Patten Paper Co. v. Green Bay & M. Canal Co.

• Decision Date: 22 June 1899
• Citation: 83 N.W. 1119,104 Wis. 24
• Court: Wisconsin Supreme Court
• Parties: PATTEN PAPER CO., LIMITED, ET AL. v. GREEN BAY & M. CANAL CO.

104 Wis. 24

83 N.W. 1119

PATTEN PAPER CO., LIMITED, ET AL.

v.GREEN BAY & M. CANAL CO.¹

Supreme Court of Wisconsin.

June 22, 1899.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge. Action by the Patten Paper Company, Limited, and others, against the Green Bay & Mississippi Canal Company. Judgment for defendant was reversed on appeal. 90 Wis. 370, 61 N. W. 1121, 63 N. W. 1019. From a judgment entered on remand the appeal was dismissed. 93 Wis. 283, 66 N. W. 601, 67 N. W. 432. On removal to the supreme court of the United States on a writ of error, judgment was reversed and cause remanded. 172 U. S. 58, 19 Sup. Ct. 97, 43 L. Ed. 364. Motion for judgment on mandate of the supreme court granted.

*1119B. J. Stevens and E. Mariner (W. F. Vilas, of counsel), for the motion.

Geo. G. Greene, Fish, Cary, Upham & Black, John T. Fish, D. S. Ordway, and Moses Hooper, opposed.

PER CURIAM.

After hearing counsel for the respective parties, and in obedience to the mandate of the supreme court of the United States in the above-entitled action, it is determined and adjudged that the judgments heretofore entered in this court, and the judgment heretofore directed by this court to be entered by the superior court of Milwaukee county in this action, be, and the same are hereby, reversed and set aside, with costs to be taxed in favor of the Green Bay & Mississippi Canal Company in this and the trial court; and it is further adjudged that those portions of the judgment first entered in this action and brought to this court on the appeals be, and the same are hereby, modified to read as follows: “(1) It is hereby considered and adjudged that the defendant the Green Bay & Mississippi Canal Company is the owner of, and entitled, as against all the parties to this action and their successors, heirs, and assigns, to, the water power incidentally created by said upper or government dam across the Fox river at Kaukauna, and is not obliged to permit any of the water of the river or pond to flow over the dam, but is entitled to withdraw from the pond made by said dam all of the surplus water not necessary for navigation, either through the canal or directly from the pond, and is not obliged to permit any of the water from the river or pond to flow over said dam, subject to any and all rights of the United States with reference thereto. (2) It is further considered and adjudged that all and singular the parties to this action are hereby forever...