Green Bay & Miss. Canal Co. v. Telulah Paper Co.

• Decision Date: 26 October 1909
• Citation: 140 Wis. 417,122 N.W. 1062
• Parties: GREEN BAY & MISSISSIPPI CANAL CO. v. TELULAH PAPER CO. ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 417

122 N.W. 1062

GREEN BAY & MISSISSIPPI CANAL CO.

v.TELULAH PAPER CO. ET AL.

Supreme Court of Wisconsin.

Oct. 26, 1909.

Appeal from Circuit Court; Outagamie County; Chester A. Fowler, Judge.

Action by the Green Bay & Mississippi Canal Company against the Telulah Paper Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.Quarles, Spence & Quarles (Geo. Lines, of counsel), for appellant.

Hooper & Hooper, for respondents.

WINSLOW, C. J.

In February, 1892, the plaintiff corporation, which is the owner of the surplus water power not needed for navigation purposes created by the Grand Chute or government dam in the Fox river at Appleton, brought this action in equity against the defendants, who own the dam immediately below the plaintiff's dam, and known as the Middle dam at Appleton, and the water power created thereby, to restrain the defendants from maintaining said middle dam at its present height, claiming that the same unlawfully sets back the water of the river, and flows the plaintiff's lands and water wheels to the depth of 30 inches. The trial court found that there had been, prior to the commencement of this action 10 years' uninterrupted and adverse user by the defendants of the said middle dam at the height at which it was maintained at the time of the commencement of this action, and thereupon dismissed the complaint, holding that the action was barred by subdivision 3, § 4221, St. 1898, or if not barred by this subdivision, then by subdivision 4 of the same section. The plaintiff first contends that subdivision 3, above mentioned, is not applicable (a) because said section only applies to milldams across nonnavigable streams, and the Fox river is in law a navigable stream; (b) because the said middle dam is not a milldam in the usual and ordinary sense; (c) because this is not an action to recover damages; and (d) because no flowing of lands is involved. We will take up these propositions in the order indicated.

1. The subdivision named places, among the actions which must be brought within 10 years after the cause of action accrues, “An action for the recovery of damages for flowing lands, when such lands have been flowed by reason of the construction or maintenance of any milldam.” This section first appeared upon our statute books in 1862 as chapter 184, p. 105, of the laws of that year, where it read as follows: “No action for the recovery of damages for the flowing of lands shall be maintained in any court in this state, when it shall appear that said lands have been flowed by reason of the construction or erection of any milldam for the ten years next preceding the commencement of such action, provided, any party shall have one year from and after the passage of this act in which to commence an action for the recovery of any lands, tenements, and hereditaments heretofore flowed, or for the recovery of the possession thereof or for damages to the same.” The argument is that when this act was passed the word “milldam” had acquired a technical and special meaning in our law by reason of the existence of chapter 56, Rev. St. 1858, entitled “Of mills and milldams” (now chapter 146, St. 1898), and that this special meaning was, and is, confined to dams authorized by said chapter to wit, across nonnavigable streams, and that the subsequent re-enactment of the section in substantially the same words in the Revisions of 1878 and 1898 as subdivision 3, § 4221, in no way changes the original special meaning. Doubtless the result would follow, if the major premise were correct. Rev. St. 1878, § 4985; St. 1898, § 4985. But we see nothing to indicate that the Legislature in passing chapter 184 of the Laws of 1862 intended to confine the provisions of the act to milldams erected under the provisions of chapter 56 across nonnavigable streams; on the contrary, the argument seems to be the other way.

The act is general in its terms, and purports to bar an action after 10 years' flowage by “any milldam.” A dam which is built across a navigable stream for the purpose of creating water power to operate a mill is just as certainly a milldam as one built across a nonnavigable stream. So by its language the act covers one as well as the other. Courts certainly should not be industrious in seeking out obscure or unusual meanings to attach to statutory expressions, when the words used are plain and unambiguous, and the ordinary meaning is entirely reasonable. Now had the Legislature desired and intended to confine the act to dams erected and maintained under the milldam law (i. e., dams across nonnavigable streams), the most obvious and natural thing would be to say so in direct language, and add the section to chapter 56 of the Revised Statutes of 1858, thus completing the special code governing the erection and maintenance of this class of milldams. This seems the more certain when it is remembered that there were many milldams in the state across navigable streams which had been erected under special legislative acts, and also that the milldam law, while first enacted in 1840, was repealed in 1850 and not re-enacted until 1857. During this interregnum the session laws fairly teem with special acts authorizing the erection of milldams, none of which of course were milldams in the technical and special sense claimed by the respondent here. It seems probable that at the time this act was passed there were full as many dams in the state which had been built outside of the provisions of the milldam law as under it. Undoubtedly the Legislature knew this fact, and, so knowing, passed a law applying generally to any milldam “in the state.” Upon principle it would seem that under these circumstances this law, framed in unambiguous, general words, must have an interpretation just as broad and general as the words used commonly receive. Furthermore, the question seems to have been decided adversely to appellant in the case of Ruehl v. Voight, 28 Wis. 153, where the owners of a dam on Rock river, erected by virtue of a special act of the territorial Legislature of 1845, pleaded this statute, and upon this exact point the court said: “The language of the statute is clear, precise, and comprehensive, and bars every action where the lands have been flowed for 10 years without any claim for damages. The statute means this, or it has no meaning whatever.” It is true that in that case the act authorizing the dam made it subject to the provisions of the milldam law then existing, but the decision was not placed on this ground, but on the broad ground that the language covered “any milldam” or none. In Cobb v. Smith, 38 Wis. 21, which was an action of flowage caused by a dam erected on a navigable stream under express legislative grant, this statute of limitations was pleaded; and, while it was held that the pleading showed that the use had not been adverse, still the court treated the statute as applicable to such a dam had the facts been sufficient.

2. The claim that the middle dam is not a milldam within the meaning of the word as used in the statute is based on the fact that it was built by the defendant the Appleton Water Power Company, a corporation organized for the purpose of constructing this dam “and for improving and creating water power and river lots in and near said...