Munninghoff v. Wis. Conservation Comm'n

Decision Date13 September 1949
Citation255 Wis. 252,38 N.W.2d 712
CourtWisconsin Supreme Court


Appeal from a judgment of the Circuit Court for Dane County: Alvin C. Reis, Judge.


This is an appeal from a judgment, entered January 25, 1949, which reversed the action of the conservation commission, and its director, dated November 15, 1947, denying the application of petitioner, Paul Munninghoff, for a muskrat farm license under sec. 29.575, Stats. The action was commenced by service of a petition for review on December 3, 1947.

The respondent, Munninghoff, seeks a muskrat farm license for lands owned and leased by him in Oneida county, which are under the navigable waters of the Wisconsin river. On November 14, 1947, at a meeting of the Wisconsin conservation commission, the commission split three to three on the question of whether a license should be issued. By unanimous vote of the commission, the director of the conservation commission, Ernest F. Swift, was requested to make the decision. The license was refused by the conservation commission and its director on the ground that sec. 29.575, Stats., does not authorize the granting of a license for navigable waters.

Munninghoff commenced this action for an administrative review, under ch. 227, Stats., of the commission's action. The respondents demurred to this petition on the ground that the existing statutes governing the conservation commission do not provide for administrative review of a denial of a license. This demurrer was overruled by the trial court. Thereafter the parties negotiated a stipulation that this action may be considered as one for mandamus under ch. 293, Stats., as an action for declaratory judgment under sec. 269.56, Stats., or as an administrative review, whichever may ultimately be determined to be proper.

The trial court in its decision on merits stated:

We do not feel either obliged or permitted to be bound by this stipulation, even though counsel made it with the best of motives. The petition is under the Uniform Administrative Procedure Act. There is no getting away from that. There also is no getting away from one decisive consequence, namely, that where a statute provides the method for judicial review, as Chapter 227 does, there is no other means available. The Supreme Court held in [State ex rel.] Allen v. Railroad Commission, 202 Wis. 223, , that there cannot be mandamus where judicial review by other means in provided. So far as declaratory judgment is suggested, we have no need for a declaratory judgment. We are rendering an out-and-out judgment on the basis of the petition and the Statement of Position on behalf of respondents, strictly under Chapter 227, and that judgment is that the Director's order denying a license, treating that as the Commission's order, should be reserved upon two grounds, at least, as they are enumerated in the statute, 227.20.

(b) In excess of the statutory authority or jurisdiction of the agency. * * *

(d) Unsupported by substanial evidence in view of the entire record as submitted.”

Other material facts will be stated in the opinion.

Thomas E. Fairchild, Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., for appellant.

George A. Richards, Rhinelander, Adolph Kanneberg, Madison, of counsel, for respondent.

Wm. J. P. Aberg, Madison, amicus curiae.

MARTIN, Justice.

First of all, the court has determined that jurisdiction under ch. 227, Stats., is proper.

It is admitted that the lands upon which Munninghoff desires to operate a muskrat farm are his own lands, and are located under the navigable waters of the Wisconsin river. These waters became navigable by the erection by the Rhinelander Paper Company of a dam in the year 1906, which dam flooded the land in question and it has been flooded since that time.

The issues in this case are whether the conservation commission, pursuant to sec. 29.575, Stats., can license privately owned lands lying under navigable waters, and whether such muskrat farming is an incident to navigation.

The muskrat farm law was originally passed in 1919. We do not consider it necessary to go into the legislative history. However, ch. 430, Laws of 1923, repealed and recreated sec. 29.575, subsections (1) to (10), inclusive, substantially as it is today. Subsection (1) was amended by ch. 369, Laws of 1925, which omitted the word ‘skunks' and provided: ‘The owner or lessee of any lands within the state of Wisconsin suitable for the breeding and propagating of muskrats * * * shall have the right upon complying with the provisions of this section to establish, operate and maintain on such lands a muskrat * * * farm, for the purpose of breeding, propagating, trapping and dealing in muskrats.’

By sec. 1, ch. 150, Laws of 1941, this section was repealed and recreated to read: ‘The owner or lessee of any lands or private waters within the state of Wisconsin suitable for the breeding and propagation of muskrats shall have the right upon complying with the provisions of this section to establish, operate, and maintain on said lands or private waters, a muskrat farm for the purpose of breeding, propagating, trapping, and dealing in muskrats. The term private waters as used herein shall mean all waters or streams whether meandered or not which are of a normally shallow, swampy, marshy, or boggy character, not navigable in fact throughout the year by ordinary boats and pleasure craft and which are not of any substantial beneficial use to the public, and where all of the lands immediately abutting upon, surrounding, or bordering said waters, together with all riparian rights incident thereto, are owned or held under written lease from the owner, by the person, firm, or corporation making application hereunder.’ They only change made was to add the language that any owner or lessee of lands ‘or private waters' should be entitled to a muskrat farm license, and then defined the term ‘private waters.’ The appellant takes the position that the change or modification indicated a legislative intention or purpose that no license shall be granted for land covered by navigable water.

‘Private waters' as used in this subsection are in fact waters navigable in law. It is not essential to the public easement that the capacity for navigation be continuous throughout the year to make it navigable or public. It is sufficient that a stream has periods of navigable capacity ordinarily recurrent from year to year and continuing long enough to make the stream usable as a highway. Willow River Club v. Wade, 1898, 100 Wis. 86, 76 N.W. 273,42 L.R.A. 305. The capacity for floating logs to market during the spring freshets which normally lasts six weeks was held to make a stream navigable. Falls Mfg. Co. v. Oconto River Imp. Co. et al., 1894, 87 Wis. 134, 58 N.W. 257.

Illinois Steel Co. v. Budzisz, 1902, 115 Wis. 68, 90 N.W. 1019, and Delta Fish & Fur Farms v. Pierce, 1931, 203 Wis. 519, 234 N.W. 881, cited by appellant, pertain to standing water, not running water, and standing water may be held in private ownership.

By ch. 116, Laws of 1947, the legislature repealed and recreated sec. 29.575(1), Stats., in the precise language in which it was expressed originally, the meaning of which had been construed in Krenz v. Nichols, 1928, 197 Wis. 394, at page 402, 222 N.W. 300, 303, 62 A.L.R. 466, wherein it was stated:

The state, under its police power, and to carry out its trust, passed the statute in question. So far as it affects the public, the statute is reasonable, and is not contrary to any provision of the federal or state Constitution. Nor do we think it is contrary to the decision of this court in Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816, Ann.Cas.1915C, 1148. In that case the court upheld...

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  • Tucker v. Marcus
    • United States
    • Wisconsin Supreme Court
    • February 11, 1988
    ...(quoting Zimmerman v. Wisconsin Electric Power Co., 38 Wis.2d 626, 633-34, 157 N.W.2d 648 (1968)); Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 258, 38 N.W.2d 712 (1949); State v. Hackbarth, 228 Wis. 108, 121, 279 N.W. 687 (1938). In this regard, this court's decision in ......
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