Kimberly-Clark Co. v. Patten Paper Co.
| Decision Date | 08 April 1913 |
| Citation | 140 N.W. 1066,153 Wis. 69 |
| Parties | KIMBERLY-CLARK CO. v. PATTEN PAPER CO., LIMITED. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.
Action by the Kimberly-Clark Company against the Patten Paper Company, Limited. From a judgment fixing the water rights of the respective parties, both plaintiff and defendant prosecute cross-appeals. Affirmed.
This suit was commenced November 10, 1903, for the purposes: (1) Of determining what volume of water the defendant is entitled to draw from that millpond which furnishes the so-called “West Water Power”; (2) restraining the defendant from withdrawing from said millpond more than the volume of water so determined; (3) restraining the defendant from drawing from said millpond upon lot 9 of Grand Chute Island in the Fourth ward of the city of Appleton, as per John Steven's map of 1879, more water than sufficient to furnish 700 horse power; (4) for damages for past excessive use of water. The defendant interposed: (1) A plea in abatement for defect of parties; (2) a plea of the ten-year statute of limitations; (3) an answer to the merits; (4) a counterclaim calling for the ascertainment and determination of the water power which plaintiff and defendant own under their respective grants, and the volume of water each is entitled to draw from said millpond according to priority of grant and the places at which they may draw it; (5) restraining plaintiff from using more water or power than the amount so determined; (6) at any other place than the place so ascertained or determined; (7) also seeking an award of damages to the defendant for plaintiff's excessive and wrongful use of water. Plaintiff, by reply to this counterclaim, interposed defensive matter, but did not plead any statute of limitations. This counterclaim avers a grant of August 27, 1864, by West to Woodward, and that under this and other grants the defendant is entitled to water sufficient to produce at least 675 horse power, making at least 450 horse power under the Woodward grant, and that for six years next prior to the commencement of the action the plaintiff has, by its excessive use of water under other grants, interfered with and impaired defendant's rights under such grants.
Findings of fact well supported establish that Grand Chute Island divides the Fox river at Appleton into the north and south channels. About 1857 Edward West, owning said island and the south shore of said south channel, built a bulkhead across the south channel from the head of said island and a wing dam from such head into said north channel, and these structures made the West Water Power. In 1870 West made a canal for power from the pond made by said bulkhead and wing dam, extending about 1,600 feet in the general direction of the river flow through said island nearly to its lower end. In 1876 the wing dam was replaced by a solid dam from the head of said island to the north shore of the river, and the said bulkhead was rebuilt higher, whereby, and by flashboards permanently maintained on said dam, the head of said power was increased 2.4 feet. The improvement of 1876, which so increased the head, was made by a company and paid for by subscriptions given by the public for the public benefit. The dam was built on land, no part of which was owned by this company, although the owners of the land were members of the company and contributed to the said fund. This company never used or attempted to control any of the water power otherwise than by making a quitclaim deed relating to the West Water Power to West and his heirs and assigns, declaring that the latter and those holding the lots or water power from or under them might draw water from the pond to fill West's canal and through said bulkhead for hydraulic purposes without let or hindrance by such association.
“The average flow of Fox river at Grand Chute Island is about 150,000 cubic feet per minute, four-sevenths of which, or about 86,000cubic feet per minute, is appurtenant to said West Water Power. Said flow of the river varies from less than 20,000 cubic feet per minute in dry seasons to more than 500,000 cubic feet per minute in freshets. To furnish 137,397 cubic feet per minute required to fill all said grants prior to the grant of the remainder and furnish the volume due said north shore of the river, the whole flow of the river must be at least 240,000 cubic feet per minute. For considerably more than half the time, said flow is less than 200,000 cubic feet per minute.
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