the lands to Marinette County and issued tax certificates to the county. The county clerk, pursuant to resolution of the county board, after due notice, issued tax deeds of the lots described to Marinette County, no reference being made therein to plaintiff's flooding easements.

The plaintiff contends that its flooding easements are not real estate and were not assessable in the town of Porterfield, but that if they were, then such must be assessed separately to plaintiff.

Sec. 70.12, Wisconsin Stats., provides: “All real property not expressly exempt from taxation shall be entered upon the assessment roll in the assessment district where it lies.”

Sec. 70.03, Stats., defines real property as follows: “The terms ‘real property,’ ‘real estate’ and ‘land,’ when used in this title, shall include not only the land itself but all buildings and improvements thereon, and all fixtures and rights and privileges appertaining thereto.”

Sec. 70.17, Stats., provides: “Real property shall be entered in the name of the owner, if known to the assessor, otherwise to the occupant thereof if ascertainable, and otherwise without any name. The person holding the contract or certificate of sale of any real property contracted to be sold by the state, but not conveyed, shall be deemed the owner for such purpose. The undivided real estate of any deceased person may be entered to the heirs of such person without designating them by name. The real estate of an incorporated company shall be entered in the same manner as that of an individual. Improvements on leased lands may be assessed either as real property or personal property.”

Under secs. 70.03 and 70.12, Stats., there is no provision for a separate assessment of flowage easements. Sec. 70.32(1), so far as here material, provides: “Real property shall be valued by the assessor from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale. In determining the value the assessor shall consider, as to each piece, its advantage or disadvantage of location, quality of soil, quantity of standing timber, water privileges, mines, *** and their value. ***”

[1] The rights involved in this case are what are commonly known as flowage rights, that is, the right of one owner to flow the lands of another by the maintenance of a dam. A flowage right is clearly an easement. An easement is a liberty, a privilege or an advantage in lands without profit and distinct from an ownership. Hazelton v. Putnam, 1850, 3 Pin. 107, 54 Am.Dec. 158. See, also, 17 Am.Jur. 923, sec. 2, and cases cited.

[2] Easements are of two classes, easements appurtenant and easements in gross. An appurtenant easement is an incorporeal right which is attached to and belongs with some greater and superior right,-something annexed to another thing more worthy and which passes as incident to it. It is incapable of existence separate and apart from the particular land to which it is annexed. Reise v. Enos, 1890, 76 Wis. 634, 45 N.W. 414, 8 L.R.A. 617. See, also, 17 Am.Jur. 929, sec. 10, and cases cited.

[3][4] A thing or right appertains to something when it belongs to it. An easement therefore appertains to the so-called dominant estate or the estate to which it is annexed or to which it belongs. It is clear therefore under the definition of real property...