Black River Improvement Co. v. La Crosse Booming & Transp. Co.

• Decision Date: 07 February 1882
• Citation: 11 N.W. 443,54 Wis. 659
• Parties: BLACK RIVER IMPROVEMENT CO. v. LA CROSSE BOOMING & TRANSPORTATION CO. AND OTHERS.
• Court: Wisconsin Supreme Court

54 Wis. 659

11 N.W. 443

BLACK RIVER IMPROVEMENT CO.

v.LA CROSSE BOOMING & TRANSPORTATION CO. AND OTHERS.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, La Crosse county.Burton & Woodward, S. U. Pinney, and S. C. Gregory, for appellant.

M. P. Wing, G. C. Prentiss, and G. W. Cate, for respondents.

TAYLOR, J.

The appellant and the principal respondent in this action are corporations; the first organized under a special law of the state, and the second under a general law,--chapter 144, Laws 1872. The action is brought by the appellant in equity for the purpose of restraining the respondent company, and its officers and agents, from interfering with the property and franchises of the appellant company. The appellant was incorporated and derives all its powers and franchises from chapter 84, P. & L. Laws, 1864, amended by chapter 447, P. & L. Laws, 1866. The powers conferred upon the appellant company are declared in section 1 of said chapter 84, Laws 1864. After giving the names of certain persons who were to be corporators, the act declares “that they shall be and are hereby created, in accordance with the provisions of this act, a body corporate and politic, by the name and style of the Black River Improvement Company, and by that name shall have succession and continue for twenty-five years, and shall have power and authority, and they are hereby authorized and empowered, to improve the navigation of the Black river, and lakes near the mouth of the same, in the counties of Clark, Jackson, Trempealeau, and La Crosse, in the state of Wisconsin, by removing obstructions, breaking jams, deepening, widening, and straightening the channel, closing up chutes and side-cuts leading from said river into the Mississippi river and into the bottom lands of said river, and into sloughs; to erect dams and piers, to construct levees and dykes, and repair and straighten the banks of said Black river, and to contract and be contracted with, sue and be sued, implead and be impleaded, in all courts of law and equity whatever, and make and have a common seal,” etc. The amendment made to this charter by chapter 447. Laws 1866, simply added the words “building dams” after the word “obstructions” in said section.

The ninth section of the act gave the corporation the power to charge certain tolls upon logs, timber, and lumber run on said river, after expending in such improvements certain sums of money mentioned therein. The defendant corporation was organized under chapter 144, Laws 172, and in their articles of association the powers of the corporation were stated as follows: “For the purpose of manufacturing, by steam or water-power, within the county of La Crosse or elsewhere, lumber, lath, pickets, timber, and all other products of wood, material for market, and to purchase and sell timber, lumber, logs, and all other wooden materials and products, and all such merchandise as may be necessary in such business; and also of improving Black river and sloughs for navigation, from John Lytle's mill on said river to its mouth and entrance into the Mississippi river by way of the main river and Black Snake river and French slough, for the purpose of booming, driving, rafting, holding, and manufacturing logs, timber, and other wooden materials for the use of the company or of other persons, and to purchase and sell all such materials and real estate as said company may deem expedient; also of transporting property of all kinds on the Mississippi river and tributaries by vessels and water-craft, and to purchase and charter all necessary vessels for towing purposes, as common carriers or otherwise, upon the Mississippi river and its tributaries, and to charge a reasonable compensation therefor for all booming, rafting, manufacturing, transporting, and towing or other services for other persons, and with power to construct such improvements in said streams by way of improving the navigation of the same, and of such booms, piers, piles, assorting works, rafting works, holding grounds for materials, and purchasing and leasing such real estate as said company may need.”

The principal controversy in this case grows out of the attempt of the defendant company to keep open what in their articles of association is called the Black Snake river, and to improve the same for purposes of navigation. The evidence shows that what is called the Black Snake river is, in the original plats of the United States survey, called the West Branch, and is in fact a part of the waters of the Black river. The water constituting the Black Snake leaves the channel of the Black river at a point below Lytle's mills, and runs to the west of the main channel of the Black river through low grounds for about two miles. and then empties into what is called Rice lake. The main channel bears to the east and empties into the same lake. From that lake to the Mississippi, in an ordinary stage of water, all the waters of the Black river flow in one stream to the Mississippi. The West Branch or Black Snake was returned as a meandered stream on the government surveys from the point where it leaves the Black river to Rice lake, and in its original state it was useful for the purpose of running logs, as deep or deeper than the main channel, but not as wide and more tortuous in its course. The evidence in the case shows that the plaintiff corporation, as soon as organized, and before 1866, closed up the Black Snake river at its upper end, where it first leaves the Black river, for the purpose of turning its waters into the main channel, in order to increase the volume of water in that channel. It also shows that the west bank of the Black river, immediately above the point where the Black Snake departed from the main channel, was low, so that whenever there was any considerable rise of the water in the river it overflowed that bank and passed off into the low lands between the river and the Mississippi, and did not return again into the Black river, and that the plaintiff corporation, in order to prevent this overflow and increase the volume and depth of water in the Black river, built a dyke or embankment on the west bank of Black river, from the mouth of the Black Snake north, for the distance of a half mile or more, and that this embankment was maintained by the plaintiff corporation. as well as the dam or obstruction which prevented the flow of water from the Black river into the Snake river, from the time they were built until after the organization of the defendant corporation in 1876. The evidence also shows that the defendant corporation, immediately after its incorporation, broke down the dyke of the plaintiff on the west bank of the river, near the place where the waters of the Black Snake left the main river, so as to permit the waters to flow into the Black Snake channel the same as it did before the plaintiff's improvements were made, and have since continued to keep open the breach in said dyke or embankment.

In order to present the material questions in the case it will not be necessary to review the testimony to any extent, as the findings of fact and the conclusions of law, drawn therefrom by the learned circuit judge, present the real questions concerning which there is any dispute. The findings of fact are very full, and as to the material matters there is no great dispute as to their general accuracy. If the learned circuit judge has erred in the matter, the error is in the conclusions of law which he draws from such facts. We will therefore omit from this opinion the findings of fact, and insert merely the conclusions of law as the basis of our views in examining the correctness of the conclusions arrived at by the learned circuit judge. The following are the conclusions of law as declared by the circuit judge:

“(1) That the channel called Black Snake is a part of Black river, and is a public highway.

(2) That the plaintiff's charter did not authorize the plaintiff to close up Black Snake channel, so as to destroy its navigability, nor so as to prevent its use by the public as a highway.

(3) That the owners of the Black Snake channel have, as an incident to such ownership, the right to have the waters of Black river flow past their land as it was accustomed to flow, the right of access to the navigable waters of Black river from their own banks, and the right to land their own logs and property from the navigable waters of the river upon their own banks. The plaintiff has not and had not the right to close up the Black Snake channel, nor to prevent the natural flow of the water therein, so as to destroy the rights of riparian owners upon that channel; nor to erect or maintain levies or embankments on the banks of Black river, without making compensation to the riparian owners.

(4) That the plaintiff's proceedings for the condemnation of several tracts of land, as described and set forth in the complaint, were abandoned, and gave the plaintiff no right in such lands.

(5) That there is nothing in plaintiff's charter which forbids the riparian owners upon the Black river, or upon any of its navigable channels, of the right to maintain in the stream, in front of their own banks, suitable booms, piers, assorting and rafting works, in aid of the navigation of the stream with logs, at their peril only of obstructing navigation. The construction of such works by riparian owners is not an invasion of the plaintiff's rights under its charter.

(6) That the defendant, the La Crosse Booming & Transportation Company, being the owner of both banks of the Black Snake channel, had and has the right to maintain in front of its banks on the channel, in aid of the navigation of the Black river with logs, suitable booms, piers, and rafting works, and the right to float its logs into and along that channel to its booms and rafting works. In the lawful exercise of those rights it might lawfully remove the obstructions placed there...