Koenig v. City of Watertown

• Decision Date: 07 November 1899
• Parties: KOENIG ET AL. v. CITY OF WATERTOWN.
• Court: Wisconsin Supreme Court

104 Wis. 409

80 N.W. 728

KOENIG ET AL.

v.CITY OF WATERTOWN.

Supreme Court of Wisconsin.

Nov. 7, 1899.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Rudolph P. and George Koenig against the city of Watertown to restrain defendant from carrying out a resolution passed by its common council. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.R. B. & I. B. Kirkland, for appellants.

Harlow Pease, for respondent.

CASSODAY, C. J.

This is an appeal from an order sustaining a demurrer to the complaint in an action to restrain the defendant from carrying out the resolution of the defendant, and filling in the mill race from defendant's southerly end of the north line of Milwaukee street, or any part thereof, and which complaint alleges, in effect: That at the time of the commencement of this action, and for more than 40 years next prior thereto, there was a dam across Rock river at the place described, and a water power created thereby, and the same was then within the limits of the defendant city, and also a mill race and flume connected with and appurtenant to the dam, on the east side of the river, and near thereto, and which mill race and flume extended from the dam in a southerly direction for about 1,000 feet, running through what was commonly known as the “Hydraulic Reserve” and blocks 30, 39, and 40 in the First ward of the city to that part of block 40 where the brick flouring mill of the Globe Milling Company formerly stood, and which a few years before was destroyed by fire. That April 27, 1886, and for some time prior thereto and thereafter, one Frank Koenig, father of the plaintiffs, since deceased, was the sole owner in fee and lawfully possessed of the undivided one-half of the whole of the dam, and of all the water power connected therewith or appurtenant thereto at the east end and eastern half thereof, subject only to certain easements or water rights. That he was also the sole owner in fee and lawfully possessed of the whole of the mill race and flume extending from the dam down to the south line of lot 1 in block 30; also the sole owner in fee and in the lawful possession of lot 1 in block 30; and also of a piece of land 15 feet in width adjoining such lot on the north, and of the flouring mill and appurtenances thereto belonging, and then situate thereon; and also the owner in fee and lawfully possessed of all that certain piece and parcel of land commonly known as the “Hydraulic Reserve,” except a strip 150 feet wide off from the north end thereof, and which was several hundred feet above the dam, and had never been in any way connected with the dam or the water power appurtenant thereto. That April 27, 1886, and for some time prior thereto and thereafter, the Globe Milling Company was running, operating, and conducting a flouring mill situate on block 40, and was the sole owner in fee and lawfully possessed of the whole of block 40 and part of block 39, and thereafter acquired all of block 39, and was the sole owner in fee and lawfully possessed of all that part of the mill race and flume commencing at the south line of lot 1 in block 30 and extending and running in a southerly direction to that part of block 40 where the brick flouring mill of the Globe Milling Company then stood. That April 27, 1886, Frank Koenig and the Globe Milling Company, being such owners, duly entered into a written agreement under seal, witnessed, acknowledged, and recorded, to the effect that the Globe Milling Company, in consideration of $7,000, to be paid to it by Frank Koenig, thereby covenanted and agreed to convey to Frank Koenig, his heirs and assigns, 4,948.8 cubic feet of water per minute, which was by the partition judgment adjudged to Miller and Sleeper by warranty deed, subject to all charges that might thereafter accrue or should be imposed upon such water for repairs and rebuilding of the dam, and the river next about the dam on the east side of the river, and for repairing and rebuilding and maintaining the main race and flume from the dam down to the brick mill on block 40, all of which charges were therein assumed by Frank Koenig, except as otherwise provided, which water was to be drained by Frank Koenig, his heirs and assigns, at any or all the weirs and sites of water rights mentioned in such judgment as he or they might choose. That Frank Koenig, in consideration of such conveyance to him, thereafter covenanted and agreed to convey by warranty deed to the Globe Milling Company 15,000 cubic feet of water per minute, or so much thereof as would flow or pass over the weir for the mill on block 40 of the length as determined by such partition judgment, after the weir should be raised and permanently fixed and fastened to a height of 2 feet below the horizontal plane of the crest of the dam above the water, to be drained from the river above the dam through the main race and flume on the east side of the river without any interference or hindrance to the free and unobstructed flow thereof through the main race and flume to the weir on block 40, provided that none of the 15,000 cubic feet of water per minute should be drawn or used at block 40, or at the mill thereon, unless or except when the water in the river above should flow over the top of the dam at some point thereof; such conveyance and grant to be subject to one-third part of the repairs and improvements thereinafter to be made on the main race and flume from the dam down to the weir on block 40, and to the third of the repairs and rebuilding of the weir gates in the main race and flume, all of which third part of the charges and expenses were to be assumed by the Globe Milling Company. That the main race and flume from the dam to the mill on block 40, and the head gates therein, should be owned henceforth in common by the parties thereto. That each and both of the parties, their heirs, assigns, and successors, should have the right of access to the head gates, and to any and all points on the main race and flume, over and across the lands of each other and such lands over which Frank Koenig should have reserved the rights of way, such access being for the purposes only of making repairs to the main race and flume and to the head gates, and rebuilding the same, and of regulating the head gates and observing the flow of water through the main race and flume and at the mills thereon, and measuring the same. That when it should become necessary, in order to repair the head gates, the main race and flume, or any of the mills taking water therefrom, either of the parties, on 24 hours' notice to the other, and, in case of emergency, without notice, might lower the head gates so as to shut the water out of the main race and flume. That when the stage of water in the river above the dam was so high that, if allowed to flow into the race and flume below the head gates at its full height or level, it would flow over and endanger the bank between the main race and flume and the river. then in that case the head gates might be lowered so as to reduce the height or level of the water in the main race and flume below the head gates so that the bank might not be...