City of Janesville v. Carpenter

• Decision Date: 21 June 1890
• Parties: CITY OF JANESVILLE ET AL. v. CARPENTER.
• Court: Wisconsin Supreme Court

77 Wis. 288

46 N.W. 128

CITY OF JANESVILLE ET AL.

v.CARPENTER.

Supreme Court of Wisconsin.

June 21, 1890.

Appeal from circuit court, Rock county.

Winans & Hyzer, for appellant.

J. B. Doe and William Ruger, for respondents.

ORTON, J.

It is charged in the complaint as follows: Many years since a building known as the “Myers Building” was erected on the southerly side of and adjoining Milwaukee-Street bridge, in the city of Janesville, over the center of Rock river, as the same flowed in its natural state. Said building is 40 feet in width, and is supported by large stone piers resting on the bed of said river, and which have so obstructed its flow as to cause a large sand-bar to form in said river, near to and on the down-stream side of the building. Within the period of three years last past, the defendant, Edwin F. Carpenter, erected a building south of and adjoining the southerly side of said bridge at or near its easterly end, 40 feet in width, fronting on said bridge, and extending southerly over said river a distance of 100 feet, and supported by numerous piles driven into the bed of said river, the most westerly of which being in the channel of said river in or near the deepest water in the same, leaving a vacant space about 87 feet in width between the westerly side of said building so erected by the defendant and the easterly side of said Myers building. The defendant threatens that he will, without the permission of or an order from the common council of said city, drive numerous piles into the bed of said river, and erect thereon a building south of and adjoining the southerly side of said Milwaukee-Street bridge, and extending from said building so heretofore erected by him, to said Myers building, and having a frontage of 80 feet or more on said bridge, and extending over and down said river for a distance of about 100 feet, and commenced the driving of piles in the bed of said river for such purpose. The consequences of permitting the defendant to so erect said building as affecting the interests of the city of Janesville, will be that others will soon erect buildings fronting on said bridges, and supported in like manner, until the whole space over said river, on both sides of said bridges, is occupied by similar buildings fronting on said bridges, and extending up and down said river a distance of about 100 feet from the sides of said bridges; and by reason thereof the flow of the water in said river will be further permanently obstructed, and the interests of said city and its inhabitants greatly prejudiced and injured by obstruction to the circulation of air, and in respect to the dangers of fire and flood, and to the public health, and as respects equality in the matter of taxation and assessments and the benefits thereof, and that said building will be in violation of an ordinance of said city against erecting any buildings in said river. As affecting the interests of the other plaintiff, the Janesville Cotton-Mills, it is alleged that the erection of said building will cause the waters of said river to set back “to some extent” at the place where the water used by said Janesville Cotton-Mills is discharged into said river.

In the affidavit of Edward Ruger, a civil engineer, in support of the complaint, it is stated that said building would, to some extent, cause the water to set back to such place, and in his affidavit procured by the defendant it is stated that said building would cause the water to set back on the water-wheels of said Janesville Cotton-Mills “to some extent, but to what extent he could not then say, but it would be slight.” It is alleged, also, that the Janesville Cotton-Mills is a tax-payer of said city and a corporation, and that Rock river is a public highway, and has been returned as navigable, and has been meandered, and for a great many years a dam across said river, about 70 rods above said bridge, has existed by lawful authority, and that a considerable number of mills and factories have received their water-power therefrom, and among them the Janesville Cotton-Mills. The complaint shows also that, by the foundation of buildings and the building up within the natural margins of the river on the northerly side of the bridge, the width of the river has already been diminished one-third, and the waters have been set back as far as the dam, and that said Milwaukee-Street bridge and Court-Street bridge have obstructed the flow of the river to a considerable extent, and that the abutments and piling thereof in the bed of the river, and the filling in of earth and other materials, and placing the foundations, walls, and piers for the support of buildings, and the throwing in of ashes and other materials in the bed of the river, have greatly obstructed the river between said bridges and other localities, and that there is danger that other buildings and obstructions will be placed in the river by the example of the defendant.

These are substantially the material allegations of the complaint on which the circuit court granted a temporary injunction against the erection of said building. The defendant, after answering said complaint, moved that the said injunction be dissolved. The motion was heard upon the pleadings and one affidavit presented by the defendant, and seven affidavits presented by the plaintiffs, and denied. From the order denying said motion this appeal is taken. The answer denies all of the speculative and predicted consequences which the complaint alleges will follow the erection of said building, and the setting back of the water to any extent, and the effect as to the public health and danger from fire or flood, and the consequences of his pernicious example, and that the river is navigable in fact, and that the bridges are old and dilapidated, and will soon be replaced by iron ones, and some other immaterial allegations and the other allegations are admitted. The answer then alleges as follows: The Rock river throughout its whole length is crossed and obstructed by dams, bridges, and buildings and other structures, and that within the city there have been maintained six bridges resting upon piers and piles, four of which were constructed by the city within the space of a mile and a half, and two of them within the space of 40 rods. The lower bridge is known as “Court-Street Bridge,” and is about 40 rods below the proposed building, and its abutments and approaches are built within the river, and diminish its width so that it is 20 feet narrower at that place than where the defendant's proposed building will be, and three of said bridges are between two dams across the river. The lower dam obstructs the flow of the river so that it is virtually a mill-pond between the dams, and the water is raised up wards of two feet when it sets back to the upper dam, and the proposed building is between these dams. There are numerous buildings and structures along the bank of the river resting upon piles driven in the bed of the river, among which are certain buildings of the plaintiff, the Janesville Cotton-Mills, and of other mill-owners, and there is a large sand-bar six feet above the bed of the river, between the cotton-mills and the proposed building. The proposed building will be constructed on piles driven into the bed of the river in line with the piles of said Milwaukee-Street bridge, and the building itself will be above the river. The piles under the said bridge are driven at an angle to the current of the river, and, if piles could obstruct the current, (which is denied,) such a networkof piles would do so. The defendant acquired his title in fee to the bed of the river where he proposes to build from the riparian owner of the lot, one Thomas Lappin. The defendant pleads, in abatement, that several causes of action are improperly united in the same action.

The affidavits in support of the complaint cannot, of course, go further than the complaint in stating the cause of action, and therefore need not be specially referred to. The affiant Edward Ruger made affidavits on behalf of both parties as to the extent to which the waters of the river would be set back below the wheels of the Janesville Cotton-Mills, and he leaves the question with the qualification that it would be slight, and the extent of it he could not state. The learned counsel of the appellant contends that the complaint does not show that the proposed building will injure to any extent either the city of Janesville or the Janesville Cotton-Mills. The condition of the river as to its uses and obstructions, other than by the proposed building, are only material to show that it would be impossible for any one to state the extent, if any, that the proposed building would contribute, by example or otherwise, to produce the consequences, which, if they exist at all, must have already been produced to their fullest extent by other far more adequate causes. How can it be said that the proposed building, standing on piles driven in the river, could, even by example, affect the general health, cause fires and freshets, obstruct the circulation of the air, affect the equality of taxation and assessments, or the general welfare, when, if any such consequences could be appreciably produced by it, they must have already been overwhelmingly produced by a great many far greater obstructions in the river by dams, bridges, buildings, and other constructions. And precisely so as to its injury to the water-power of the Janesville Cotton-Mills, as to which one of the most competent civil engineers of the state was unable to say to what extent it injured it, if at all, and did state that it must be slight. It would seem that if such a comparatively slight cause would produce any effect whatever, such far greater obstructions in the river, which have existed for a long time, must have produced all such consequences to a most astounding and alarming extent, and the city must have suffered in...