Knoller v. Dobrath (In re Dancy Drainage Dist.)

• Decision Date: 22 June 1906
• Citation: 129 Wis. 129,108 N.W. 202
• Parties: IN RE DANCY DRAINAGE DIST. KNOLLER ET AL. v. DOBRATH ET AL.
• Court: Wisconsin Supreme Court

129 Wis. 129

108 N.W. 202

IN RE DANCY DRAINAGE DIST.KNOLLER ET AL.

v.DOBRATH ET AL.

Supreme Court of Wisconsin.

June 21, 1906.

Dissenting Opinion. June 22, 1906.

Appeal from Circuit Court, Marathon County; W. C. Silverthorn, Judge.

Proceeding for the establishment of the Dancy Drainage District, on petition of George G. Knoller and others, to which Herman Dobrath and others filed objections. A decree was entered denying a motion to confirm the report of commissioners, but refusing to dismiss the proceeding; and from so much of the order as denied confirmation of the report, the commissioners and petitioners appeal. Affirmed.

It appears from the record, and is undisputed, that the adult owners of a large portion of the premises in controversy filed their petition for the organization of the “Dancy Drainage District,” upon about 35,000 acres of land in the counties of Wood, Marathon, and Portage, constituting a large marsh through which the Little Eau Pleine river, a navigable stream rising near the boundary line between Clark and Marathon counties, runs in a southeasterly direction and empties into the Wisconsin river a short distance beyond the territory described. After due service and publication, certain residents appeared to contest the same, and by due proceedings the court found, in effect: (1) That the petition has been signed by a majority of the owners of land within said proposed district who are of lawful age, and who represent one-third in area of the lands proposed to be affected by said work, and also contains the signatures of the owners of more than one-half of said lands; (2) that the proposed drain is necessary and will be useful for the drainage of the lands proposed to be drained thereby; (3) that both the public health and the public welfare will be promoted by the construction of said drain. The court thereupon and on February 19, 1904, appointed three commissioners, one from each county, each of whom was a land owner in said district. Said commissioners duly qualified, and on July 19, 1904, duly filed their report, finding the probable cost of the work with incidental expenses to be $161,274.91, and the probable cost of keeping the drain in repair 2 per cent. thereof, and the probable benefits to be derived therefrom $500,508.81, making the cost less than one-third of such benefits. The report revises the boundaries according to the information obtained from their survey, and assessed the benefits upon the lands included, and also assessed damages to a sawmill property, whose dam would have to be removed, at $5,000, and assessed benefits to the municipalities to be benefited thereby and also benefits to the railway company, and further reported that no lands outside of the district would be damaged, and none within the district other than those specified. Upon such report due service was made of a notice of motion returnable August 20, 1904, for the confirmation thereof and organization of the district. At such date, certain persons interested filed protests against the organization of the district, assigning as grounds therefor that the petitioners did not constitute the requisite number of owners; that some signatures were obtained by misrepresentation; that the proposed work is not feasible or necessary or useful; and that the public health and welfare will not be promoted thereby. Further, that the Little Eau Pleine river, a navigable stream used to float and drive logs to the sawmill thereon, and a fresh water lake, known as Rice Lake, within the limits thereof, will be destroyed, whether the outlet chosen would be the one here proposed or any other. Three of the four towns assessed for damages protested, stating, in addition to the foregoing grounds, the claim that those municipalities would not be benefited. The St. Paul Railway Company protested, assigning the additional ground that it owns a right of way across a portion of the lands in the district with which a drainage district has no power to interfere, and that the assessment against it was also unauthorized, and asks that the boundary be so modified as not to interfere with its property and an issue be framed as to its damages. The Grand Rapids Lumber Company also protested, assigning, in addition to the foregoing grounds, that the commissioners were disqualified for the position because of interest; that the cost of the construction will exceed the benefits; that the method of assessment of the benefits is arbitrary, unjust, and unequitable.

The report of the commissioners and the objections thereto having come on to be heard on the day fixed for that purpose by the court, and the court having fixed a time and place for the hearing and trial of all issues of law and fact thereby raised, and after hearing all the evidence and arguments of counsel, the court finds as matters of fact, in effect: (1) That each of the commissioners heretofore appointed was when appointed, and still is, competent within the meanings of the statute and qualified to hold the position of commissioner. (2) That each and all of said commissioners in their acts and conduct in performing the duties af said office have acted fairly, honestly, impartially, and with good judgment and ability, and there is nothing in their conduct or that of any of them for criticism. (3) That those portions of the Little Eau Pleine river included within the boundaries of the proposed drainage district constitute a navigable stream of the state of Wisconsin. (4) That the body of water known and shown on the map annexed to the commissioners' report as “Rice Lake” is a part of said stream and coexistent with it and is a part of the permanent inland waters of the state. (5) That the drainage district contemplated by the commissioners' report will materially affect and to some extent impair the natural use of the Eau Pleine river for some purposes of navigation, to wit, the holding of logs for manufacturing purposes within its bayous and parts of the stream, the same being one of the navigable uses of the stream. While it has not been established that such system will seriously affect the mere driving of logs down the stream, it nevertheless will seriously affect the floatage of logs within its waters and the holding of them for the purposes of manufacture, and will thus directly impair the navigability of the river for some lumbering purposes. (6) The drainage system contemplated by the commissioners' report will destroy and wipe out of existence the body of water shown and designated on the map as Rice Lake, excepting only as the drainage channel through the same may still continue to exist as a part of the Little Eau Pleine river. (7) That because the proposed drainage system will thus impair the navigability of the Little Eau Pleine river and remove the waters from Rice Lake, the power to do which does not exist in the commissioners and is beyond the power of the court to grant to them, therefore such proposed drainage system cannot be made effective so as to accomplish the object sought and cannot be confirmed by the court. (8) That it was not shown with reasonably certainty that there is no other way of effecting this drainage in some manner not interfering with the rights of navigation and commerce on the Eau Pleine river and Rice Lake, and therefore the proceedings should not be dismissed, but the commissioners retained in office for consideration of the question whether the commissioners shall amend or supplement their report by stating whether some other method can be found which will result in effective drainage, and not be open to the foregoing objections to this proposed plan.

And as conclusions of law the court finds, in effect, that it results from the foregoing findings that the motion of the petitioners to confirm the report of the commissioners must be denied; that the motion of the objectors to dismiss the entire proceedings must be denied, and the motion of the objectors to dismiss and annul all acts and proceedings including and subsequent to the order appointing the commissioners must be denied; and it was therein ordered that such order be entered accordingly by the clerk. Whereupon it was “ordered that the motion of the petitioners to confirm the report of the commissioners in this proceeding be and the same is hereby denied. Further ordered that the motion of the objectors to dismiss this entire proceeding be and the same hereby is denied. Further ordered that the motion of objectors to dismiss and annul all acts and proceedings including and subsequent to the order appointing the commissioners be and the same hereby is denied.” The commissioners and the petitioners appeal to this court from that part of the order which refused to confirm the report of the commissioners.

Dodge and Winslow, JJ., dissenting.

Goggins & Brazeau and Kreutzer, Bird & Rosenberry, for appellants.

Brown, Pradt & Genrich, Park & Carpenter, G. L. Williams, and Hurley & Jones, for respondents.

CASSODAY, C. J. (after stating the facts).

The appealability of the portion of the order in question is not challenged nor mentioned in the briefs of counsel. It was suggested on the argument, but counsel for the respondents requested a decision upon the merits. Such suggestion was in consequence of the discussion in another case decided herewith. In re Horicon Drainage District, 108 N. W. 198. That was an appeal from an order appointing commissioners under section 1379-13 of the Revised Statutes of 1898, as amended by section 1, c. 43, p. 46, of the Laws of 1901, and it was held that the order was not appealable. In writing the opinion of the court in that case, my Brother KERWIN has given a synopsis of several sections of the statutes for organizing drainage districts, as amended, and pointedout that the only authority therein given to appeal to this court is found in section 1379-18 as amended by section 2, c. 43, p. 47, of the Laws of 1901. That section relates to...