Kimberly & Clark Co. v. Hewitt

• Decision Date: 17 March 1891
• Citation: 79 Wis. 334,48 N.W. 373
• Parties: KIMBERLY & CLARK CO. v. HEWITT ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 334

48 N.W. 373

KIMBERLY & CLARK CO.

v.HEWITT ET AL.

Supreme Court of Wisconsin.

March 17, 1891.

Appeal from circuit court, Outagamie county.

This case was here on a former appeal from an order overruling a general demurrer to the complaint, and the order was affirmed. 75 Wis. 371, 44 N. W. Rep. 303. It is sufficient to refer to the report of the case on that appeal for a statement of the nature and objects of the action as disclosed in the complaint. It need only be stated here that the controversy relates to the right claimed by defendants to divert one-half the water running in Fox river into a channel to be excavated on their own land abutting the river, above land of the plaintiff, also abutting the river, and to discharge such water into the river below plaintiff's land. It also relates to the ownership of certain surplus waterpower created by a dam across Fox river, erected on the same land of plaintiff, by authority of the state, for the purpose of improving the navigation of the river. The Green Bay & Mississippi Canal Company is the immediate grantor of plaintiff of the lands on opposite sides of the river on which the two ends of the dam rest; and of all the hydraulic power created by the dam, subject to navigation. The history of the legislation concerning the improvement of Fox river, and the grounds upon which the canal company claim to own all the surplus water-power created by the improvement, are fully stated in the case of Green Bay & M. Canal Co. v. Kaukauna Water-Power Co., 70 Wis. 635, 35 N. W. Rep. 529, 36 N. W. Rep. 828, and do not require repetition here. The circuit court found, among other things, that the defendants claimed the right, and threatened, to divert the waters of the river as above stated. The findings are very full, and quite lengthy, and it is unnecessary to repeat them. They include the facts above stated, as well as those referred to in the case in 70 Wis. 635, 35 N. W. Rep. 529, and 36 N. W. Rep. 828. Judgment for plaintiff was ordered and duly entered, restraining the defendants from diverting any of the water from the pond created by the dam, or from interfering therewith in any manner to the injury of plaintiff. The defendants appeal from the judgment.D. S. Ordway and S. U. Pinney, for appellants.

Hooper & Hooper, for respondent.

LYON, J., ( after stating the facts as above.)

Under the judgment of this court on the former appeal it is res adjudicata in this case that, if the defendants have not the lawful right to divert the waters of Fox river (or, rather, one-half thereof) from the natural channel of the river to their own land, and to discharge the same into the river below the plaintiff's land, and if they threaten to do so, the plaintiff is entitled to the injunction which it has obtained. It is proved that they threaten such diversion of the water. For either of two reasons which will now be stated we think the defendants have no such right, and hence the judgment should be affirmed.

I. The...