City of Milwaukee v. State

• Citation: 193 Wis. 423,214 N.W. 820
• Parties: CITY OF MILWAUKEE v. STATE ET AL.
• Decision Date: 20 June 1927
• Court: Wisconsin Supreme Court

193 Wis. 423

214 N.W. 820

CITY OF MILWAUKEE

v.STATE ET AL.

Supreme Court of Wisconsin.

June 20, 1927.

Appeal from Circuit Court, Milwaukee County; Otto Breidenbach, Judge.

Action by the City of Milwaukee against the State and unknown defendants. Judgment for plaintiff, and defendant named appeals. Affirmed.--[By Editorial Staff.]

The action is brought by the plaintiff to quiet title in and to the lands referred to in the findings, hereinafter set forth. From an examination of such findings, the issuable facts will be readily perceived; and the conclusions of law following the findings present concisely the legal issues involved and determined:

“Findings of Fact.

(1) That the Illinois Steel Company is the owner of a large tract of land immediately north of Wilcox street in said city of Milwaukee, which is necessary to be used in the construction of the harbor contemplated by the city of Milwaukee, upon a portion of which land is located a large slip and dock and unloading facilities used by the said Illinois Steel Company in the operation of its plant, at which boats loaded with material used by said Illinois Steel Company in its operations dock and unload such material.

(2) That the lands of the said Illinois Steel Company, lying north of Wilcox street, are necessary for the construction and development of the harbor planned by said city of Milwaukee, to acquire which the said city of Milwaukee has instituted condemnation proceedings.

(3) That the said city of Milwaukee and the said Illinois Steel Company have entered into an agreement in compromise and settlement of such condemnation proceedings, whereby, in order to preserve the slip, dock, and shipping facilities of the said Illinois Steel Company, the city has agreed to convey to the Illinois Steel Company the submerged lands in Lake Michigan immediately adjacent to the property of the said Illinois Steel Company between Wilcox street extended and Russell avenue extended and within 1,500 feet of the said shore line of said Lake Michigan, a portion of which is to be filled by said Illinois Steel Company and a slip and dock constructed thereon, and the necessary unloading facilities equivalent to those now owned by said Illinois Steel Company, at its present slip and dock, placed thereon, which filling the construction of the slip and dock, and the cost of removing and installing the unloading facilities are to be paid for by said city of Milwaukee.

(4) That the carrying out of the contract between said city of Milwaukee and the Illinois Steel Company will enable the city of Milwaukee to acquire the lands of the said Illinois Steel Company north of Wilcox street much cheaper than by condemnation or purchase and save the city of Milwaukee a sum in excess of $3,000,000.

(5) That the area between Wilcox street extended and Russell avenue extended and the shore line of Lake Michigan, adjacent to the lands of the Illinois Steel Company, extending for 1,500 feet therefrom into Lake Michigan, is not used for purposes of commerce either in fishing or in navigation. That there are no docks in, upon, or immediately adjacent to any portion of said area. That there are no industries south of said Russell avenue requiring any use of said area for purposes of navigation. That the average depth of the water in said area at a point 1,500 feet distant from and parallel to said shore line is not to exceed 26 feet. That the boats now used on said Lake Michigan require for practical and economical use a depth of not less than 26 feet of water, and the slips to be constructed in the proposed harbor of the city of Milwaukee will have a carrying depth of 30 feet. That the said area is not used for recreational purposes except by an occasional fisherman, swimmer, sail or row boat, and that no general or common use of said area for recreational or business purposes is made by the public or any member of it.

(6) That the filling of said area and the use thereof by the said Illinois Steel Company will not injuriously affect or result in any impairment of the interests of the state of Wisconsin nor of the public or any member of the public, in the waters now covering said area or the use or enjoyment of the waters adjacent thereto.

(7) That any or all of the uses now made of said area can be made of the waters immediately adjacent to said area on the east and south without any impairment or inconvenience.

(8) That, by the construction of the slip, dock, and unloading facilities on the land, made by filling a portion of said area as proposed in and by said contract between the said city of Milwaukee and the Illinois Steel Company, the navigation in said area will be greatly improved, and that the fishing will also be improved, that the filling of said area will protect the harbor works to be constructed by the said city north of Wilcox street and will improve that portion of said Lake Michigan as a harbor, and that the United States government has issued permits for the work, showing that the same will be an aid to commerce and navigation.

(9) That the owners of the lands immediately adjacent to the area proposed to be filled are the city of Milwaukee and said Illinois Steel Company, and that such owners will not be injuriously affected by the proposed filling and the conveyance of said area to said Illinois Steel Company.

(10) That the recital of facts in section 2 of chapter 285 of the Laws of 1923 are all true, and that such filling and conveyance, because of the resultant development of the harbor of the city of Milwaukee, will benefit such lands and will promote the rights and interests of the state and of the public in and to the waters and submerged lands adjoining said area.

(11) That the summons was properly drafted and published to cut off the rights of all nonappearing and unknown claimants.

Conclusions of Law.

(1) That neither the state of Wisconsin, in its own right or in the right of the public whom it represents, as trustee, or the public, have any claim to or right, title, or interest in the said submerged lands between Wilcox street extended and Russell avenue extended between the property of the Illinois Steel Company and a line parallel thereto and extending into Lake Michigan a distance of 1,500 feet between said Wilcox street extended and Russell avenue extended, which were not disposed of in chapter 358 of the Laws of Wisconsin of 1909 and chapter 285 of the Laws of 1923, both of which are valid acts, being proper exercise by the state of the power to aid navigation at the expense of slight swimming, infrequent fishing, and occasional small craft navigation as to a small portion of a large harbor.

(2) That the said city of Milwaukee, because of said two laws, is the owner in fee simple of said lands, with full right, power, and authority to fill the same or cause the same to be filled and convey same to the said Illinois Steel Company to be reclaimed and in the aid of commerce and navigation to construct dock and wharf facilities on any of said land and to use any or all of said land for any proper purpose, as is provided in chapter 285, Laws 1923.

(3) That the said state of Wisconsin, as trustee, or otherwise, and the public and any and all unknown claimants or owners should be barred against having or claiming any right or title in, to or over said lands and the waters over the same.”

Judgment having been entered in accordance with the findings, the defendant state of Wisconsin has taken this appeal.

Further facts will be referred to in the opinion.

John W. Reynolds, Atty. Gen., and Michael J. Dunn, Jr., Asst. Atty. Gen., for appellant State of Wisconsin.

John M. Niven, City Atty., and Clifton Williams, Sp. Asst. City Atty., both of Milwaukee, for respondent.

DOERFLER, J.

Millions of dollars are involved in the decision herein. The realization of a fond dream of a municipality to construct a gigantic municipal harbor also depends upon the outcome; but, over and above all, we are called upon to determine the right of Wisconsin as a sovereign state of the Union to cede to the metropolis of the state property held in trust by it, to promote the interests of navigation and commerce, with an authorization to convey a part of this trust property so ceded to a private industrial corporation, in order that the municipal project can be accomplished. The gravity of the main issue thus outlined is accentuated because it presents a new phase of the so-called trust doctrine which has not heretofore directly come before this tribunal for adjudication, although it has frequently been decided by the Supreme Court of the United States, and by the tribunals of last resort in a large number of the states. It is therefore with a profound sense of responsibility that we approach the consideration of the issues involved.

[1][2] All litigated cases must be decided according to law, either statutory or the common law. Where the Legislature has enacted statutes within the proper field of legislation, and not violative of the provisions of the federal and state Constitutions, its edicts are supreme, and they cannot be interfered with by the courts; and, where legal principles have been laid down by the courts in the proper exercise of their judicial functions, and have continued in force for such a period as to create vested rights, such principles are clothed with a force possessed by a statutory enactment, and should be recognized and applied until the lawmaking body sees fit either to abrogate or modify them. The courts are no respecters of individuals, as such, whether they be powerful from a material standpoint or are humble. As the immutable laws of nature cause the rain to fall upon the rich and the poor alike, the powerful and the weak, so it is the aim of the courts to emulate that highest law, in the administration of justice; and while, as has been said, courts are oftentimes overawed by the enormity of the issues, their solution, as in minor cases,...