Delta Fish & Fur Farms, Inc. v. Pierce

• Decision Date: 10 February 1931
• Court: Wisconsin Supreme Court
• Parties: DELTA FISH & FUR FARMS, INC., v. PIERCE ET AL.

203 Wis. 519

234 N.W. 881

DELTA FISH & FUR FARMS, INC.,

v.PIERCE ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1931.

Appeal from a judgment of the Circuit Court for Buffalo County; S. E. Smalley, Judge. Reversed, with directions.

This action was commenced September 19, 1929, by the Delta Fish & Fur Farms, Incorporated, to restrain the defendants from trespassing upon plaintiff's lands. From a judgment entered July 5, 1930, dismissing the plaintiff's complaint upon the merits, the plaintiff appealed.

The plaintiff is a Wisconsin corporation engaged in the fur farm business in the counties of Buffalo and Trempealeau. It is the owner of more than 5,000 acres, being a part of and lying within Trempealeau drainage district. The district is regularly organized, and exists under and by virtue of the district drainage laws of this state. This district comprises about 7,000 acres of lowlands located in the counties of Buffalo and Trempealeau on the easterly side of the Mississippi river. The district was organized in the year 1910. Before the formation of the drainage district, Trempealeau river and Pine creek ran through the plaintiff's lands, and in times of high water these streams overflowed and water also overflowed the plaintiff's lands from the Mississippi river through bridges in the Burlington Railroad right of way. The Trempealeau river is a meandered navigable stream and Pine creek was at certain times of the year navigable. At the time of the organization of the drainage district, these streams were found to be the only navigable waters within the district.

In the drainage proceedings, after due public notice, contest, and trial, the court found and decided: (1) That the only navigable waters within the district were the Trempealeau river and Pine creek. (2) That the navigability of said streams would be improved by changing the courses thereof. (3) That, after these streams were diverted into a new channel as ordered by the court, no navigable waters in fact would thereafter remain on the lands now belonging to the plaintiff. The court, after specifically finding these facts, duly confirmed the report of the commissioners. From the order and decision of the circuit court just mentioned, an appeal was taken to this court, where the order and decision of the trial court was in all respects affirmed. Merwin v. Houghton, 146 Wis. 398, 131 N. W. 838. Thereafter a diversion channel was built so that the Trempealeau river and Pine creek flowed in an improved condition without the plaintiff's land but within the district. A levee was constructed running parallel to the diversion channel. Bridges in the Burlington Railroad right of way were closed up so as to exclude overflow waters from the Mississippi river. Bridges were also closed in the Northwestern Railroad right of way and also in the Green Bay & Western Railroad right of way. Ditches and other drainage improvements were constructed. All of the improvements mentioned were completed in 1912.

The plaintiff's lands lie in the basin bounded on the north and east by the levee and the diversion channel, on the southeast by Trempealeau Mountain, and on the southwest by the Burlington Railroad embankment, and on the north and west by the highway embankment, and highlands. The plaintiff owns all of the lands within said boundaries and basin except only a comparatively small piece at the foot of Trempealeau Mountain, included in Perrot Park, which is a state park. Since 1912 the waters of the Mississippi river, Trempealeau river, and Pine creek, and all other waters arising without the basin of the district, have been largely excluded from the plaintiff's lands, except in the year 1916, when the Burlington embankment broke and the whole basin was flooded. Every year there occurs the usual fall of snow and rain which drains into the ditches and down upon the lower levels of the plaintiff's lands. At different times considerable water has accumulated there. To get rid of this water falling within the basin and at the same time to exclude the waters from without the basin, gates were built at the mouth of the drainage ditch in the levee near to Trempealeau Mountain. These gates were constructed so that they could be opened when the water in the Trempealeau and Mississippi rivers was lower than the water within the basin and could be closed when the water in such rivers was higher than the basin. A pump was installed near such gates by which water could be pumped over the levee into the channel when the gates were closed. This pump was found to be inadequate, and in 1923 the commissioners of the district reported that fact to the court and further reported that the water could be removed and all the lands drained by the installation of another pump. This report was filed, and, after giving due public notice, the court approved such report and ordered such additional improvements to be made so that all of the water could be pumped out as soon as possible. Due, however, to the fact that there was a great slump in the value of agricultural lands and due to the probable difficulty of disposing of the bonds, the said improvements were never made.

After 1923 the plaintiff, with the consent of the drainage district commissioners, decided that, because of the agricultural depression, it would, instead of pumping out the water, use it for the development, of a muskrat and fish farm. The plaintiff began to drill artesian wells so as to maintain, on part of its lands, a uniform stage of water. At the time of the alleged trespass by defendants, fifteen wells had been drilled, and the water within the basin was about seven feet deep at the lower level, while the water without the basin was less than a foot in depth. By keeping this stage of water, about one-half of plaintiff's lands were covered. The upper one-third of the plaintiff's lands are farmed in the usual manner. The lower part thereof is thus made suitable for muskrat farming. Without the improvements of the drainage district, the basin would be alternately flooded and dried up and no uniform stage of water could be maintained thereon. The result of the drainage, therefore, is to make the upper part suitable for ordinary farming and the lower part suitable for muskrat farming. At the opening of the duck season in the year 1929, the defendants, evidently pursuant to a well-defined plan, entered upon the plaintiff's lands against its will, for the purpose of asserting their rights, as members of the public, to fish and hunt upon the waters there existing. The defendants threatened to go upon the waters on the plaintiff's lands whenever they wished to do so, as a result of which this action was commenced. The court found that, at the time the plaintiff purchased its lands, they were, to a considerable extent, covered by public navigable waters and had been so covered for a period of more than forty years immediately preceding the commencement of this action and had been generally resorted to and used by hunters and fishermen and others for the purposes of hunting, fishing, and recreation, and concluded that the defendants were within their rights in going upon such waters. Judgment dismissing the plaintiff's complaint upon the merits was accordingly entered, from which the plaintiff appealed.

M. L. Fugina, of Fountain City, Morris J. Owen, of Winona, Minn., and Lees & Bunge, of La Crosse, for appellant.

Higbee & Higbee, of La Crosse, and John A. Markham, of Independence, for respondents.

NELSON, J.

The only question for decision on this appeal is whether the waters on the plaintiff's lands are public navigable waters or private waters.

[1] This court, throughout its history, has always jealously guarded the navigable waters of this state and the rights of the public to use and enjoy them. A citation of the numerous authorities to sustain this statement seems wholly unnecessary.

But, in the view we take of this case, we are not here dealing with navigable public waters, but rather with waters which were heretofore found by the circuit court of Trempealeau county to be nonnavigable in fact, which finding was in all respects approved by this court. Merwin v. Houghton, 146 Wis. 398, 131 N. W. 838. It appears from Merwin v. Houghton, and the record herein, that the Trempealeau drainage district was duly organized in the year 1910. No question is raised as to the validity of its organization. No claim is made that its organizers failed in any respect to comply with all of the provisions of the then existing laws relating to the giving of notice to the public. The original proceedings to establish the Trempealeau drainage district were had in the circuit court of Trempealeau county; the presiding judge being the Honorable E. C. Higbee, now one of the attorneys for the respondents in this action. Under the drainage law, the commissioners appointed by the court were required to make a survey and to submit a detailed plan to the court. It appears that this duty was fully performed. It then became the duty of the court, after due notice, to conduct a hearing and to pass upon the feasibility of the plan proposed. The court held said hearing at which persons who opposed the organization of such district on various grounds appeared and were heard.

At the time such hearing was had, it was the settled law of this state that no drainage district could be formed which would result in the destruction or impairment of any navigable waters. In re Dancy Drainage District (1906) 129 Wis. 129, 108 N. W. 202;In re Horicon Drainage District (1908) 136 Wis. 227, 116 N. W. 12; Johnson v. Eimerman (1909) 140 Wis. 327, 122 N. W. 775. The drainage law, however, authorized the commissioners to “do all necessary acts in * * * clearing out and removing obstructions from or changing the natural course of natural or original channels or streams within the limits of the drainage district.” The law specifically provided that “the course of no...