Green Bay & M. Canal Co. v. Kaukauna Water-Power Co.

• Decision Date: 05 February 1895
• Court: Wisconsin Supreme Court
• Parties: GREEN BAY & M. CANAL CO. v. KAUKAUNA WATER-POWER CO. ET AL.

90 Wis. 370

61 N.W. 1121

GREEN BAY & M. CANAL CO.

v.KAUKAUNA WATER-POWER CO. ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by the Patten Paper Company, Limited, against the Kaukauna Water-Power Company and others, to determine the flow of the Fox river in the several channels below the government dam built at the head of the rapids at Kaukauna. The Green Bay & Mississippi Canal Company filed a cross complaint, claiming exclusive right to waters entering the dam. From a judgment in favor of the cross complainant, the Patten Paper Company, Limited, and others, the Kaukauna Water-Power Company and others, and Henry Hewitt, Jr., and William P. Hewitt, respectively, appeal. Reversed.

In 1846 congress granted to the state of Wisconsin, when it should become a state, certain lands to be used in improving the navigation of the Fox and Wisconsin rivers. In 1848 the state accepted the grant, and placed the construction, maintenance, and operation of such improvement under control of a board of public works. Section 15 of the act provided: “In the construction of such improvements, the said board shall have power to enter on, to take possession of and use all lands, waters and materials, the appropriation of which for the use of such works of improvement shall in their judgment be necessary.” This board of public works entered upon the work of improving the navigation of those streams. In 1853 the legislature incorporated the Fox & Wisconsin Improvement Company, and granted to it all the works of improvement, land, and property of the state connected therewith, on condition that it should prosecute the work of improvement with vigor. The property owned by the state and granted to the improvement company consisted in an easement in the lands occupied by the canal, dams, and ponds, and the water powers incidentally created by the dams. The water powers which the state owned and transferred to the improvement company were such as the state owned by virtue of section 16 of the act of 1848, which provided: “Whenever a water power shall be created by reason of any dam or other improvement made on any of said rivers, such water power shall belong to the state.” The state did not take or own real estate below its dams, except what was taken for and occupied by the canal. In 1866 all the title and interests of the improvement company in all the works of improvement, lands, and property, including the water powers created by the improvements, were sold under a judgment of foreclosure and sale under a deed of trust executed by the improvement company. The purchasers became incorporated as the Green Bay & Mississippi Canal Company, which became the owner of all the property and improvements which had been owned by the improvement company. In September, 1872, the Green Bay & Mississippi Canal Company conveyed its canal and works of improvement to the United States, reserving to itself all its water powers, in the following language: “The water powers created by the dams and the use of the surplus waters, not required for purposes of navigation, * * * and lots necessary to the enjoyment of the same.” In this manner the Green Bay & Mississippi Canal Company has derived whatever title and rights it has in the water powers created by the improvements and in the water of the streams. The Green Bay & Mississippi Canal Company, and its said predecessors in title, made many and expensive works of improvement for the purpose of facilitating the navigation of the Fox river, such as dams, canals, and locks. The Fox river is a navigable stream, which has an ordinary flow of about 300,000 cubic feet a minute, and, in low water, a flow of 150,000 cubic feet a minute. At Kaukauna there was a rapids which had a descent of about 42 feet, from the head of the rapids to slack water below, a distance of about one mile and a half. The flow of 150,000 cubic feet a minute of the water down this rapids affords a power equal to 300 horse power per foot of fall. This is substantially equal to 12,600 horse power on the whole rapids. Between the years 1851 and 1856 a public dam was built under the act of 1848, at Kaukauna, at the head of the rapids, for the purpose of creating slack water above, and feeding a canal around, the rapids. This dam created about a 9-foot head, equal to about 2,700 horse power of water. A navigable canal was constructed from the pond made by this dam to slack water below the rapids. One thousand cubic feet of water a minute is required for the use of the canal, for the purposes of navigation, during the season of navigation. This is less than 1 per cent. of the natural flow of the stream. The rest constitutes the surplus water power which is created by the dam. The river, between the dam and slack water below, is rapids, and has never been navigable. It is divided by islands into three principal channels, known as the north, middle, and south channels. All these islands were surveyed and sold as separate parcels of land by the United States. Island No. 4 is about 700 feet below the dam, and is about 135 rods long. Island No. 3 is about 70 rods below the head of island No. 4. The water in the river below the dam, by nature, flowed 95/200 in the north channel, 62/200 in the middle channel, and 43/200 in the south channel. The natural ordinary flow of the water down the rapids affords 300 horse power per foot of fall. This is substantially 2,700 horse power at the dam, and 12,600 horse power below the dam. The crest of the government dam is lower than the walls of the canal; so that so much of the flow of the stream as is not used for navigation must pass over the dam, and down the channel of the stream, over the rapids, and past the lower riparian proprietors, unless it is diverted for purposes other than the uses of navigation. The canal takes its water from the pond immediately above the dam, at the north bank of the stream. Its course for some distance is nearly along the north bank of the stream. From the intake of the canal to the first lock (a distance of more than 1,100 feet) the waters of the canal are on the same level as the waters in the pond. There was at one time a guard lock at the point where the canal meets the pond, to protect the banks of the canal in times of freshet. This guard lock is no longer used, and is out of repair. The Green Bay & Mississippi Canal Company has cut the south bank of the canal between the dam and the first lock, in several different places, in order to make water power for its own mills, and to be leased to others. For this purpose it diverts through the canal and through its sluiceways, through the bank of the canal, a large part of the natural flow of the water of the stream, and discharges it again below the heads of islands Nos. 4 and 3; so that a considerable part of the natural flow of the stream is wholly diverted from the south and middle channels. This diversion of the water of the stream works great detriment to the riparian owners of water powers below the government dam, and, by accelerating the current, impairs navigation. The action was brought originally by the Patten Paper Company, Limited, 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. But, in the course of the litigation, the issues have been changed and enlarged; so that now the principal question involved is the right of the Green Bay & Mississippi Canal Company to divert the water of the stream for water power, by means of the canal and its sluiceways, from the riparian proprietors of water powers below the dam. All the parties to the action, except the Green Bay & Mississippi Canal Company, are...