Nekoosa-Edwards Paper Co. v. Public Service Commission, NEKOOSA-EDWARDS

• Decision Date: 01 December 1959
• Docket Number: NEKOOSA-EDWARDS
• Citation: 8 Wis.2d 582,99 N.W.2d 821
• Parties: , 32 P.U.R.3d 161 PAPER CO. et al., Petitioners-Respondents, v. PUBLIC SERVICE COMMISSION, Appellant, Wood County et al., Intervenors-Respondents (Alois Firkus case).PAPER CO. et al., Petitioners-Respondents, v. PUBLIC SERVICE COMMISSION, Appellant, Wood County et al., Intervenors-Respondents (Okray Produce Co. case).
• Court: Wisconsin Supreme Court

Page 821

99 N.W.2d 821

8 Wis.2d 582, 32 P.U.R.3d 161

NEKOOSA-EDWARDS PAPER CO. et al., Petitioners-Respondents, v. PUBLIC SERVICE COMMISSION, Appellant,

Wood County et al., Intervenors-Respondents (Alois Firkus case).

NEKOOSA-EDWARDS PAPER CO. et al., Petitioners-Respondents, v. PUBLIC SERVICE COMMISSION, Appellant,

Wood County et al., Intervenors-Respondents (Okray Produce Co. case).

Supreme Court of Wisconsin.

Dec. 1, 1959.

William E. Torkelson, Madison, for appellant Public Service Comm.

H. D. Anderson, Jr., Stevens Point, for appellant.

Chambers & Nash, Wisconsin Rapids, Robert R. Johnson, Port Edwards, for plaintiffs-respondents.

Morgan L. Midthum, Dist. Atty., Wisconsin Rapids, for intervenor-respondent.

Wickham, Borgelt, Skogstad & Powell, Harry F. Franke, Milwaukee, as amici curiae.

HALLOWS, Justice.

The important question presented on these appeals which in our view of the cases makes it unnecessary to consider any others is: Does sec. 31.14, Stats., confer upon the Public Service Commission the jurisdiction to determine and regulate the common-law rights of all riparian owners to the use of nonsurplus water in a navigable stream? To determine this question requires a construction of sec. 31.14 which heretofore has not been construed. The primary source of construing the statute is the language of the statute itself. Sec. 31.14 is set forth in part in the footnote. ¹

Subsection (1) declares it to be lawful to temporarily divert surplus water of any stream to bring back or to maintain the normal level of a navigable lake or to maintain the natural flow of water in a navigable stream even though such lake or stream is not in the same water shed. Nonsurplus water may be diverted with the consent of the riparian owners damaged thereby for the purpose of agriculture or irrigation. However, no water shall be so diverted to the injury of public rights or of any riparian owners unless such riparian shall consent thereto. The language of the statute seems clear. It makes a distinction between the diversion of surplus water and nonsurplus water and the purposes of such diversion and the conditions on which nonsurplus water may be diverted.

In subsection (2), surplus water is defined as any water of a stream which is not being beneficially used. Logically, nonsurplus water or water other than surplus water must be any water in a stream which is being beneficially used. The Public Service Commission is granted by subsection (3) the authority to determine how much of the flowing water at any point in a stream is surplus water. This is a logical provision since it is necessary in each case and from time to time to determine what water in any stream is surplus under the definition in subsection (2) as applied to the particular facts. Thus, to determine whether a riparian's consent is needed for diversion, the Public Service Commission must determine whether the proposed diversion is of surplus water or nonsurplus water. Subsection (8) provides that if the commission shall find either alternative a permit for diversion shall issue. Subsection (9) places control over the diversion in the Public Service Commission so that only surplus water shall be diverted and such diversion shall cease when the water in the stream ceases to be surplus water unless the riparian owners damaged by the diversion of nonsurplus water consent.

The commission contends it has the jurisdiction to determine whether the diversion of nonsurplus water will damage or injure riparian owners and if it finds no such injury the consent of such owners is not required. We find no authority in the statute for this position. The statute contemplates that a beneficial user is damaged or injured by the diversion of nonsurplus water and requires his consent. The commission having determined that the flow of water in a stream is not surplus water because it is being beneficially used by riparian owners, it follows that any diversion of such nonsurplus water as a matter of law would injure the riparian owners beneficially using such water and their consent must be obtained.

This is the only construction consistent with the rights of riparian owners in streams. The language of sec. 31.14, Stats., does not grant jurisdiction to the Public Service Commission to determine or adjust the rights of riparian owners injured because of a proposed diversion of nonsurplus water. The power of the Public Service Commission is limited to granting permits for the diversion of surplus water, and in the case of waters determined by it to be nonsurplus, only for agriculture and irrigation purposes when the riparian owners beneficially using such nonsurplus water have consented to such diversion. It is to be noted sec. 31.14 does not provide any standard for the determination of the relative rights of claimants to water, or for any consumptive use except agriculture and irrigation by consent of riparian owners for nonsurplus water.

This construction is substantiated by the legislative history of the act. Bill No. 234, A., which became ch. 287, Laws of 1935, was entitled, 'An Act to create section 31.14 of the statutes, relating to relief of low water conditions of navigable rivers and lakes.' As originally drafted the bill was designed to permit diversion from one stream to maintain the normal level or flow in another stream or lake. The provision applying to the use of nonsurplus water for agriculture and irrigation was added later. See bill jacket on ch. 287, Laws of 1935, Wisconsin Legislative Reference Library. Mr. Adolph Kanneberg, a former commissioner of the Public Service Commission and an expert on water power, was a consultant and assisted in drafting this statute. In his article on 'Wisconsin Law of Waters,' 1946 Wisconsin Law Review, 345, 372, in discussing sec. 31.14, he states, 'A riparian owner who is injured by the diversion may obtain redress from the courts in the form of damages or in certain cases by injunction upon a showing that the diversion is an unreasonable use in excess of the rights incident to riparian ownership. The act therefore provides that only surplus water may be diverted and that the diversion must cease as soon as that water to be diverted is no longer surplus water.' On p. 373, he stated the provision in the act that water other than surplus water may be diverted with the consent of the riparians affected thereby was inserted in the interest of cranberry growers. Many instances of permits granted for the diversion of surplus water during the years 1937-1940 are given. It is significant that no application was made for the diversion of nonsurplus water for irrigation purposes until 1950, some fifteen years after the statute was passed.

The difficulty in this case is using a statute designed for a particular purpose to ascertain rights for a wholly different purpose. The primary purpose of sec. 31.14, Stats., was to provide a remedy for the subnormal lake and stream levels caused by the dry spell of the early 1930's. Its application in this case is to ascertain rights of consumptive use by irrigators by means of a permit system.

It is argued that such background material is not a proper aid to statutory construction, relying on Moorman Mfg. Co. v. Industrial Comm., 1942, 241 Wis. 200, 5 N.W.2d 743, and Papke v. American Automobile Ins. Co., 1946, 248 Wis. 347, 21 N.W.2d 724. These cases are to the effect that what the framer of an act meant by the language used cannot be shown by testimony or his statements. The meaning of a legislative act must be determined from the language used. This language may or may not express accurately what the framer of the act intended to say or what he thought he was saying. In determining the meaning of the language, the court can take judicial notice of the legislative history of acts which are public records. Such material is not determinative, but is sometimes helpful in construing legislative acts. Since the Moorman and Papke cases were decided, this court has several times made use of such material to substantiate a construction of the language of an act or to aid in choosing one of two or several reasonable constructions in order to adopt that construction consistent with the purpose of the act. See Larson v. Lester, 1951, 259 Wis. 440, 49 N.W.2d 414; Matczak v. Mathews, 1953, 265 Wis. 1, 60 N.W.2d 352, (documents); Nolan v. Wisconsin Real Estate Brokers' Board, 1958, 3 Wis.2d 510, 543, 89 N.W.2d 317 (correspondence); Wisconsin Valley Imp. Co. v. Public Serv. Comm., 1959, 7 Wis.2d 120, 124, 95 N.W.2d 767, and Muench v. Public Service Comm., 1952, 261 Wis. 492, 510, 53 N.W.2d 514, 55 N.W.2d 40, (law review articles by the chairman of the drafting committee which were not a part of the legislative history file).

It is contended that the Public Service Commission has given a practical construction to sec. 31.14, Stats., from 1950 to the present time in some 138 cases to the effect that the commission has the jurisdiction to grant permits for the diversion of nonsurplus water without the consent of riparian owners when the commission finds such owners are not substantially injured by such diversion. There may be a dispute whether such cases are in the record and what they held. Be that as it may, a construction of a statute by a state agency dealing with its own power is quite different from a construction dealing with administrative procedure, but in both cases an agency construction is not binding on this court and has pertinency only when the statute is ambiguous and needs construction. State ex rel. Raymer v. Cunningham, 1892, 82 Wis. 39, 51 N.W. 1133; Travelers' Ins. Co. v. Fricke, 1896, 94 Wis. 258,...