OPINION TEXT STARTS HERE
Appeal from circuit court, Monroe county; A. W. NEWMAN, Judge.
Action by W. E. Mack and others, executors, against Marian L. Bensley. The court found: “That on and prior to the 14th day of May, 1866, one Orestes Garrison was the owner in fee of all that part of lot 4, in section 8, township No. 22 north, of range 6 east, lying between Main street, in the city of Centralia, and the Wisconsin river. (2) That on the 14th day of May, 1866, said Orestes Garrison and his wife duly conveyed to the plaintiff R. C. Lyon the following premises, to-wit: Commencing at a point fifty links east of the west bank of the slough on the section line between sections eight (8) and seventeen, (17,) in township twenty-two (22) north, of range six (6) east, and thence west along the section line, fifty links, to the bank of the slough; thence up along the bank thereof three chains and fifty links, to a large rock; thence east two chains; thence a southerly course to the place of beginning,--containing seventy (70) rods of ground; also the right of way to use in common with said party of the first part, his heirs or assigns, as a passage-way, and for the purpose of a mill-yard and mill building, all that land lying east of Main street, and the south half of block number four (4) in the village of Centralia, and the west bank of the slough, and the right to build and maintain a dam or dams at the upper end of the island, and also to build and maintain a dam at the lowest place in said island below said described premises; also to construct and maintain a road on the west bank of said slough below said premises, and all the water-power where the old Whitney saw-mill was located, subject to the right of a free passage-way over the dam for the purpose of running lumber without hindrance or delay to said Garrison, his heirs or assigns.” (3) That plaintiffs have succeeded to the rights of Lyon, and defendant has succeeded to the rights of Garrison. “(4) That at the time of said conveyance said Garrison owned and operated a mill near the head of said slough, and along the west bank of said slough, and below said saw-mill there was a wharf or embankment built of slabs, used to pile lumber upon, and to facilitate rafting; that said slab wharf extended slightly into the natural channel of said slough, but not enough to impede the flow of water into the same. (5) That in said slough, about six rods above the section line between sections eight (8) and seventeen, (17,) there is a fall, and an opportunity to create and utilize a water-power; that prior to 1866 there had been a saw-mill located at said point known as the ‘Old Whitney Mill,’ run by water of said slough, and a dam across said slough at said point to utilize said water-power; that about the year 1860 or 1861 said mill was abandoned, and the mill referred to in the fourth finding herein was built, and put in operation; that said last-mentioned mill has been operated by said Garrison and his grantees until” after this action was brought. “(6) That the plaintiff Lyon soon after the date of said conveyance built a mill upon the west bank of said slough, and a dam across the same at or near the place where the ‘Old Whitney Mill’ had formerly stood, and constructed a wing dam into the Wisconsin river at the head of the island, and a guard-lock (or dam) across said slough near the head thereof, and a short distance below the mill of defendant; that said Lyon continued to use his said mill until May, 1882, when the same passed into the possession of the plaintiffs; that the water-power thus created and utilized by said Lyon was as great as was ever used at the said Whitney mill, and said dams were as high as any dam upon said slough at the time the said Whitney mill was standing, and produced a water-power at said Lyon mill not exceeding eight and one-half feet head. (7) That in the spring and summer of 1882, against the protest of the defendant, the plaintiffs constructed a new dam at said Lyon mill, and raised the dam at the head of the island so as to create a ten-feet head at said Lyon mill; that they also built a dam or guard-lock across said slough upon the land of the defendant, and more than fourteen rods from the said section line; and that they also took out and removed said slab wharf or embankment, and refused to permit the defendant to restore the same.” Plaintiffs appeal.George L. Williams, ( Silverthorn, Hurley, Ryan & Jones, of counsel,) for appellants.
TAYLOR, J.
This action was brought for the purpose of settling the respective rights of the plaintiffs and defendant in the enjoyment and use of a certain water-power and mills situate upon the Wisconsin river. The plaintiffs and appellants are the owners of the lower power and mill upon the stream, the defendant of the upper power and mill. The case was first tried in 1884, and from the judgment rendered in that case the plaintiffs appealed to this court. Upon that appeal this court settled the rights of the respective parties as to the use of their respective powers. In the decision upon that appeal this court said that the plaintiffs were, under their grant, entitled to use “whatever water-power might be created or utilized at the place where the old Whitney mill stood, including, of course, the right to build dams at the head of the island, and at the plaintiffs' mill, to such a height as would be most beneficial to the grantee, but subject to the condition that the full enjoyment of the defendant's mill was not to be impaired.” 63 Wis. 88, 23 N. W. Rep. 97. The report of the case in 63 Wis., will show the situation of the premises of the respective parties, and the claims made by each. Upon that appeal this court held that...
