Charnley v. Shawano Water-Power & River-Improvement Co.

• Decision Date: 19 March 1901
• Citation: 109 Wis. 563,85 N.W. 507
• Court: Wisconsin Supreme Court
• Parties: CHARNLEY v. SHAWANO WATER-POWER & RIVER-IMPROVEMENT CO.

109 Wis. 563

85 N.W. 507

CHARNLEY

v.SHAWANO WATER-POWER & RIVER-IMPROVEMENT CO.

Supreme Court of Wisconsin.

March 19, 1901.

Appeal from circuit court, Shawano county; John Goodland, Judge.

Application by William H. Charnley against the Shawano Water-Power & River-Improvement Company for an order appointing commissioners to assess plaintiff's damages for land overflowed by defendant's dam. From an order appointing such commissioners, defendant appeals. Affirmed.

Proceedings to obtain damages to property claimed to have been overflowed by defendant's dam. By chapter 235, Laws 1889, the privilege of erecting a dam across the Wolf river, near the city of Shawano, was granted to C. M. Upham and others for “manufacturing and other purposes.” Said parties or their assigns were given power to secure flowage rights, under section 1777, Rev. St. 1878, as amended by chapter 318, Laws 1882. Defendant is a corporation organized for the purpose of building said dam for hydraulic and manufacturing purposes, and to improve the river and facilitate the running of logs therein, and is the assignee and owner of the rights and privileges granted to Upham and others under the act mentioned. The dam was erected in 1892, and by it the defendant maintains a head of water averaging about 10 feet. Shawano creek, the outlet to Shawano Lake, empties into the Wolf river about a mile and one-half above the dam. This creek is navigable for logs and timber, and is 30 or 40 feet wide. Some 40 years or more ago a dam was built across this creek a little way above its mouth, in which a head of water from 6 to 8 feet was claimed to have been maintained continuously and adversely until 1892, at which time defendant purchased the dam from one Kast, together with all flowage rights. Shawano creek is about 4 miles long, and is the only outlet of Shawano Lake, which is a body of water of considerable size. W. H. Charnley is the owner of lots 1 and 2, section 14, township 27, range 16 E., on the banks of this lake. In 1897, Charnley filed a petition for the appointment of commissioners, under section 1777 and acts amendatory thereof, to appraise the damages to his lands by reason of the overflow of the same by defendant's dam. The petition sets out the facts required by the statute, and claims injury to about 25 acres of land, specifically described. An order for hearing was duly made. Upon the return day the defendant denied that the lands described in the petition were necessary for the maintaining of said dam; denied that any portion of said lands were overflowed. It then alleged the construction and adverse maintenance of the Kast dam, a purchase of Kast's rights, and a prescriptive right to overflow all of the lands described in the petition. It also alleged that it does not now and has not for several years past improved the river for the purpose of driving logs, and that its dam is now wholly maintained for the purpose of furnishing power and operating mills and manufacturing plants located at or near said dam. The testimony was taken, by stipulation, before a referee. Thereafter the court made findings, which are recited in the order appointing commissioners, among other things, to the effect that by the construction of its dam the defendant has overflowed said lands since about April 1, 1892, and that they were necessary for that purpose and the purposes of its incorporation; that it has no prescriptive right to overflow the same; and that the petitioner had suffered damages by reason thereof. This appeal is taken from said order.M. J. Wallrich and C. F. Dillett, for appellant.

Eugene M. Wescott and George C. Dickinson, for respondent.

BARDEEN, J. (after stating the facts).

The points made by the defendant are (1) that the evidence does not show that the lands described in the petition are overflowed by defendant's dam; (2) that the evidence does not show that the overflow of said lands is necessary in accomplishing the purposes of its creation; (3) that the defendant has a prescriptive right to overflow said lands.

1. Concerning the contention that the evidence fails to show that the petitioner's lands are overflowed by backwater from the defendant's dam, there is considerable evidence in the record to support the trial court's conclusion. We may say that it is supported by a fair preponderance thereof. To discuss it would serve no useful purpose. We must therefore overrule the defendant's contention on this point.

2. The petition made a prima facie case for the appointment of commissioners, and it was for the company to show why they should not be appointed. Gill v. Railroad Co., 76 Wis. 293, 45 N. W. 23. The defendant admits the purpose of its incorporation to be to build, maintain, and operate a dam across Wolf river under the franchise granted by chapter 235, Laws 1889, for hydraulic and manufacturing purposes, for the improvement of said river, and the building and maintaining of piers to facilitate the running of logs therein. It accepted the franchise so granted, and erected its dam pursuant to the power thereby conferred. It must be presumed that it built its dam to such a head and of such dimensions as to properly carry out its corporate purposes, in absence of evidence to the contrary. Whatever may be the fact, when the company is called upon to pay compensation for the land it takes by overflow, it cannot be heard to say that it has taken more than is absolutely necessary to carry out its purposes. So long as it maintains its dam under authority rightfully granted by the state, it will not be permitted to say that its dam is built somewhat higher than is absolutely necessary to carry out some of its corporate purposes. See Babcock v. Railroad Co. (Wis.) 83 N. W. 316. By a fair construction of the act granting the franchise, the person whose lands are overflowed may, as was done in this case, institute proceedings to secure his damages, when the company fails to proceed. When this is done, as said in the case cited, “it would be incongruous to permit the latter to deny necessity of its taking, or to insist on allegation or proof by the other party, when the whole proceeding rests on its own acts, affirming such necessity in the most unambiguous terms.”

3. The trial court found that the defendant had no prescriptive right to overflow these lands. Such finding is but a mere conclusion of law, and it is difficult...