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

• Decision Date: 06 May 1896
• Citation: 67 N.W. 432,93 Wis. 283
• Parties: PATTEN PAPER CO., LIMITED, ET AL. v. GREEN BAY & M. CANAL CO. ET AL.
• Court: Wisconsin Supreme Court

93 Wis. 283

67 N.W. 432

PATTEN PAPER CO., LIMITED, ET AL.

v.GREEN BAY & M. CANAL CO. ET AL.

Supreme Court of Wisconsin.

May 6, 1896.

Action by the Patten Paper Company, Limited, against the Kaukauna Water-Power Company and others, in which the Green Bay & Mississippi Canal Company filed a cross complaint. An appeal by the cross complainant was dismissed (66 N. W. 601), and it moves to vacate the order of dismissal and to reinstate the appeal. Motion denied.B. J. Stevens and E. Mariner, for the motion.

Hooper & Hooper, David S. Ordway, and Fish & Cary, opposed.

CASSODAY, C. J.

The motion to dismiss the appeal in this case was granted March 10, 1896. 66 N. W. 601. This is a motion to vacate that order, and to reinstate the appeal. It is true, the motion was not made until more than 30 days after the decision dismissing the appeal, but it is claimed that in making that decision this court did not fully consider the status of the case, in respect to the rights of the appellant, and hence that this is a motion to correct a mistake in the record of this court, within the meaning of rule 21. The motion is in the nature of a motion for a rehearing, and, as such, should have been made within 30 days after the decision. Rule 20. By the statute, as originally enacted, the clerk of this court was required to remit the record to the court below within 30 days after the decision, unless the court directed the same to be retained for the purpose of enabling a party to move for a rehearing. Laws 1860, c. 264, § 7; 2 Tayl. St. Wis. § 7, c. 139. By the revision of 1878 the 30 days were changed to 60 days. Rev. St. § 3071. While the motion is irregular, and might be denied on that ground, yet, under the statute, as it now stands, we have no doubt that this court has retained jurisdiction over the case, especially as the papers in the case have been retained, by the direction of the court, for the purposes of this motion. Krall v. Lull, 46 Wis. 643, 1 N. W. 217.

The case is important, and should, if possible, be decided on the merits, and we feel it to be our duty to so decide it. Counsel for the appellants seems to be correct in claiming that, in deciding the motion to dismiss the appeal, we overlooked the fact that the complaint for the partition of the water in the river below the dam, and above the head of the islands, mentioned, admitted that the canal company was then drawing one-half the flow of the river, from the dam in and through its canal, to a point below the head of island No. 3, and there used, or leased to others to be used, as water power, while passing from the canal, down into one or more of the channels below the dam, and that the prayer of the complaint asked no restraint of such drawing and use by the canal company, but simply asked an injunction against the Kaukauna Water-Power Company, and that the court should determine and adjudge what share or proportion of the entire natural flow of the river was appurtenant to, and of right should be permitted to flow in, the south, middle, and north channels of the river, respectively. The purpose of the action was not to contest conflicting claims to water above the dam, nor such as flowed in the canal, but to partition the water which might flow in the river below the dam, between the several owners thereof, as prescribed by the statutes....