Muench v. Public Service Commission

• Decision Date: 06 May 1952
• Citation: 261 Wis. 492,53 N.W.2d 514
• Parties: MUENCH, v. PUBLIC SERVICE COMMISSION et al.
• Court: Wisconsin Supreme Court

Page 514

53 N.W.2d 514

261 Wis. 492

MUENCH, v. PUBLIC SERVICE COMMISSION et al.

Supreme Court of Wisconsin.

May 6, 1952.

On March 8, 1950, the Namekagon Hydro Company (hereinafter referred to as the 'Company') filed an application with the Public Service Commission to construct, operate, and maintain a hydroelectric dam on the Namekagon River in Washburn county. The Conservation Commission entered its appearance and objected to construction of the dam on the ground that it was violative of public rights and in particular the right declared by sec. 31.06(3), Stats., to 'the enjoyment of natural scenic beauty'. The Conservation Commission was represented at the hearing by the attorney general acting on the express direction of the governor of the state.

The Company introduced in evidence a resolution of the county board of Washburn county adopted in accordance with sec. 31.06(3), Stats., which approved the construction of the dam, and the Public Service Commission, as a result of the adoption by said county board of said resolution, made no finding on the effect of the project on the public rights to scenic beauty and hunting and fishing. Under date of September 29, 1950, the commission issued its findings, conclusions, and certificate of permit to the Company. The effect of the Public Service Commission's findings was to determine that the statutory requirements entitling the Company to a permit to construct the dam existed, and that there were no public rights which required denial of the application.

After the permit was issued both the Conservation Commission and the petitioner Muench filed motions for rehearing before the Public Service Commission, which motions were denied by an order entered December 6, 1950. Muench, a private citizen who is also president of the state decision of the Izaak Walton League, had appeared as a party at the original hearing before the Public Service Commission.

The attorney general took the position that he was not authorized to petition the circuit court for Dane county for a review without special authorization from the governor. Muench, being uncertain as to what action the governor would take with respect to authorizing the attorney general to petition for review, filed a petition for review in his own name under date of November 29, 1950. Later the governor did direct the attorney general to appear in the proceedings and under date of December 6, 1950, the attorney general in the name of the state filed a petition to intervene in the pending proceedings for review.

The company moved to dismiss both the original petition of Muench for review, and the petition for intervention of the state, on two principal grounds:

(1) That the action of the Public Service Commission cannot be reviewed at all; and

(2) That Muench is not a party 'aggrieved and directly affected' within the meaning of sec. 227.16, Stats.

On September 28, 1951, the circuit court entered a memorandum opinion holding: (1) That the statutory water permit was not subject to review as the same was in the nature of a 'legislative grant', and (2) That Muench was not a party 'aggrieved' or 'directly affected' by the action of the Public Service Commission, and directed the dismissal of both Muench's petition for review and the attorney general's petition to intervene.

A formal judgment dismissing the petition for review and the petition to intervene was entered October 15, 1951, and both Muench and the state of Wisconsin have appealed therefrom to this court.

A. D. Sutherland, Fond du Lac, for petitioner.

Vernon W. Thomson, Atty. Gen., and Roy G. Tulane, Asst. Atty. Gen., for the State.

Glen H. Bell, and Charles P. Seibold, Madison, Douglas & Omernik, Spooner, W. E. Torkelson, Madison, for Public Service Commission.

CURRIE, Justice.

We are concerned in this case with the problem of the nature of public rights in the navigable streams of the state and the beds underlying the same, and the protection of such rights. A review of the historical background and a sketching of the development of the recognition of these public rights in the court decisions and statutes of this state should prove to be helpful in passing upon the specific issues presented by the appeals therein.

After the Revolutionary War, the original thirteen states were impoverished and were confronted with the problem of paying the debts created by the war. States without western lands demanded that Virginia and other states claiming such lands to the west should cede the same to the Confederation to be sold to pay such debts. In 1783 the Virginia legislature authorized the ceding of the Northwest Territory to the Confederation, and the actual deed of conveyance was executed March 1, 1784. This cession was made upon two conditions: (1) The new states to be admitted as members of the Federal Union were to have the same rights to sovereignty as the original states; and (2) The navigable waters flowing into the Mississippi and the St. Lawrence rivers, and the carrying places between them were to be forever free public highways. These conditions were incorporated into the Northwest Ordinance of 1787, which set up the machinery for the government of the Northwest Territory.

Art. IX, sec. 1, of the Wisconsin Constitution, adopted by the Territorial Convention on February 17, 1848, and approved by the act of Congress admitting Wisconsin into the Union, incorporated verbatim the wording of the Northwest Ordinance with respect to navigable waters, such section reading as follows:

'The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.'

The late Adolph Kanneberg wrote an excellent article entitled 'Wisconsin Law of Waters', which appeared in the 1946 Wisconsin Law Review, 345, 349. Mr. Kanneberg was a lawyer who specialized in the field of waters and watercourses and was a recognized authority on the subject not only in Wisconsin, but in the nation. He also served as a member of the Railroad Commission of this state for eight years. In his article Mr. Kanneberg stated:

'The Ordinance of 1787 does not define the term 'navigable water.' There was no rule of the Federal Government for the guidance of the states with respect to that matter. The ordinance merely provided that navigable waters were to be public highways, and thus states like Wisconsin and Oregon, which had vast forests of pine timber which would float, found it to their interests to adopt the saw-log test of navigability, while other states adopted different tests of navigability. The Atlantic states generally adopted the salt-water test of navigability, that is to say, any stream up to the point to which the tide ebbs and flows is navigable. In North Carolina, for example, the Yadkin River which has a width of 175 yards is nonnavigable, whereas in Wisconsin any stream capable of floating a saw log during one or two weeks of the spring or other freshets is navigable.'

One of the early cases which established the 'saw-log' test of navigability in the state is that of Olson v. Merrill, 1877, 42 Wis. 203, 212. In that case a dam had been built on Levis creek, a small stream in Jackson county, without legislative authority. An action was brought to abate the dam and for damages. Only in certain seasons of the year was there sufficient water to permit the running of logs. In order to run logs, fallen trees and 'alder tow-heads' had to be cleared out, and because the stream was very crooked it was necessary to station men along the bank with pikes to keep the logs moving. The court in holding the stream to be navigable made this statement:

'And we deem it essential to the public interest in the pine-growing regions of the state, spoken of in Whisler v. Wilkinson , to adopt the rule collected from the authorities in Angell on Watercourses, sec. 537, and substantially adopted in the charge of the court below: 'Nor is it essential to the public easement that the capacity of the stream, as above defined, should be continuous; or, in other words, that its ordinary state, at all seasons of the year, should be such as to make it navigable. If it is ordinarily subject to periodical fluctuations in the volume and height of its water, attributable to natural causes, and recurring as regularly as the seasons, and if its periods of high water or navigable capacity ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement.''

It will thus be seen that Wisconsin, in adopting the saw-log test of navigability, based the same on commercial considerations. Before proceeding to examine some of the later cases and statutes to see whether the same test of navigability still prevails, or whether recreational use of water as well as commercial use may also determine navigability, we turn now to the question of the ownership of the lands underlying our streams.

The United States Supreme Court in Barney v. City of Keokuk, 1876, 94 U.S. 324, 24 L.Ed. 224, declared that the individual states have the right to determine for themselves the ownership of land under navigable waters. At an early date in its history the Wisconsin court put itself on record as favoring the trust doctrine, that the state holds the beds underlying navigable waters in trust for all of its citizens, subject only to the qualification that a riparian owner on the bank of a navigable stream has a qualified title in the stream bed to the center thereof. See the discussion of...