Merwin v. Houghton (In re Trempealeau Drainage Dist.)

• Decision Date: 01 June 1911
• Citation: 131 N.W. 838,146 Wis. 398
• Parties: IN RE TREMPEALEAU DRAINAGE DIST. MERWIN ET AL. v. HOUGHTON ET AL.
• Court: Wisconsin Supreme Court

146 Wis. 398

131 N.W. 838

IN RE TREMPEALEAU DRAINAGE DIST.MERWIN ET AL.

v.HOUGHTON ET AL.

Supreme Court of Wisconsin.

June 1, 1911.

Appeal from Circuit Court, Trempealeau County; E. C. Higbee, Judge.

In the matter of the organization of the Trempealeau Drainage District. From an order establishing the district, B. E. Houghton and others, remonstrants, appeal adversely to William Merwin and others, commissioners. Affirmed.

This is a proceeding to secure the drainage of some swamp and marsh lands in the vicinity of the junction of the Trempealeau river with the Mississippi.

The district which it is proposed to drain is known as the “Trempealeau bottom,” and comprises about 7,084 acres. It is about six miles long and of varying width up to about three miles. The tract extends along the Mississippi river, and, except for two openings in an embankment on which the main line of the Chicago, Burlington & Quincy Railroad runs, the flood waters of the Mississippi are excluded from the tract. Along the northerly and easterly boundaries of the district lies the Chicago & Northwestern Railroad line. The Trempealeau river divides near Marshland, a station on the Chicago & Northwestern Railroad line at about the center of the northeasterly boundary of the tract. One of the branches is called Pine creek. Both streams cross the tract which it is proposed to drain, and reuniting flow into Trempealeau bay. The Trempealeau river has abandoned part of its original channel, and now has a winding and longer channel north and west of the old one. Houghton creek takes its rise southwest of Marshland and flows south and east over the southeastern part of the proposed drainage district through the low ground between the Chicago & Northwestern Railroad embankment and some high-ground south and west of this line of railroad. It is proposed to effect the drainage of the above described district by closing the openings in the Chicago, Burlington & Quincy Railroad embankment, thus shutting out the flood waters of the Mississippi river from the district; by opening a new channel for the Trempealeau river and Pine creek from Marshland to Trempealeau bay, using for the new channel the general course of Houghton creek; and by confining the flood waters to this new channel by a levee from Marshland to the western end of the strip of high ground south of the new channel, and by a levee from the southeastern end of this strip of high ground to Mount Trempealeau at Trempealeau bay. A ditch from the extreme western end of the district to its southeastern limit at Trempealeau bay is to be constructed to drain the whole district. The commissioners, appointed to examine the lands and the plans for their drainage and to report upon the feasibility and necessity of the work, recommended that the district be changed by excluding therefrom a small body of land lying at the extreme northwestern end of the district. They believed that the benefits to this small body of land would not exceed the damages. Otherwise the commissioners recommended the prosecution of the work as necessary and of utility, as promotive of the public health, and as furthering the general welfare. They reported that sources of danger to the public health would be removed, that lands now largely valueless would become sanitary in their condition and be made tillable and productive and valuable, and that the benefits would largely exceed the damages. Remonstrances against the prosecution of the work were filed by owners of lands bordering the proposed new channel for the Trempealeau river; it being alleged that the public health could not be benefited because the district is unsettled; that new burdens would be imposed upon the remonstrants as riparian owners on the new channel; that navigation would not be improved; and that the public rights of fishing and hunting in the navigable waters within the district would be destroyed. On the hearing before the court upon the remonstrances and the report of the commissioners, there was evidence as to the navigability of Pine creek and the Trempealeau river and of the bodies of water called Wilson, Mud, and Spring Lakes, as to the extent of the hunting and fishing in the district, and as to the utility of the lakes, specifically as to ice having been cut at times from Mud Lake. The court found from the evidence that the channel of the Trempealeau river had been almost entirely changed from its original bed; that the so-called lakes were merely ponds or sloughs scooped out in the bed of the river by heavy rainfalls or freshets; that they were mere spreads of the river and creek constituting part of them; that Trempealeau river is meandered and is navigable in ordinary stages of the water for part of the time by small rowboats only; that Pine creek is not meandered, but that it is likewise navigable in ordinary stages of the water; that neither the Trempealeau river nor Pine creek have ever been used for any commercial transportation; that in stages of high water the rivers and lakes are all obliterated, and the entire district is flooded and is then navigable with rowboats and hunting skiffs; that Spring Lake or slough is meandered, but was not returned as navigable, and in fact is not navigable; and that the proposed change in the channel of the Trempealeau river would greatly improve its navigability. The report of the commissioners was approved and the district established as a drainage district.

This is an appeal from the order of the court approving the findings of the commissioners establishing the drainage district and ordering the prosecution of the work.Frank Winter, A. T. Twesme, and John C. Gaveney, for appellants.

W. S. Wadleigh and Webber & Lees, for respondents.

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

[1] The appellants assail the trial court's findings pertaining to the material facts involved in the organization of the drainage district under the provisions of the statutes. It is contended that the organization of the drainage district pursuant to the proposed drainage scheme will not in fact be promotive of the public health or general welfare, that there are navigable streams and lakes within its boundaries which will be wholly diverted from their channels or annihilated, and that the public rights of hunting and fishing in and upon such waters will thus be wrongfully destroyed. The area embraced within the proposed district contains a large quantity of low and swampy land along the border of the Mississippi river, known as river bottoms, through which flow the waters of the Trampealeau river, which empties into the Mississippi river. It appears that the low areas of this district are completely inundated at high water of these rivers and that the banks of the rivers, and the creeks, ponds, and sloughs or lakes are obliterated, forming one body of water, that at stages of ordinary low water the Trempealeau river and Pine creek flow in winding channels bordered with low banks, and that the channels spread out in places and form what are called sloughs, ponds or lakes, some of which at times of low water are entirely separated from flowing water, thus creating shallow and stagnant pools. It is manifest that the proposed scheme of dykes and drains would practically prevent inundation of the area from freshets and high water and would drain off the waters naturally collecting therein, thus producing a large area of dry and tillable land, and a consequent destruction of insanitary conditions inimical to public health. These facts and conditions authorized the organization of the drainage district, unless it should appear that private rights of persons and the rights of the public were thereby wrongfully invaded.

[2] It is well established in the law of this state that the rights of riparian owners on navigable waters rest upon the title to the bank, and that such rights may be condemned for public purposes as other property upon payment of a just compensation therefor. The claim that remonstrants' riparian rights are to be injuriously affected by the change of the channel of the Trempealeau river and by the removal of the water from the drained area cannot operate to stay the hands of the state in carrying out a public purpose so long as due provision is made for compensating such riparian owners for any damage done to their riparian...