Fox River Flour & Paper Co. v. Kelly

• Decision Date: 13 December 1887
• Citation: 35 N.W. 744,70 Wis. 287
• Parties: FOX RIVER FLOUR & PAPER CO. v. KELLY ET AL.
• Court: Wisconsin Supreme Court

70 Wis. 287

35 N.W. 744

FOX RIVER FLOUR & PAPER CO.

v.KELLY ET AL.

Supreme Court of Wisconsin.

December 13, 1887.

Appeal from circuit court, Outagamie county; GEORGE H. MEYERS, Judge.

Bill in equity by plaintiff, the Fox River Flour & Paper Company, against W. H. Kelly, J. E. Springer, Ole Stephensen, N. E. Stephensen, and A. H. Conkey, as assignee, to perpetually enjoin defendants from using any water-power in hostility to plaintiff's title, without leasing or purchasing the same from plaintiff. The cause was referred to a referee to take evidence, and in September, 1886, the court rendered judgment enjoining defendants, and for costs, the claim for damages having been withdrawn by plaintiff. Defendants appeal. The essential facts are stated in the opinion.H. D. Ryan and Nash & Nash, for appellants.

Moses Hooper and F. W. Houghton, for respondent.

COLE, C. J.

The plaintiff claims to be the owner of all the unsold water-power created by a system of dams on the Fox river at Appleton, and has filed this bill in equity to restrain the defendants, who own a mill on a lot below, from diverting or using any water drawn from its said water-power. An objection was taken here by the learned counsel for the defendants that the plaintiff had an effectual remedy at law, and that a court of equity should turn it over to that remedy where there could be a jury trial settling its rights in the water-power before granting the relief asked. The answer raises no such objection, and we think the facts stated in the complaint present a case for the interference of a court of equity, providing the plaintiff establishes its right to all the unsold residue of the power as it claims. It is plain that an action of trespass for every interference with its rights would lead to interminable litigation. And it is well settled that equity will interfere, by way of injunction, to restrain irreparable mischief, or to restrain oppressive and interminable litigation, or to prevent multiplicity of suits. 2 Story, Eq. Jur. §§ 925-927. The plaintiff's case may well stand upon that ground, even if a seasonable objection had been interposed.

This case involves questions relating to riparian rights; and it may be well, at the outset, to refer to some elementary doctrine which states or defines what these rights are. In Head v. Manufacturing Co., 113 U. S. 9-23, 5 Sup. Ct. Rep. 441, Mr. Justice GRAY says: “The right to the use of running water is publici juris, and common to all the proprietors of the bed and banks of the stream, from its source to its outlet. Each has a right to the reasonable use of the water as it flows past his land, not interfering with a like reasonable use by those above or below him. One reasonable use of the water is the use of the power inherent in the fall of the stream and the force of the current to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back.” In Bates v. Iron Co., 8 Cush. 548-552, Chief Justice SHAW says: “The relative rights of land-owners and mill-owners are founded on the established rule of the common law that every proprietor through whose territory a current of water flows, in its course towards the sea, has an equal right to the use of it, for all reasonable and beneficial purposes, including the power of such stream for driving mills, subject to a like reasonable and beneficial use by the proprietors above and below him on the same stream. Consequently, no one can deprive another of his equal right and beneficial use by corrupting the stream, by wholly diverting it, or stopping it from the proprietor below him, or raise it artificially, so as to cause it to flow back on the land of the proprietor above.” Chancellor Kent says: “Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run, ( currere solebat,) without diminution or alteration. No proprietor has a right to the use of the water to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat, is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the waters back upon the proprietors above, without a grant, or uninterrupted enjoyment of twenty years, which is evidence of it.” 3 Kent, Comm. *439. The authorities might be multiplied indefinitely which define the right in substantially the same language, but it is unnecessary. In Lawson v. Mowry, 52 Wis. 219, 9 N. W. Rep. 280, the same doctrine is recognized and applied, and many cases cited which enforce it.

Applying this doctrine to the case before us, and it is plain that in the absence of any grant, or of a title acquired by adverse user, the defendants as riparian proprietors only have the right to the natural flow of the water of the river by their lot; also, as incident to their ownership of the lot, they have the right to utilize any fall in the stream in its natural state, as it passes by their lot, for the purpose of a water-power. This is the full extent of their rights as riparian proprietors owning the lot on the river below the water-power. But it is claimed by their counsel that, upon the facts disclosed in the evidence, the defendants took as incident or appurtenant to their lot, the right to use water from the hydraulic power which had been created on the river; and this is the real point in controversy.

It is impossible, within any reasonable limits, to make a full statement of the facts upon which the defendants base this right. It must suffice to say that the evidence shows that, in 1849, Mr. Amos A. Lawrence was the owner of a part of the site of the city of Appleton, which had been purchased for him by Mr. Reeder Smith, who acted as his agent in making such purchases, under an agreement that he was to have an equal interest in the profits of the adventure as compensation for his services in purchasing and looking after the property. A part of the property lay along the north bank of Fox river; and this was, in 1850, platted into blocks A, B, C, and D, and these blocks into about a hundred lots. Block C lay along the river, between the westerly line of the Appleton plat and Morrison street, and was divided into lots, which were numbered from one, the westerly line of the block, to twenty-six, at the easterly end at Morrison street, and was bounded on the north by Water street. In 1849, Lawrence commenced the construction of a wing-dam and side-dam, which rested upon the bank of the river on lot 18 of block C, at a point about 160 feet above the east line of the lot as platted on McKelcon's map,¹ which is mentioned in the evidence, and 400 feet or more above or west of the east line of block C. This wing-dam and side-dam were completed in 1850, and

STEPHEN'S MAP OF APPLETON, 1872.

This map does not show the canal in block 14 in its whole length, but represents it as extending only down to lot 4, instead of to lot 12.

The Appleton Water-Power Company's dam, west of the bridge, is not indicated in the map, but has been added for better information.

IMAGE

created a mill-pond or water-power on block C. In the fall of 1850, Lawrence commenced the construction of a mill-race or canal leading from the shore end of the wing-dam down the river, nearly parallel with the bank, and opening at the west end into the mill-pond. In 1851, this canal or raceway had been constructed by Lawrence from the mill-pond down to Dew street, and across 12 lots which constituted block 14. From the time of the completion of the canal until now, the wing-dam and southern bank of the canal have all been maintained,--the water of the mill-pond communicating with the raceway,--and all held and maintained for the purpose of creating a water-power. On or before November, 1850, Smith and Lawrence entered into an agreement for a division of the unsold land, at and near Appleton, of which Smith was to have an equal interest in the profits. By this agreement a division was provided for, and which was ultimately carried out by a decree of the court. The land and the lots contained in the McKelcon plat, and the land in front of that plat, covered by the waters of the Fox river, and the water-power and mill privileges on the river in front of the lots and blocks in the said McKelcon plat, were set over to Lawrence, free from any claim by Smith. Lawrencethus, by this division, became the sole owner of the property just mentioned, free from all equities which Smith had had in it. Block 14 contained 12 lots,¹ and, under the decree, was divided between Smith and Lawrence; Smith taking the even-numbered lots, and Lawrence the odd-numbered. The defendants own lot 8, deriving title from Smith as their remote grantor. The plaintiff claims under Lawrence as its remote grantor, and owns the wing-dam, the side-dam, the dam-landing, and the land, including the mill-race, and the land between it and the river from the dam-landing, about 400 feet, to block 14; also the alternate odd-numbered lots in block 14 from this point down to defendant's lot, excepting some small parcels sold by plaintiff or its grantors, with specified quantities of water to be used with each parcel. Lot 8 lies about 900 feet below the dam-landing, and reaches entirely across the mill-race, and to and into Fox river, so that water can be and is drawn from the canal, and discharged into the river without going off...