In re Eldred

• Decision Date: 22 April 1879
• Citation: 1 N.W. 175,46 Wis. 530
• Parties: IN RE F. S. ELDRED. IN RE OLIVER B. FORD
• Court: Wisconsin Supreme Court

1 N.W. 175

46 Wis. 530

IN RE F. S. ELDRED. IN RE OLIVER B. FORD

Supreme Court of Wisconsin

April 22, 1879

CERTIORARI to the Judge of the Circuit Court for Rock County.

On the 20th of December, 1878, George C. Smith made a complaint in writing, under oath, before H. A. Porter, Esq., a justice of the peace in and for Jefferson county in this state alleging, in substance, that Judd M. Cobb, F. S. Eldred Oliver B. Ford, and others named, did, on the 1st of September, 1878, and on divers other days before and since in said county, unlawfully keep and maintain, and were still so unlawfully keeping and maintaining, a certain dam upon a part of section 21, town 4 north, range 12 east, in Rock county, Wisconsin, and across Rock river, which flows through Jefferson and thence into Rock county. The complaint then contains allegations, showing that Rock river is navigable in law and in fact; describes the dam so maintained by defendants; and avers that they unlawfully maintain it more than six feet, to wit, seven feet, above the ordinary height of water in said river, ^[1] and that it is without any slide or chute for the passage of rafts or the ascent and descent of fish in the stream, and also without any lock. It is then alleged that, by reason of said dam, the waters of said river had been, ever since said September 1, 1878, set back in said stream, and into Lake Koshkonong, a shallow lake in Jefferson county, through which Rock river flows, and over the banks of said river and lake, and over the surface of large tracts of land in said Jefferson county adjoining said lake and river and over certain highways and common roads in said county, so as to prevent the use of said roads by the people of the state; and that the vegetable and animal matters brought down the channel of said river by the natural flow of its waters, were lodged in the channel of said river and the bed of said lake, so as to become offensive and nauseous, and the waters in said county became stagnant and corrupt, and the lands therein overflowed and marshy, and filled with noxious weeds and decayed vegetable and animal matter, to the great damage and common nuisance of all citizens of the state residing in the neighborhood, or passing along said public roads. It is further alleged that, by the maintenance of said dam, defendants were unlawfully flowing a large quantity of land in said county without the consent of the owners; and that they were unlawfully raising the water of the river, to the injury of certain upper mills prior in right. It is also alleged that the placing of a dam across said river on said section 21, not raised more than six feet above the ordinary height of water in said stream, and high enough to make the water useful in propelling machinery, or to make the right to use it salable, would necessarily flow lands adjoining said lake. The complaint therefore prayed that said defendants might be arrested and dealt with according to law.

Upon this complaint, Justice Porter issued a warrant to the sheriff of Jefferson county, commanding him to arrest said defendants, and bring them before him, etc. Having been arrested on such warrant, the defendants Eldred and Ford sued out writs of habeas corpus from Judge Conger, judge of the circuit court for Rock county. In their petitions they alleged, among other things, that the dam in question was situate in Rock county, more than two miles distant from any portion of Jefferson county; and also that its erection and maintenance were authorized by law. The sheriff having made return to the writ in each case, setting forth the complaint and warrant of arrest, the petitioners filed answers traversing the complaint; and the sheriff demurred thereto. Considerable evidence was taken upon the hearing, which need not be stated here.

After hearing counsel for the parties, Judge Conger made an order in each case, reciting that it appeared that the petitioner was legally in custody of the sheriff of Jefferson county and not entitled to his discharge, and remanding him to such custody. Afterwards, on the 4th of February, 1879, a writ of certiorari was issued out of this court in each case, to bring up the proceedings had therein before Judge Conger; and his return thereto set forth in full the facts and proceedings above mentioned.

Judgment reversed and reversed.

Wm. Ruger, for the relators, contended that the circuit judge erred in holding that he could only consider the question of the jurisdiction of the justice, and in disregarding for that reason material allegations of the relators' answers, which were admitted by the demurrer. In support of this view, counsel examined secs. 3407-8, 3425-9, and 3448, R. S., and contended that under them the relators were entitled to deny any of the material facts set forth in the officer's return, and allege any fact to show that there was no legal cause for their imprisonment; and that it was the duty of the circuit judge to hear the proofs upon the issues thus raised, and to discharge the relators if no legal cause for their imprisonment was shown. Counsel conceded that secs. 3427-9 limit the inquiry on habeas corpus to jurisdictional questions in the great majority of cases; and that in this case, if an examination had been had before the justice, and a commitment issued, upon which the petitioners were restrained, sec. 3429 would probably have thus limited the inquiry; but that in the absence of any such examination the statutory rule was otherwise. See People v. Martin, 1 Parker, 187, and cases there cited; People v. Tompkins, id., 224; People v. Richardson, 4 id., 656. Counsel further contended, 1. That it did not appear that the relators were guilty of any offense. In support of this view he argued that the only offense against the public charged was the unauthorized maintenance of a dam in a navigable stream; that if the dam in question is authorized by law, the relators cannot be guilty of an offense against the public in maintaining it, whatever injury may result from it (Stoughton v. The State, 5 Wis. 291; 34 Barb., 494; 6 Ind., 165; Wood on Nuisances, § 746); and that the averments of the answer, and the statutes therein relied upon, show authority to maintain the dam. In this connection counsel also argued that the petitioners were merely charged with maintaining, since a certain date, a nuisance theretofore created; and that in such a case it was necessary to allege and prove notice to them of that which constituted the nuisance. Wood on Nuis., §§ 77, 850; Angell on W. C., §§ 402-3; Addison on Torts, 242. 2. That this was a common-law prosecution, prohibited by statute. R. S., §§ 1598, 1607, 4634. 3. That the offense, if any, was committed in Rock county, and therefore the arrest and restraint, under a warrant issued by a justice of Jefferson county, were illegal. In support of this view, he contended that the nuisance, if any, was the dam itself, and the offense, if any, consisted in the maintenance of the dam (4 Black. Com., 167; Bac. Ab., "VESNE OR VENUE (D)" and "NUISANCE;" 2 Colby's Cr. Law, 72-3; Whart. Cr. Law, §§ 2362, 2418-20; 1 Russ. on Crimes, 318; Washb. Man. of Cr. Law, 85; 3 Greenl. Ev., § 184; 1 Bish. Cr. Law, §§ 392, 557, 560; 2 id., § 848; 1 Bish. Crim. Pro., §§ 51, 57; Wood on Nuis., §§ 21, 23, 599, 602, 607, 617, 771; Queen v. Cotton, 102 E. C. L., 202; M. & M. Railroad Co. v. Ward, 2 Black, 485; State v. Babcock, 1 Vroom, 29; State v. Graham, 15 Rich., 310; Wertz v. The State, 42 Ind., 161); and that the indirect effects of the dam, at places remote from it, if they could be considered at all in such a prosecution, could be considered only as evidence that the dam was in fact a nuisance. Two classes of cases are relied on as supporting the position that the ill effect of the unlawful act constitutes the offense or an element of it, and hence, that the locality of any such effect locates the offense or an element of it. In the case of murder it was anciently considered that the infliction of the wound and the resulting death were both elements of the offense. When, therefore, the wound and death occurred in different counties, under the rule that the criminal must be tried where the offense was committed, the murderer could not, at common law, be tried in either county. This rule, however, was soon modified, so that death was not considered an element of the crime, but merely evidence that the wound given was of such a character as to constitute the crime. Chitty's Crim. Law, 177-8; Bish. Crim. Pro., § 51, and notes 4, 6, and §§ 52, 54. It is by force of statutes only that the criminal may now be tried in the county where the death occurs. Bish. Crim. Pro., § 52, 57. In the cases of sending threatening letters from one place to another, and sending a libel from one place and publishing it in another (which are now by statute punishable in either place), the offense consists of one continuing act, begun in one place and completed in another. The rule that offenses are triable where committed is affirmed by our constitution and statutes. Const., art. I, sec. 7; R. S., sec. 4679; and see 1 Bish. Cr. Pro., § 52. Under this rule, an offense must be complete in one jurisdiction, or it cannot be tried anywhere; and if an exception to this rule were to be made, such an offense should, on principle, be tried in the place of the act, rather than that of the effects, the former place being fixed and certain, and the latter variable. In criminal actions, the cause of action consists wholly in the culpable cause, and effects are material as evidence only, unless made material by statute.

For the respondent, there was a brief by I. W. & G. W. Bird, and oral argument by G. W. Bird. They contended, 1. That on habeas corpus only jurisdictional defects can be...