Priewe v. Wis. State Land & Improvement Co.

• Decision Date: 22 June 1899
• Citation: 79 N.W. 780,103 Wis. 537
• Court: Wisconsin Supreme Court
• Parties: PRIEWE v. WISCONSIN STATE LAND & IMPROVEMENT CO.

103 Wis. 537

79 N.W. 780

PRIEWE

v.WISCONSIN STATE LAND & IMPROVEMENT CO.

Supreme Court of Wisconsin.

June 22, 1899.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by August Priewe against the Wisconsin State Land & Improvement Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action by a riparian proprietor to prevent the carrying out of a scheme for draining Muskego lake, a navigable body of water in Waukesha county, Wis., naturally covering some 3,500 acres of land, for the ostensible purpose of promoting the public health, but actual purpose, as alleged, of enabling the promoters of the scheme to possess themselves of the title to the lake bed; to recover damages caused to plaintiff by a partial draining of the lake; and to compel a restoration of the water to the condition in which defendant found it. In 1887 a law was passed authorizing a lowering of the lake at the cost of the owners of wet lands adjacent thereto, which might be benefited thereby. Under such act the lake was somewhat reduced, drawing the water away from the natural water line of plaintiff's land from 50 to 150 feet, and for which he was assessed for the benefits to 15 acres of land, and paid a portion of the cost. In 1891 a law was passed authorizing James Reynolds, his heirs and assigns, to complete the drainage of the lake, ostensibly to promote the public health, and as consideration therefor, by the terms of the law, all the land within the meander line of the lake was conveyed to him, he being required to repay, to those who paid the cost of the first drainage, 50 per cent. of their respective payments, out of the proceeds of the reclaimed lands that might be sold by him, after reimbursing himself for his expenditures in doing the work. Reynolds caused a corporation to be formed soon after the date of the act of 1891, to which he conveyed his granted rights and privileges in consideration of substantially all the stock of the corporation. Prior to the commencement of this action such corporation, the defendant herein, so far progressed with the drainage scheme as to materially reduce the lake, to the damage of plaintiff, as alleged, and it purposed going on with the work to completion. The purpose of this action was to recover compensation for the damages caused to plaintiff by taking the water of the lake from his land and obtain a mandatory injunction compelling defendant to restore the lake to the condition which existed before its operations commenced. There was a demurrer to the complaint, overruled because it contained sufficient allegations of fact to show, if true, that the purpose of the act of 1891 was not to promote the public health, but to convert the bed of the lake into private property, a thing the state had no power to authorize. Defendant answered the complaint, and the issues were tried, with the following result as to facts, leaving out all merely formal matters: Plaintiff owns land with a frontage of 100 rods on Muskego lake, a navigable body of water in its natural condition, fed by natural springs and spring brooks, and of a depth of from 1 to 40 feet, and an extent, inside the government meander lines, of 3 1/2 miles one way by about 2 miles the other. The use of the lake, before the acts of defendant complained of, was valuable to plaintiff for the purpose of boating, and for its influence upon his farm lands. Under the act of 1887 the level of the lake was lowered about 4 1/2 feet thereby uncovering from 50 to 150 feet in width of lake bottom in front of plaintiff's land, which he thereafter occupied and used. Such lowering of the lake level left a body of water substantially as serviceable to plaintiff as before. It was accessible to plaintiff's land by boats the same as formerly, except that it was more difficult to approach the shore line. In 1868 a legislative grant was made to James Reynolds substantially the same as the act of 1891, he then being a member of the legislature. In 1869 such act of 1868 was repealed. In 1890 Reynolds, who was then a resident of the state of Illinois, revived the scheme of obtaining control of the lake bed, and the result was the act of 1891. The purpose of such act, though ostensibly public, was in fact private. While the recited purpose was the promotion of the public health, the real purpose was to enable the grantee of the act, his heirs or assigns, to obtain title to the bed of the lake. A few days after the act of 1891 was passed Reynolds caused the defendant corporation to be formed, and conveyed to it all his rights under such act, including the right to the bed of the lake within the government meander line, the consideration being $299,700 in the capital stock of the corporation, that being all of the stock except three shares taken by as many persons in order to organize the corporation, $80,000 par value of which stock he gave to persons who enabled him to secure the passage of the act through the legislature. The defendant caused the work of draining the lake, under the act of 1891, to be commenced in 1892, doing but little work, however, that year. The work was continued in 1893 and in 1894, but not in the vicinity of plaintiff's land, and not so as to make the effect of the operations apparent to him till some time in 1894. Plaintiff never acquiesced in defendant's acts which operated to lower the lake level about 4 feet, leaving a considerable portion of the lake bed covered with water consisting of one body about three-fourths of a mile long by 80 rods to half a mile wide, and several navigable channels, all connected with each other in times of high water. Instead of the work done by defendant, of reclaiming the lake bed, promoting the public health, it has, so far uncovered the bottom and left it wet and unfit for cultivation, that its condition is injurious to the public health. In 1895 the state land commissioners made a formal conveyance to defendant of the lake bed as it existed prior to the first drainage. The operations of defendant have resulted in withdrawing the water of the lake from plaintiff's land, destroying his business of operating pleasure boats on the lake, preventing his using his land as a landing place for boats navigating the lake, and drying up the water in his wells, and otherwise injuring his property to his damage in the sum of $1,000. From such facts the court decided that plaintiff's shore line, by the operations conducted under the act of 1887, was extended as the water of the lake was drawn down; that the act of 1891, attempting to convert the lake bed to private ownership, was void; and that plaintiff was entitled to judgment requiring defendant to restore the lake to the condition existing before its operations commenced, and to an injunction prohibiting any further work under such act as to Muskego lake, and to a judgment for costs. Judgment...