Apfelbacher v. State

Decision Date16 April 1915
Citation152 N.W. 144,160 Wis. 565
PartiesAPFELBACHER v. STATE ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Kerwin and Barnes, JJ., dissenting.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by George Apfelbacher against the State of Wisconsin and others. From a judgment sustaining the demurrer by the State and its officers to the complaint, and dismissing the complaint as to them, the plaintiff appeals. Affirmed.

Action for damages for the alleged negligent operation of a dam. The material allegations of the amended complaint are:

“That at all the times hereinafter mentioned he (plaintiff) was, and now is, the owner in fee of certain real estate, dam, mill, and millrace, situate on the Bark river, in the town of Summit, Waukesha county, Wis., and more particularly described as follows, to wit [here follows description of lands].

That the Bark river is a river situated in the county of Waukesha, state of Wisconsin, and that portion upon which the mill property of this plaintiff is situated, as aforesaid, runs in a general southwesterly direction from the lower or western end of Nagawicka Lake to the lower or southern end of Upper Nemahbin Lake, and that the property of this plaintiff is situated upon said river at a distance of about one mile from the opening of Nagawicka Lake; that for upwards of 70 years prior to the commencement of this action, this plaintiff and his predecessors in title had maintained said mill and dam, and that during all of said period of time said plaintiff and his predecessors in title have claimed adversely to all the world, and have in fact enjoyed and maintained a head of water at said dam of from 9 to 11 feet in height, and that such use has been maintained openly, peacefully, and adversely at all times.

Plaintiff further alleges that the above-named defendant Ephriam Humphrey is the owner of a certain mill property upon that portion of the Bark river northeasterly and above the mill property of this plaintiff and immediately west of the opening of said Nagawicka Lake; that the exact time when said mill was constructed and dam built by the predecessors in title of said defendant Humphrey is not known to this plaintiff, but said mill was built and dam constructed long subsequent to the construction of the mill property of this plaintiff, and that said mill was built and said dam constructed more than 50 years before the commencement of this action, and that during said period of 50 years the two mills have been operated and maintained upon said Bark river and have jointly used the water therefrom for their mill purposes.

Plaintiff further alleges that the above-named defendants Francis E. McGovern, ex officio Governor of the state of Wisconsin, Jabe Alford, E. A. Birge, George W. Peck, A. L. Osborne, James O. Davidson, John C. Burns, and B. C. Walters constitute the fish commission of the state of Wisconsin, and as such have charge, supervision, and direction of the several fish hatcheries maintained by the state of Wisconsin, pursuant to the laws of said state; that some time in the year 1906 the state of Wisconsin acquired certain real estate situate upon said Bark river, midway between the two mills hereinbefore described, and that for the purpose of conducting a fish hatchery thereon, a series of ponds of considerable extent have been excavated and connected, and that said ponds require a large amount of water to be suitably operated in connection with said hatcheries; that as this plaintiff is informed and verily believes and charges the fact to be, at the time of the installation of said fish hatchery, the above-named defendant the state of Wisconsin, through the above-named fish commissioners, defendants herein, or their predecessors in office, entered into a certain contract or agreement with said defendant Humphrey, wherein and whereby it was agreed that if at any time the water in said Nagawicka Lake should reach so low a stage as to endanger what, in the opinion of said fish commission, would constitute a sufficient supply of water for said hatchery, then and in that case the said defendant Humphrey promised and agreed that he would shut down his mill until such time as the water should again reach such a stage that said fish commission should determine that the running thereof might be continued. And this plaintiff further alleges that in and by said contract said fish commissioners were granted practical supervision and control over the water at said Humphrey dam, and that ever since the making of said contract said fish commissioners have exercised the rights therein granted, and controlled the head of said water at all times; that on the night of May 27, 1912, the said defendants fish commissioners, through their agents and servants, negligently and carelessly, and without having a proper regard for the rights of this plaintiff, removed the flashboards in the runway at the said Humphrey dam and kept them out for the entire night, thereby turning loose great volumes of water in and upon the millpond and dam of this plaintiff, such water being of sufficient volume to destroy the flume used by this plaintiff in connection with his said mill, and in fact did destroy the same, and, further, to destroy and carry away a portion of this plaintiff's milldam, and did in fact destroy and carry away the same; that at the time of the removal of said flashboards there was a great head of water at the said Humphrey dam proceeding from Nagawicka Lake, and a quantity greatly in excess of the usual amount at said place, caused by heavy recent rains, and the defendants, and each of them, and their servants, agents, and employés, knew this fact, and notwithstanding the same, they did remove said flashboards and turn loose the waters at said dam negligently and carelessly and in such a manner as to absolutely destroy the flume and milldam of this plaintiff as aforesaid.

This plaintiff further alleges that the contract entered into by said Humphrey with the state of Wisconsin and its fish commissioners is in derogation of the vested rights of this plaintiff, and that said Humphrey had no right to authorize or permit the said state of Wisconsin, or its fish commissioners, to exercise, or to attempt to exercise, any control over the waters at said Humphrey dam, or to authorize the said state of Wisconsin, or its fish commissioners, to enter upon his said premises and remove said flashboards to the damage of this plaintiff as aforesaid; that this plaintiff is dependent for his maintenance upon his income derived from the operation of his said mill, and that by reason of the premises he is unable to operate the same in any way or manner whatsoever; that his business has been seriously injured and practically destroyed; that it will cost him at least $3,500 to replace the flume and restore his mill to the condition in which it was before said 27th day of May, 1912, and that he has been irretrievably damaged by reason thereof; that this plaintiff is unable to state how long it will be before he can restore his mill to operation, but alleges, upon information and belief, that it will take at least two months so to do, and that he had already lost, and that during said period of time he will continue to lose large numbers of his customers to an extent that will render his mill property practically valueless; that this plaintiff has been damaged to an amount exceeding the sum of $20,000. * * * Plaintiff further alleges that this suit has been authorized by the defendant the state of Wisconsin by general law known as chapter 624 of the Laws of 1913, which said law was duly enacted by the Legislature of the state of Wisconsin at the 1913 session thereof, approved by the Governor, officially published in the Madison State Journal, and now is the law of this state.”

The defendants, the state of Wisconsin and the commissioners of fisheries, answered, and among other defenses denied negligence on their part, and alleged that plaintiff's damages, if any, were caused by his own negligence. At the opening of the trial they interposed a demurrer ore tenus on the ground that the complaint failed to state facts sufficient to constitute a cause of action against them. The demurrer was sustained, and a judgment dismissing the complaint as to the demurring defendants was entered. From such judgment the plaintiff appealed.

Bloodgood, Kemper & Bloodgood, of Milwaukee (Albert K. Stebbins, of Milwaukee, of counsel), for appellant.

Walter C. Owen, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for respondents.

VINJE, J. (after stating the facts as above).

[1] Plaintiff's theory upon which the complaint is based is thus tersely stated by his counsel:

“When a sovereign state departs from its ordinary political and police duties by entering upon the exercise of functions at the most only of a quasi public character and succeeds to private rights through grants, under which a citizen suffers damage resulting from the wrongful acts of the agents of the state which, if committed by the state's predecessor in title would have caused liability, such act causes like liability upon the state, subject only to the inability of the person damnified to commence suit, but, upon that permission being granted, the liability of the state is to be governed by the same rules which would be applicable to private parties.”

This statement is followed by calling attention to the importance of the question raised, in view of the modern tendency of many states to depart from the...

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36 cases
  • Harris v. County of Racine
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 4 Mayo 1981
    ...classes, since "immunity from suit is a privilege which a sovereign may waive or refuse to waive at its pleasure." Apfelbacher v. State, 160 Wis. 565, 577, 152 N.W. 144 (1915); Forseth v. Sweet, supra, 38 Wis.2d at 689, 158 N.W.2d 370; Cords v. State, supra, 62 Wis.2d at 51-53, 214 N.W.2d 4......
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    ...I, Sec. 9 because “[t]here is no ‘right’ of a citizen to hold his sovereign substantively liable for a tort”); Apfelbacher v. State, 160 Wis. 565, 577, 152 N.W. 144 (1915) (“The immunity from suit is a privilege which a sovereign may waive or refuse to waive at its pleasure. No constitution......
  • Holytz v. City of Milwaukee
    • United States
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    ...between governmental immunity from torts and the sovereign immunity of the state from suit was recognized in Apfelbacher v. State (1915), 160 Wis. 565, 152 N.W. 144. The California Constitution has a similar provision to that of Wisconsin so far as the right to sue the state. In abrogating ......
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    ...such policy may originally have sprung in a large measure from the conception that the sovereign can do no wrong." Apfelbacher v. State, 160 Wis. 565, 575, 152 N.W. 144 (1915). ¶ 42 Over the years, the intellectual underpinnings of the court-created doctrine of substantive governmental immu......
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