Omernik v. State

Citation64 Wis.2d 6,218 N.W.2d 734
Decision Date04 June 1974
Docket NumberNos. S,s. S
PartiesRay OMERNIK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 4, 5.
CourtUnited States State Supreme Court of Wisconsin

D. G. Graff, Graff & Schrank, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert B. McConnell, Asst. Atty. Gen., Madison, for defendant in error.

ROBERT W. HANSEN, Justice.

With the evidence circumstantial but sufficient to support conviction, the issues on this appeal become (1) the reach, and (2) the validity of the statute which the defendant was found to have violated.

THE STATUTE. The statute involved, requiring a permit from the state department of natural resources for certain diversions of water from lakes and streams, provides as follows:

'30.18 Diversion of water from lakes and streams (1) When diversion lawful. (a) It is lawful to temporarily divert the surplus water of any stream for the purpose of bringing back or maintaining the normal level of any navigable lake or for maintaining the normal flow of water in any navigable stream, regardless of whether such navigable lake or stream is located within the watershed of the stream from which the surplus water is diverted.

'(b) Water other than surplus water may be diverted with the consent of riparian owners damaged thereby for the purpose of agriculture or irrigation but no water shall be so diverted to the injury of public rights in the stream or to the injury of any riparian located on the stream, unless such riparians consent thereto.

'(2) Surplus water defined. 'Surplus water' as used in this section means any water of a stream which is not being beneficially used. The department may determine how much of the flowing water at any point in a stream is surplus water.

'(3) Application for permit. (a) It is unlawful for any person to divert water for the purposes set forth in sub. (1) without a permit. The applicant shall file an application with the department setting forth the name and post-office address of the applicant, the name of the stream, the point in the stream from which it is proposed to divert the surplus water, the name of the navigable lake or navigable stream or lands to which such water is to be diverted, the location and description of the canal, tunnel or pipes and other works through which the water is to be diverted, the amount of water to be diverted, the periods of time when it is proposed to divert such water, and the time required for the completion of the canal and other structures necessary for the completed project, which shall not be greater than 2 years from the filing of the application.

' '(4) Notice of hearing on application. On the receipt of the application, the department shall set the application for a public hearing, notice of which shall be given by publication and by mailing a copy of the notice, as provided in s. 31.06, to every person upon whose land any part of the canal or other structures will be located, to the clerk of the town, village or city and county in which the diversion will take place, the clerk of the town next downstream, and the clerk of any village or city through which the stream runs and which is adjacent to said municipalities in which the diversion takes place.

'(5) Issuance of permit. At the conclusion of the hearing, if it appears that the water to be diverted is surplus water, or if not surplus water the riparians injured by such diversion have consented thereto, the department shall so find and shall issue a permit for the diversion of such water. No new permit shall issue for diversion of water from any trout stream designated as such by the department in publication 213--57 and subsequent revisions of said publication without prior written approval by the department. The department shall determine and fix the quantity of water to be diverted and the time when such water may be diverted. . . . The department shall annually review all permits to divert water issued since August 1, 1957. Upon making such annual review, the department may revoke any permit upon finding that the withdrawal is detrimental to other riparians or to the stream or lake and shall revoke any permit issued for diversion of water from any trout stream designated as aforesaid when it is deemed desirable to do so for conservation purposes.

'(6) Department to have continuing jurisdiction. The quantity of water to be taken and the time or times when it may be taken shall be under the control of the department, to the end that only surplus water be diverted from its natural channel, and that when any water in a stream ceases to be surplus water, the diversion of such water shall cease except that the department may permit the diversion of other than surplus water with the consent of the riparian owners damaged thereby.'

NON-NAVIGABLE STREAMS. Does sec. 30.18, Stats., apply to non-navigable streams? (There is no claim or proof here that either Flume Creek or Klondike Creek are navigable streams.) As a penal statute, the section is to be strictly construed, 1 but not so strictly construed as to defeat legislative intent. 2 The primary source of construing the statute is, of course, the language of the statute itself. 3 The entire section is to be considered in its construction or interpretation. 4 Thus every word appearing in a statute should contribute to the construction of the statute in accordance with its ordinary and customary meaning. 5

Does the requirement of a permit to divert water apply only to diversions from navigable waters? We answer, No. Subsec. (3)(a) provides that it is unlawful for any person 'to divert water for the purposes set forth in sub. (1) without a permit.' That subsection (1) refers to 'any stream' and 'any navigable stream.' However, the 'any stream' reference is to the streams from which water is to be diverted to maintain normal flow elsewhere. The 'any navigable stream' reference is to the category of streams to which water can lawfully be diverted to maintain normal flow. The reference in subsec. (1)(a) to permitting diversions of water from 'any stream' to maintain normal flow in 'any navigable stream' relates, as does the entire section, to the diversion of waters from 'any stream,' not just from 'any navigable stream.' This construction of subsec. (1) is entirely consistent with other subsections in the particular statute. Subsec. (2) refers to 'any water of a stream.' Subsec. (3) requires that an application for a permit include 'the name of the stream,' the 'point in the stream from which it is proposed to divert the surplus water,' and the location of the canal, tunnel or works 'through which the water is to be diverted.' Subsec. (4) refers to the clerks of cities and villages through which 'the stream runs.' And a provision of subsec. (5), subsequently added, provides for the revocation of permit for 'diversion of water from any trout stream' when it is deemed desirable so to do for conservation purposes. Considering all words, phrases and subsections of the statute, we hold that sec. 30.18, Stats., applies to diversions from non-navigable as well as from navigable streams.

We find no constitutional barrier to the application of sec. 30.18, Stats., to non-navigable waters. Art. IX, sec. 1 of the Wisconsin Constitution, 6 is a limitation upon the legislature to protect public rights in navigable waters from dissipation or diminution by acts of the legislature as trustee of such waters. 7 The limitation in sec. 30.18 upon diversions from non-navigable waters is not inconsistent with the constitutional provision. A reversed construction of sec. 30.18 might raise the question, for, if non-navigable tributaries upstream could be diverted or dissipated, there might be a rather dry riverbed downstream.

STREAM-TO-STREAM. Is the permit requirement limited to stream-to-stream diversions? We answer that it is not. It is true that subsec. (1)(a) deals with the diversion of surplus water to restore the normal level or flow of navigable lakes or streams, while subsec. (1)(b) deals with the diversion of nonsurplus water for the purpose of agriculture or irrigation. Both subsecs. (a) and (b) were originally part of the same paragraph so that, until the separation of (a) and (b) into separate subsections, a reference to sec. 30.18(1) included a referral to both surplus and nonsurplus waters. We do not view the separation of sec. 30.18(1) as a single paragraph into two paragraphs, numbered (a) and (b), as having any substantial consequences on the interpretation to be given the left-unchanged language. One text suggests that there is substance to the argument that subsec. (1)(a) uses the word diversion to refer only to the taking of water from a stream and the moving of it to another and navigable lake or stream, and the corollary contention that '. . . the statute applied only to agricultural or irrigation withdrawals from the stream, the level of which was raised by such a stream-to-stream diversion. . . .' 8 However, the same text writers go on to observe, '. . . the legislature has amended the statute on the assumption that it applies to agricultural irrigation withdrawals from any stream, not just to streams the levels of which have been raised by stream-to-stream diversions. (Citing Ch. 436 (1957) Wis.Laws 584; Ch. 126 (1959) Wis.Laws 136.) The Wisconsin Supreme Court made a similar assumption in the 1959 Nepco case. . . .' 9

We think the text writers' comment on the interpretation given sec. 30.18, Stats., by this court on this point is accurate, although we would term it more than an 'assumption.' In the case referred to, the Nekoosa-Edwards Paper Co. Case, 10 this court decided that the department did not have authority to grant irrigation permits for diversion of nonsurplus waters without the consent of the riparian owners affected. More than implied in such holding is the authority of the department (then the commission) to grant...

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