Fox River Paper Co v. Railroad Commission of Wisconsin, No. 492

CourtUnited States Supreme Court
Writing for the CourtSTONE
Citation47 S.Ct. 669,71 L.Ed. 1279,274 U.S. 651
Docket NumberNo. 492
Decision Date31 May 1927
PartiesFOX RIVER PAPER CO. et al. v. RAILROAD COMMISSION OF WISCONSIN

274 U.S. 651
47 S.Ct. 669
71 L.Ed. 1279
FOX RIVER PAPER CO. et al.

v.

RAILROAD COMMISSION OF WISCONSIN.

No. 492.
Argued April 11 and 12, 1927.
Decided May 31, 1927.

Messrs. E. J. Dempsey, Moses Hooper, and John F. Kluwin, all of Oshkosh, Wis., for plaintiffs in error.

Page 652

Messrs. R. M. Rieser, of Madison, Wis., and Adolph Kanneberg, of Madison, Wis., for defendant in error.

Mr. Justice STONE delivered the opinion of the Court.

Plaintiffs in error are riparian owners of land bordering on the Fox River, a navigable stream. They own a dam at Appleton, Wis., which has been maintained since its construction in 1878 without permission from any state authority. Since 1841 the statutes of the territory, and later of the state, have forbidden the building of a dam on any navigable river without legislative consent. Laws 1841, No. 9; R. S. 1849, c. 34; R. S. 1858, c. 41, § 2; 1 Wis. Stat. 1898, c. 70, § 1596; 1 Wis. Stat. 1925, § 30.01(2).

By section 31.02, Wis. Stat. 1925, the state Railroad Commission was given supervisory power over the navigable waters of the state, and control of the construction and maintenance of dams in navigable rivers. Section 31.07 authorizes it to grant permits to applicants to operate and maintain existing dams. By section 31.09 every applicant for a permit is required to file with his application proposals in writing, consenting, among other things, to the grant of a permit subject to the condition:

'That the state of Wisconsin, if it shall have the constitutional power, or any municipality, on not less than one year's notice, at any time after, the expiration of thirty years after the permit becomes effective, may acquire all of the property of the grantee, used and useful under the permit, by paying therefor, the cost of reproduction in their then existing condition of all dams, works, buildings, or other structures or equipment, used and useful under the permit, as determined by the commission, and by paying in addition thereto the value of the dam site and all flowage

Page 653

rights and other property as determined by the commission prior to the time the permit was granted, as provided in subsection (1), plus the amounts paid out for additional flowage rights, if any, acquired after the valuation made by the commission as provided in subsection (1); and that the applicant waives all right to any further compensation.'

Plaintiffs in error petitioned the commission for permits to maintain and repair their dam, which, they asserted, 'does not materially obstruct navigation or violate other public or private rights or endanger life, health or property.' The application was rejected by the commission solely for want of jurisdiction, since the applicants had omitted to file the proposals required by section 31.09. Plaintiffs brought suit in the nature of a mandamus proceeding on the circuit court of Dane county, Wis., to compel the commission to take jurisdiction of the application and to proceed to a hearing. The bill drew in question the validity of section 31.09 under the due process clause of the Fourteenth Amendment, alleging that the determination of the commission acting under the statute operated to deprive plaintiffs of their property without due process of law. The commission answered, admitting the allegations of fact of the bill, setting up that plaintiffs' dam had been constructed and was maintained without a permit from the state, and that the application had been dismissed for want of jurisdiction. The trial court gave final judgment on the pleadings for defendant in error, upholding the validity of this act. The Supreme Court of Wisconsin affirmed by an evenly divided court. 189 Wis. 626, 208 N. W. 266. The case is here on writ of error. Judicial Code, § 237(a), as amended (Comp. St. § 1214).

The right set up in the bill is one under the federal Constitution. Whether the state court denied that right or failed to give it due recognition is a question upon which the plaintiffs are entitled to invoke the judgment

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of this court. Our jurisdiction is not affected because the existence of the right for which constitutional protection is claimed depends upon state law. Cf. West Chicago R. R. v. Chicago, 201 U. S. 506, 26 S. Ct. 518, 50 L. Ed. 845; Ward v. Love County, 253 U. S. 17, 22, 40 S. Ct. 419, 64 L. Ed. 751; Chicago, Burlington & Quincy Ry. v. Illinois, 200 U. S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; Appleby v. City of New York, 271 U. S. 364, 380, 46 S. Ct. 569, 70 L. Ed. 992.

Plaintiffs' case rests on the contention that by the law of Wisconsin the rights vested in riparian owners include the right to use the...

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41 practice notes
  • Parks v. Watson, Nos. 80-3416
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 22, 1983
    ...Appalachian Electric Power Co., 311 U.S. 377, 426-27, 61 S.Ct. 291, 308, 85 L.Ed. 243 (1940); Fox River Paper Co. v. Railroad Commission, 274 U.S. 651, 47 S.Ct. 669, 71 L.Ed. 1279 (1927); Portland General Electric Co. v. Federal Power Commission, 328 F.2d 165, 169 n. 6 (9th "Subdivisio......
  • Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, No. 1
    • United States
    • United States Supreme Court
    • February 10, 1941
    ...power over state practice, provided such practice is not used to evade constitutional guarantees. See Fox River Co. v. R.R. Comm., 274 U.S. 651, 655, 47 S.Ct. 669, 670, 71 L.Ed. 1279; Long Sault Development Co. v. Call, 242 U.S. 272, 277, 37 S.Ct. 79, 81, 61 L.Ed. 294. We are here concerned......
  • United States v. Appalachian Electric Power Co, No. 12
    • United States
    • United States Supreme Court
    • December 16, 1940
    ...13 S.Ct. 622, 626, 37 L.Ed. 463. 90 United States v. Chandler-Dunbar Co., 229 U.S. 53, 66, 76, 33 S.Ct. 667, 673, 677, 57 L.Ed. 1063. 91 274 U.S. 651, 47 S.Ct. 669, 671, 71 L.Ed. 1279. 92 274 U.S. 656, 47 S.Ct. 671, 71 L.Ed. 1279. 93 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56......
  • Hitchings v. Del Rio Woods Recreation & Park Dist.
    • United States
    • California Court of Appeals
    • February 23, 1976
    ...for purposes of public use of waters, the state may adopt different and less stringent tests of navigability. (Fox River Co. v. R.R Comm., 274 U.S. 651, 655, 47 S.Ct. 669, 71 L.Ed. 1279; Brewer Oil Co. v. United States, 260 U.S. 77, 89, 43 S.Ct. 60, 67 L.Ed. 140; Wear v. Kansas, 245 U.S. 15......
  • Request a trial to view additional results
41 cases
  • Parks v. Watson, Nos. 80-3416
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 22, 1983
    ...Appalachian Electric Power Co., 311 U.S. 377, 426-27, 61 S.Ct. 291, 308, 85 L.Ed. 243 (1940); Fox River Paper Co. v. Railroad Commission, 274 U.S. 651, 47 S.Ct. 669, 71 L.Ed. 1279 (1927); Portland General Electric Co. v. Federal Power Commission, 328 F.2d 165, 169 n. 6 (9th "Subdivisio......
  • Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, No. 1
    • United States
    • United States Supreme Court
    • February 10, 1941
    ...power over state practice, provided such practice is not used to evade constitutional guarantees. See Fox River Co. v. R.R. Comm., 274 U.S. 651, 655, 47 S.Ct. 669, 670, 71 L.Ed. 1279; Long Sault Development Co. v. Call, 242 U.S. 272, 277, 37 S.Ct. 79, 81, 61 L.Ed. 294. We are here concerned......
  • United States v. Appalachian Electric Power Co, No. 12
    • United States
    • United States Supreme Court
    • December 16, 1940
    ...13 S.Ct. 622, 626, 37 L.Ed. 463. 90 United States v. Chandler-Dunbar Co., 229 U.S. 53, 66, 76, 33 S.Ct. 667, 673, 677, 57 L.Ed. 1063. 91 274 U.S. 651, 47 S.Ct. 669, 671, 71 L.Ed. 1279. 92 274 U.S. 656, 47 S.Ct. 671, 71 L.Ed. 1279. 93 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56......
  • Hitchings v. Del Rio Woods Recreation & Park Dist.
    • United States
    • California Court of Appeals
    • February 23, 1976
    ...for purposes of public use of waters, the state may adopt different and less stringent tests of navigability. (Fox River Co. v. R.R Comm., 274 U.S. 651, 655, 47 S.Ct. 669, 71 L.Ed. 1279; Brewer Oil Co. v. United States, 260 U.S. 77, 89, 43 S.Ct. 60, 67 L.Ed. 140; Wear v. Kansas, 245 U.S. 15......
  • Request a trial to view additional results

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