Smith v. Youmans

• Decision Date: 30 April 1897
• Citation: 96 Wis. 103,70 N.W. 1115
• Parties: SMITH ET AL. v. YOUMANS ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 103

70 N.W. 1115

SMITH ET AL.

v.YOUMANS ET AL.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Suit by Shea Smith and others against Henry M. Youmans and others for an injunction. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is an action to restrain the defendants from in any way or manner drawing down or lowering the water in Lake Beulah, so called, and is brought by a large number of riparian proprietors on and along the waters of said lake against the owners and lessee of a certain dam at or near the outlet, whereby the waters of the lake were raised to a sufficient level to create a water power for milling purposes. Upon a trial of the issues joined there was a finding of facts, in substance: That Lake Beulah, as it now exists, originally consisted of two meandered lakes, which were separated by a strip of marsh about 80 rods wide, through which ran a small stream. The outlet of the more northerly of the lakes was by a small stream called Beulah river, which runs northerly, and then easterly until it empties into Mukwanago creek, and said creek runs into Fox river. In 1838 a dam was built across the outlet of said lake at about the point where it left the lake, and the waters of the lake were raised a few feet, creating power for a sawmill erected at the dam. After 1846, and before 1852, the original outlet was closed by an embankment, and has ever since so remained, and an artificial outlet to said lakes was created, at which point another dam was created, raising the waters in said lake to the height of 6 feet above their natural level, and 18 inches higher than by the former dam, creating a body of water known as “Mill Lake,” and a new and artificial outlet for the said lakes, so that their waters, after passing over such dam, flowed by a new channel into said Beulah river, and in consequence of such dam the waters of the said two lakes were so raised as to flood to a considerable depth the marsh land formerly separating them, and making of them one body of water upwards of three miles in length, and varying in width from a quarter of a mile to one mile and a quarter, and with an area of about 900 acres. All these changes were made by Ball & Mower, the remote grantors of H. A. Youmans, under and through whom the defendants claim their rights and interests; and Ball & Mower built upon a site near said dam a grist mill, which was used and operated by the power thus provided until it was destroyed by fire in 1876. That the owners of the said dam and mill site at all times thereafter until shortly before the commencement of this action maintained the level of the water in said lakes at the point to which it was raised by said dam, save only as it was raised by freshets or unusual rains, or was lowered, as hereinafter stated, by draft of water through the said dam for use at said mill. By the construction and maintenance of said dam, and such consequent raising of the level of waters in said lakes, portions of the lands owned by certain of the plaintiffs and the grantors of certain others of them were flowed and submerged by such dam owners continuously, adversely, and uninterruptedly and notoriously, exclusively of any other right, under claim of right for more than 40 years, and at all times during that period the said level to which the waters were so raised by said dam was substantially and constantly maintained; so that said Youmans and his said grantors and his heirs and devisees acquired a right by prescription to so flow said lands, both as against the owners of lands bordering on said lakes and as against riparian owners below said lands. One effect of the construction of said artificial outlet, and the diversion thereto of the natural flow of the waters of said lakes, and the construction and maintenance of said dam and embankment, was to deepen the waters of the lakes, and set said waters up and back against the hard and higher banks, and to make said lakes navigable for row boats, small sail boats and steam launches, and to make the banks eligible and desirable sites for summer cottages and summer resorts, and to make said lakes a desirable place for fishing, boating, and recreation, and to make the margin of the lake touch the grassy banks, and submerge the boggy and marshy shores, as they before existed, and to render the banks readily accessible by small row and pleasure boats. About the year 1888, and from time to time thereafter, sundry of the plaintiffs, relying upon said conditions, and the level of the lake as then existing, and as having so uniformly existed for more than 40 years, built summer homes for themselves and families, or summer resorts for recreation, and purchased divers lots and parcels of land fronting and bounded on said lakes for that purpose, and made divers and sundry valuable improvements on said lots to that end, as did many other persons. That certain other plaintiffs named owned lots and lands bounded by said lakes, and had owned the same from an early day. That said lands, for agricultural purposes, were worth not more than $50 per acre, but for the purposes aforesaid, with the level of said lakes as thus maintained, were worth from $1,000 to $2,000 per acre. The dam belonging to the defendants Youmans, Haight, and West consists of an embankment of earth, with two openings, one for a flume, and the other for a waste weir, and are planked on the bottom and sides, and after the destruction of the mill, and until a short time before the action was brought, were kept closed by bulkheads, backed up with gravel; and after the destruction of the mill in 1876 the power created by the dam had not been used. The defendant John Howitt is, and for many years has been, the owner of a grist mill at Mukwanago, upon a stream into which said Beulah river empties, about five miles below said dam, which is, and for 40 years past has been, driven by water power created by a dam across the said stream; and said Howitt, September 16, 1891, took from H. A. Youmans, then the owner of the dam and mill site at the foot of said lakes, a lease of the water power and water rights there created, and which still remained in force, and by it he was to expend a certain sum annually on the dam, flumes, and weirs of said water power, and was to do certain other work thereon. If the bulkheads were to be removed, and the water allowed to run freely through said dam, the level of the water in the Beulah Lake would be drawn down to a point over three feet below the lowest point to which the water was drawn in the operation of the mill formerly there maintained; and, if the dam should be removed, the said waters would fall to a point four feet further. The lowest point to which the waters were drawn, or could be drawn...