Priewe v. Wis. State Land & Improvement Co.

• Decision Date: 19 June 1896
• Citation: 67 N.W. 918,93 Wis. 534
• Parties: PRIEWE v. WISCONSIN STATE LAND & IMPROVEMENT CO.
• Court: Wisconsin Supreme Court

93 Wis. 534

67 N.W. 918

PRIEWE

v.WISCONSIN STATE LAND & IMPROVEMENT CO.

Supreme Court of Wisconsin.

June 19, 1896.

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

Action by August Priewe against the Wisconsin State Land & Improvement Company for damages, injunction, and general relief. From an order sustaining a demurrer to the complaint, on the ground that it did not state facts constituting a cause of action, plaintiff appeals. Reversed.

The complaint alleges, in effect: That Muskego Lake is situated within the boundaries of Waukesha county and is a natural body of water, and up to 1891 was about 4 1/2 miles long and 1 1/2 miles wide (its greatest length being from north to south), and from 1 to 10 feet deep. That the lake was regularly surveyed and meandered by the United States prior to the admission of this state into the Union, and covered about 3,500 acres of land. That long prior to 1891 the United States patented to settlers and purchasers the lands lying in, about, adjacent to, and bordering upon that lake, together with the riparian rights, water rights, privileges, and easements incident to, in connection with, and adjacent to said lake. That the lake, at all times prior to the acts complained of, abounded in fish and game in great quantities. That it was navigable for sail, steam, and row boats, and much used for business and pleasure. That upon the northerly side a large number of small creeks and living streams of water flowed into the lake, and the waters in the lake constantly moved towards the south. That at the southern end of the lake was an outlet, which emptied into Wind Lake, in Racine county. That ever since 1875 the plaintiff has been and is now the owner in fee simple and in the possession of 66 1/2 acres of land, described, adjacent to and upon the north side of Lake Muskego, and in contact with the waters thereof, having a natural frontage line upon that lake of about 100 rods. That during that period he has been and now is engaged in the business of farming, stock raising, and maintaining a club house, lodging house, and resort, with boats and hunting and fishing tackle, both for use and rent upon the waters of that lake. That the plaintiff had erected thereon houses, barns, stables, fences, and other improvements, situated near to and adjacent to the lake. That the lake, prior to the acts complained of, was a source of health, pleasure, and profit to the plaintiff and his guests, and the public in general. That the plaintiff made great use of the waters of the lake, and of the riparian rights belonging to and forming a part of his premises, in connection with his farm, club house, dwelling house, boarding house, etc. That, prior to the acts complained of, his premises were worth $9,000. That, since the earliest settlements in the vicinity, the bottom of the lake has generally, but erroneously, been supposed to be composed of a deep layer of decayed muck or vegetable matter, which would become productive and of great value for agricultural purposes if the water could be drained therefrom. That to secure such drainage, and the title to and possession of 3,500 acres of the bed of the lake, many schemes have been at various times devised, and some work done towards carrying out the same. That, to effect such purpose, the Muskego Canal Company was incorporated by chapter 262, Priv. & Loc. Laws, 1854, with power and authority to construct and maintain a canal for the purpose of draining the waters of Muskego and Wind Lakes in the counties of Waukesha and Racine, into the Root river or its tributaries, and to connect the waters of adjoining lakes with the waters of these lakes, and to drain the same, thereby giving the incorporators the sole and exclusive right to do as therein authorized. That the power and authority so given was extended by chapter 498, Priv. & Loc. Laws, 1856, to January 1, 1858. That by chapter 198, Priv. & Loc. Laws, 1868, substantially the same powers, rights, privileges, and reservations as granted to the Muskego Canal Company were attempted to be given and granted to James Reynolds and others. That chapter 198, Priv. & Loc. Laws, 1868, was repealed by chapter 326, Priv. & Loc. Laws, 1869. That chapter 169, Laws 1887, entitled “An act to provide for the drainage and reclamation of certain lands in Racine and Waukesha counties,” went into effect April 21, 1887, and provided, in effect, that whenever 15 or more owners of wet or overflowed lands lying adjacent to any one or more of the lakes of Wind, Muskego, and Eagle shall be of the opinion that such lands will be benefited by the system of drainage and subject to the assessment therein provided, and who shall be of the opinion that the public health and welfare will be promoted thereby, shall desire to institute proceedings for the drainage and reclamation of lands in any such part of either of said counties, either by constructing, extending, opening, enlarging, widening, straightening, or deepening water courses, or removing natural or artificial obstructions therefrom, or by permanently lowering the ordinary level of the water in any or all of said lakes, they may apply to the circuit court, or the judge thereof, by petition, for the institution of such proceedings and for the appointment of five commissioners, etc., giving to such commissioners certain powers, and prescribing certain things to be done by them. That such proceedings were commenced by the filing of a petition and the appointment of commissioners in October, 1887. That such commissioners were appointed for the purpose of lowering the water in Muskego Lake 4 feet, and to widen and deepen the river between Muskego and Wind Lakes. That during 1889 and 1890 such proceedings were had by said commissioners that the plaintiff was assessed for benefits to be derived from said system of drainage, including the lands which this plaintiff was to acquire by means of draining the water in said lake from his front line, which assessment the plaintiff paid. That during said years, by the system of drainage thus adopted and carried out, the level of Muskego Lake was lowered in 1890 about 4 1/2 feet below the low-water mark. That the water in that lake receded from its ordinary and usual level, as maintained January 1, 1888, upward of 2 rods, and that the plaintiff acquired, by means thereof, under such proceedings, upward of 4 acres, and his line of lake frontage of his said lands was by said public proceedings changed accordingly, for all of which he was assessed and paid a valuable consideration. That the plaintiff thereupon laid out and expended large sums of money upon his said lands in order to reasonably and profitably enjoy and use the same for farming and resort purposes. That the amount of profitable and remunerative business of the plaintiff constantly increased until the acts herein complained of. That the plaintiff paid such assessments, relying upon the action of the commissioners and others under said last-named act as being a final settlement of the question of lowering the level of Muskego Lake. That the public health and well-being of the communities adjacent to Muskego Lake did not thereafter, and never have, required that the system of drainage so adopted and carried out should be extended, enlarged, and completed, so as to drain the bed and bottom of said lake. That chapter 202, Laws 1891, entitled “An act granting to James Reynolds, his heirs and assigns, the right to complete the draining of certain swamp, wet and overflowed lands in the counties of Waukesha and Racine and to confirm his title thereto,” went into effect April 13, 1891. That it recited certain provisions of said chapter 198, Priv. & Loc. Laws, 1868, and proceedings under said chapter 169, Laws 1887, and contained, among others, the following recital: “Whereas, the preservation of the public health, and the well being of the communities adjacent to said lakes, imperatively require that said system of drainage should be extended, enlarged and completed so as to effectually drain such wet and overflowed lands.” That 12 days after the publication of that act, and on April 25, 1891, James Reynolds and wife, of Illinois, executed and delivered to the defendant company a certain quitclaim deed, for the nominal consideration of $299,700 in the shares of the capital stock of the defendant, at their par value, of all the lands within the meander lines and boundaries of Muskego Lake as they existed prior to January 1, 1888; and, further, by said deed purported to grant and convey the lands within said meander lines, and the overflowed lands adjacent thereto, as also the lands within the meander lines of said Wind Lake. That said deed was recorded June 26, 1891. That ever since said conveyance the defendant has claimed to hold and to have all the rights, privileges, benefits, and obligations thereby attempted to have been granted and conveyed. That in the summer of 1891 the defendant commenced the prosecution of said work and drainage for the sole and express purpose of draining the bed of the said lake, and acquiring and possessing itself of the lands under the waters thereof. That in the prosecution of said work the defendant, from time to time, has been opening, extending, and deepening the ditches and drains in and about said lake, with the purpose and intent of withdrawing all of the water from said lake bed, and of confining the same within the ditches and canals constructed by it, so that the said lake shall be entirely destroyed. That the waters of the lake have already been lowered several feet from the level at which the same stood prior to June 26, 1891. That the same was done entirely without the consent or approval of the plaintiff. That by reason of the destruction of the plaintiff's water rights and privileges, so unlawfully and wrongfully done and performed by the defendant, the plaintiff has suffered and is suffering great...