Green Bay & M. C. Co. v. Kaukauna Water Power Co.

• Decision Date: 20 June 1895
• Citation: 90 Wis. 370,63 N.W. 1019
• Parties: GREEN BAY & M. C. CO. v. KAUKAUNA WATER POWER CO. ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 370

63 N.W. 1019

GREEN BAY & M. C. CO.

v.KAUKAUNA WATER POWER CO. ET AL.

Supreme Court of Wisconsin.

June 20, 1895.

On motion for rehearing. Motion denied.

For former opinion, see 61 N. W. 1121.

NEWMAN, J.

This action was originally commenced by the Patten Paper Company, limited, one of the appellants, to obtain an adjudication of the relative proportions of the flow of the river, below the dam, in the several channels, and to enjoin the Kaukauna Water Power Company from diverting any water to the south channel, which, of right, should flow in the middle channel. An adjudication of these relative rights is included in the judgment of the trial court, and all parties are, by it, enjoined from interfering with the flow of the water in the several channels in the proportions adjudged to be the due of each channel. There is no appeal from this part of the judgment; so no consideration of it by this court is due or proper. But in the course of the litigation a new issue was introduced by the Green Bay & Mississippi Canal Company. It claimed that, by its purchase from the state of the canal and improvements, and the water powers which were created by the improvements, it became the absolute owner of the water of the stream, with the right, as against the owners of water powers on the rapids, below the Kaukauna dam, to divert all the water of the stream, and to use it wherever it best suited its interests, and to return it to the stream wherever it chose, regardless of its effect upon the water powers and rights of such lower owners. This claim the trial court sustained, to its full extent. It gave judgment sustaining it, and enjoined all the other parties to the action from interfering with the complete exercise of the rights so claimed. From this part of the judgment these appeals were taken. The right of this contention of the Green Bay & Mississippi Canal Company was the only question presented by these appeals. This court held that the Green Bay & Mississippi Canal Company owned all the water power which was created by the construction and operation of the government dam at Kaukauna; that it had the right to use all the water of the stream, not used for the purposes of navigation, for the purposes of power, wherever it could or chose, so far as it could do so without impairing the just rights of other owners of water powers upon the stream; that it was due to other owners of water powers below the dam that the water, after...