Hackstack v. Keshena Imp. Co.

• Decision Date: 21 September 1886
• Citation: 66 Wis. 439,29 N.W. 240
• Parties: HACKSTACK v. KESHENA IMP. CO.
• Court: Wisconsin Supreme Court

66 Wis. 439

29 N.W. 240

HACKSTACK

v.KESHENA IMP. CO.

Supreme Court of Wisconsin.

September 21, 1886.

Appeal from circuit court, Outagamie county.Collins & Blackwell, for respondent, Frank Hackstack.

Jackson & Thompson, for appellant, Keshena Imp. Co.

ORTON, J.

The material facts stated in the complaint are as follows: The defendant, as a corporation, for more than six years was the proprietor or manager of certain dams across the Wolf river and its tributaries at a point many miles above the land and farm of the plaintiff on said river, and by means of said dams the waters of said river and tributaries were caused to accumulate in large reservoirs and ponds. In the spring and early summer of each year the defendant caused the waters so retained to be discharged into the river below, for the purpose of raising the same for the purpose of floating down the same logs, timber, and lumber, which raised the waters of said river to an unnatural and unusual height, and caused the same to flow the land and farm of the plaintiff, and to overflow the banks of the river at and near the same, which destroyed his crops and timber, and damaged his land so that it became thereby useless and worthless for farming purposes and occupancy, and the plaintiff was thereby compelled to abandon it for such purposes. These consequences would not have followed if the river had been allowed to flow in its natural and usual stage, unaffected by such occasional discharge of the waters of said river from said dams for the purpose of floating down the same logs, timber, and lumber. Damages are demanded for such injury.

The defendant demurred to the complaint for several reasons, but relies only on the main reason that the complaint does not state a cause of action against the defendant, and the demurrer was overruled, and the defendant has appealed to this court from said order.

It will be observed that the defendant is charged as a corporation. In order, therefore, to determine its right or authority to so flow the land of the plaintiff, and its exemption from an action of this kind, it will be necessary to refer to its charter. This will be found in P. & L. Laws 1866, c. 352. The power of this corporation to improve the Wolf river is conferred by section 2 of that act, which reads as follows: “The said Keshena Improvement Company shall have power to improve the head-waters of Wolf river, from the south line of township twenty-nine north, of range fifteen east, in Shawano county, Wisconsin, to the north line of township thirty-one north, of range fourteen east, in Oconto county, Wisconsin, by deepening the channel, blasting rocks, closing up side-cuts, building dams and wing-dams and side-booms, and such other means as shall be necessary to the end proposed, so that loose saw-logs may be run the whole distance from one of said points to the other in said waters during the ordinary spring freshets.” The act further provides “that the company shall be subject to the provisions of the mill-dam law relative to damages on account of overflowing lands in making said improvements.” From the description of the lands of the plaintiff charged with having been overflowed by means of the defendant's dam at the lowest point of said improvements, the said lands are over 20 miles below that point on the river.

1. It would seem to be perfectly plain from the above language of the defendant's charter that the company had no right to flow any lands below that point. The works are all to be above that point, and there is provision made for flowing lands above that point by means of said improvement, and for compensation for such flowing, under the mill-dam law. This remedy was no doubt intended by the legislature to apply to all flowing of the lands of others, occasioned by the works of the company. It is contended by the learned counsel of the appellant that, although the flowing of lands and making any improvement below the dam are not expressly authorized by the terms of the charter, yet, the dams at that point were constructed to detain the water so...