Chippewa & Flambeau Improvement Co. v. R.R. Comm'n of Wis.

• Decision Date: 24 October 1916
• Citation: 159 N.W. 739,164 Wis. 105
• Court: Wisconsin Supreme Court
• Parties: CHIPPEWA & FLAMBEAU IMPROVEMENT CO. v. RAILROAD COMMISSION OF WISCONSIN.

164 Wis. 105

159 N.W. 739

CHIPPEWA & FLAMBEAU IMPROVEMENT CO.

v.RAILROAD COMMISSION OF WISCONSIN.

Supreme Court of Wisconsin.

Oct. 24, 1916.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Chippewa & Flambeau Improvement Company against the Railroad Commission of Wisconsin, to set aside an order of the Commission. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff is a corporation authorized by chapter 640 of the Laws of 1911 to maintain a system of water reservoirs on the headwaters of the Chippewa and Flambeau rivers. It acquired and owned a dam in the Manitowish river at the outlet of Rest Lake, which had been built in 1888. September 10, 1915, the defendant Commission made an order, requiring that said dam should be maintained and operated so that at no season should the maximum head of water therein exceed 8 feet 6 inches, nor be less than 5 feet 6 inches, except when the reservoir was covered with ice, when it might be lowered to a head of 2 feet 6 inches. This action is an equitable action brought to set aside that order for various reasons hereinafter stated. The circuit court found the order to be both reasonable and lawful, and from that judgment the plaintiff appeals.

Chapter 640 of the Laws of 1911 is an act designed to provide for the creation of a system of water reservoirs on the rivers named, primarily for the purpose of storing water in seasons of high water and letting it out gradually in seasons of low water, thus producing a uniform flow for the benefit of water powers below. The title and first two sections of the act read as follows:

“An act to authorize the Chippewa and Flambeau Improvement Company to construct, acquire, maintain, and operate a system of water reservoirs located on the headwaters of the Chippewa and Flambeau rivers and their tributaries, as described herein, for the purpose of producing a uniform flow of water in the Chippewa and Flambeau rivers and their said tributaries, and thereby improving the navigation and other uses of said streams and diminishing the injury to property both public and private.

The people of the state of Wisconsin, represented in Senate and Assembly, do enact as follows:

Section 1. 1. Subject to the supervision and control hereinafter provided for, authority is hereby given unto the Chippewa and Flambeau Improvement Company, in order to promote the purposes hereinafter set forth, to create, construct, acquire, maintain, and operate a system of water reservoirs located in or along the Court Oreilles river and its direct or indirect tributaries above the north line of town 38 north, the east and west forks of the Chippewa river and their direct or indirect tributaries above the junction of the same, the Thornapple river and its direct or indirect tributaries above its mouth, Butternut creek and its direct or indirect tributaries above its mouth, the north fork of the Flambeau river and its direct or indirect tributaries above the flowage of the dam authorized to be built by chapter 400 of the laws of 1905, as amended by chapter 361 of the Laws of 1907, and the south fork of the Flambeau river and its direct or indirect tributaries, including the Elk river, above the junction of said south fork of the Flambeau river and said Elk river, in this state, and for that purpose said grantee may construct, acquire, maintain, and operate all such dams, booms, sluiceways, locks, and other structures in, along, or across any and all of said portions of said rivers and their said tributaries as may be necessary or reasonably convenient to accomplish the purposes of this grant, and may clean out, straighten, deepen, or otherwise improve any of said rivers and tributaries in order to improve the navigation thereof and to prevent injury to property bordering on said waters.

2. All franchises and all riparian rights and rights of flowage, either perfected or inchoate, howsoever acquired, by any person or any corporation organized to improve the navigation for any purpose of either or any of said rivers or their tributaries, shall be and hereby are made assignable to the Chippewa and Flambeau Improvement Company, and shall be of the same force and effect in the possession and ownership of such assignee to accomplish the purposes of this act as the same may have had before assignment to accomplish their original purpose.

Sec. 2. 1. The said authority is granted for the purpose of producing as nearly a uniform flow of water as practicable in the Chippewa and Flambeau rivers, through all seasons, by holding back and storing up in said reservoirs the surplus water in times of great supply, and discharging the same in times of drought and a scarcity of water, and thereby, and by other means, improving the navigation of said Chippewa and Flambeau rivers throughout their entire length, for boats, barges, and other water craft, and for the running, driving, rafting, booming, storing, sorting, and delivering of logs, timber, and lumber, and other forest products, and for the purpose of improving the usefulness of said streams for all public purposes, and of diminishing the damage and injury by floods and freshets to property, both public and private, located along said waters.

2. It shall be the duty of said Chippewa and Flambeau Improvement Company to so manage, operate, and maintain all of its said reservoirs and other works that the purposes aforesaid shall be accomplished to the greatest practical extent and so that as nearly a uniform flow of water as practicable shall be maintained at all times and at all points on said Chippewa and Flambeau rivers; and during the times when it may be found impracticable to maintain at the same time such uniform flow of water throughout the entire length of said rivers, the upper portions of said rivers shall be given preference.”

Section 3 of the act clothes the company with the power of condemnation of lands and riparian rights requisite for the construction or maintenance of any reservoirs, dams, or improvements necessary to accomplish the purposes of the act.

Section 4 provides that when the improvements owned or controlled by the company render log driving practicable on any stream, it may collect tolls on the logs driven, and shall have the rights and remedies granted to river improvement companies under section 1777, Statutes Wisconsin. Said section further gives the corporation the right, after it has established water reservoirs which will store 1,500,000,000 cubic feet of water which would not be stored by nature, to charge and collect reasonable tolls from water power owners on said rivers, or their tributaries, who are benefited thereby, not exceeding a certain percentage on the investment, such tolls to be fixed by the Railroad Commission.

Section 5 contains full provisions regulating the manner of determining the rates of toll by the Commission and providing for their becoming a lien upon water powers, dams, and flowage rights in case they are not paid.

Section 6 prohibits the company from purchasing any dam or flowage rights until they have been appraised by the Commission, or for any price in excess of such appraisal; it also prohibits the erection of a new dam except upon plans approved by the Commission, and requires the company to institute condemnation proceedings to acquire title to any lands which the Commission concludes will be necessarily overflowed by any new dam; it also contains the following clause:

“Such Railroad Commission shall cause the height to which the water may be raised by any dam to be indicated by permanent monuments and bench marks, and shall have supervision and control of the time and extent of the drawing of water from the reservoirs, and the power to compel the maintenance of all reservoirs established.”

Section 7 provides that all dams maintained by the company shall be subject to the statutes relating to sufficient fishways, and shall also have all necessary slides and other necessities for the passage of logs.

Section 8 declares the act to be a public act, for the accomplishment of public purposes, and that it is to be favorably construed to that end.

Section 9 reserves the right to repeal or amend the act, provides that if the company shall not have in operation reservoirs with a capacity of 1,500,000,000 cubic feet by January 1, 1913, its rights under the act shall cease, and that the state, whenever it has the constitutional power, may take over all the company's works for a compensation to be fixed in a certain specified manner. Section 10 provides that the act shall not be construed as divesting or releasing any right or interest held by the state, or that may be acquired under any law of the United States.

While the proceedings before the Railroad Commission, which finally resulted in the making of the order in question were pending, chapter 380 of the Session Laws of 1915 was passed, and it was stipulated by all the parties to the proceeding that the Commission should proceed and determine the matter with the same force and effect as if the entire proceeding had been commenced and all action taken subsequent to the passage of said chapter 380. By that chapter, section 1596--2 was added to the Wisconsin Statutes, the first two subdivisions of which are as follows:

“1. The Commission, in the interest of public rights in navigable waters or to promote safety and protect life, health and property is empowered to regulate and control the level and flow of water in all navigable waters and may erect, or may order and require bench marks to be erected, upon which shall be designated the maximum level of water that may be impounded and the lowest level of water that may be maintained by any dam heretofore or hereafter constructed and maintained in navigable waters; and shall establish and maintain gauging stations upon the various navigable waters of the state and shall take other steps necessary to determine...