State ex rel. Atty. Gen. v. Norcross

• Decision Date: 21 May 1907
• Citation: 112 N.W. 40,132 Wis. 534
• Parties: STATE EX REL. ATTY. GEN. v. NORCROSS.
• Court: Wisconsin Supreme Court

132 Wis. 534

112 N.W. 40

STATE EX REL. ATTY. GEN.

v.NORCROSS.^a1

Supreme Court of Wisconsin.

May 21, 1907.

Appeal from Circuit Court, Rock County; B. F. Dunwiddie, Judge.

Quo warranto by the state, on the relation of the Attorney General, against Pliny Norcross. From an order sustaining a demurrer to the complaint, relator appeals. Reversed and remanded.F. L. Gilbert, Atty. Gen., L. M. Sturdevant, (Bird, Gilman & Hobbins, of counsel), for appellant.

Ruger & Ruger (J. V. Norcross, of counsel), for respondent.

TIMLIN, J.

The complaint avers that the action is brought by the Attorney General under the provisions of section 3466, St. 1898; that Rock river is a navigable stream rising in or near Fond du Lac county, in this state, thence flowing in a southerly direction through the counties of Dodge, Jefferson, and Rock in this state, and thence into the Mississippi river, and that in the southerly part of Jefferson county is Lake Koshkonong, which has an extreme length of about seven miles and an extreme width of about four miles. Rock river flows through said lake, which is in fact a widening of Rock river, and is navigable. Both Rock river and Lake Koshkonong had been meandered and returned as navigable by the United States surveyors before the state was organized, and the river is declared navigable by statute of this state up as far as township 14, in range 15, in this state, and was at the time of the organization of the state government, ever since has been, and now is, navigable in fact for the floating of logs, lumber, timber, rafts, and small water craft. There is pleaded an act of the legislative assembly of the territory of Wisconsin approved April 7, 1843, authorizing Clouden Stoughton and Luke Stoughton to build and maintain a dam across this river upon any land they might own in sections 16 or 21, township 4, of range 12, if thereunto duly authorized by competent authority, and to use the water for propelling any kind of machinery, and to sell or lease the right to use the water. Certain requirements of the act last mentioned are set forth, and are substantially that said grantees should not raise the dam more than 4 feet above the ordinary height of water, should construct therein a suitable lock 120 feet between gates and 24 feet wide for the passage of boats, barges, etc.; the lock to be in readiness at the time of completion of the dam. The grantees were to attend without charge to the passage of boats, barges, etc., through said lock, and they were also required to construct a slide or chute for the passage of rafts over the dam and to permit the ascent and descent of fish. The construction of the dam, lock, slide, and chute was required to be commenced within one year and completed within three years. There were also other provisions relating to the overflowing of lands and a reserved right of repeal. An act of the Legislature of Wisconsin, approved March 15, 1851, is then pleaded. It is averred this act authorized the same persons to build this dam and repealed in part and modified the former act of the territorial Legislature, and contained the following requirements or conditions, namely: The dam should not be raised more than six feet above the ordinary height of water; as soon as Rock river should be improved and rendered navigable to said dam, the grantees should construct a lock 120 feet between gates and 24 feet wide for the passage of boats, barges, etc., and attend the same free of charge. This act declared it was not to be construed to authorize the flowing of lands owned by other persons without the consent of the latter, nor the raising of the water of the river or lake to the injury of mills then erected above the dam, nor so as to affect the rights of any one who might have commenced, or be interested in, the improvement of any water power. It is further averred that after March 15, 1851, Clouden Stoughton and Luke Stoughton commenced the erection of the dam and continued until its completion, and maintained it ever since, but its capacity to hold, raise, and set back water has been increased from time to time, and it is known as the “Indian Ford Dam.”

The complaint avers that the dam has been raised, and is now more than six feet above the ordinary height of water in said stream; that no slide or chute was ever constructed or commenced; that up to about March, 1898, there were eight gates in the dam, each about five feet long and five feet high, so constructed as to be easily opened and closed, and by means thereof the height of water in the river could be regulated; and that up to about the spring of 1898 the height of water was so regulated, but that these gates were permanently closed in March, 1898, and since that time, and apparently by reason of such closing, large tracts of land adjacent to said lake were overflowed, made marshy, inaccessible, and practically useless. About or just prior to the year 1900 the ownersof the dam caused the spaces formerly occupied by such gates to be permanently closed--describing how--narrowed the dam by abutments so that since the year 1900 the waters of the river and lake have been caused to overflow upon 5,000 or 6,000 acres of valuable farming land rendering it largely useless, causing some of the owners to abandon the same, depositing thereon large amounts of filth which contaminated the atmosphere and endangered the health of a large number of people, flooding the cellars of houses in the city of Ft. Atkinson, and affecting the health of the occupants, damaging and rendering impassable many highways, and overflowing the lands of others without their consent causing damage, which is described. In short, the complaint contains averments in this particular showing, if true, the creation and maintenance of a public nuisance. It is averred that many of the residents along said lake and river are the owners of water craft, and desire to navigate the river below the dam, but by reason of the acts aforesaid are unable to do so; while others, resident taxpayers, desire to catch fish in said stream and lake, but by reason of the maintenance of the dam in its condition the fish are unable to pass through or over said dam. It is then averred that the defendant, Pliny Norcross, is the owner of the dam, owner and possessor of the franchise rights and privileges aforesaid granted by the state to Clouden Stoughton and Luke Stoughton, and is now maintaining, operating, and keeping up the dam as before described, contrary to and in violation of the limitations and conditions prescribed by the acts of the Legislature aforesaid, and usurped and intruded into, and now unlawfully holds and exercises the said franchise, and has thereby intruded into and usurped powers and franchises which he has no right to exercise, and is now unlawfully holding and exercising rights and privileges not granted to him or his predecessors or grantors by the state of Wisconsin, without authority of law, and in disregard of the reserved rights of the state, and in contempt of its sovereign authority, and has been doing so for more than two years by maintaining the dam more than six feet above the ordinary height of water in said stream without any lock, slide, or chute therein, by means of said dam overflowing lands not owned by him without the consent of the owners, by raising the water to the injury of mills above the dam, and thereby affecting the rights of others claiming an interest in water powers. The prayer for relief is that the title of the defendant to the franchise created by said legislative acts be declared void and held for naught, and that he be ousted and excluded from claiming, holding, or exercising any of the rights or privileges sought to be conferred by said legislative acts, and that the franchise, etc., granted by said legislative acts be forfeited and reclaimed by and to the state of Wisconsin, and for such other and further relief as may be just.

This complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, and because the action was not commenced within the time limited by law, and because several causes of action had been improperly united. The trial court sustained the defendant's demurrer to the complaint, on the ground that, notwithstanding the averments of the complaint that Rock river is a navigable stream, and in contradiction of such averments, the judge of that court would take judicial notice that the river was not navigable in fact for logs, lumber, timber, or rafts, and that therefore this action could not be maintained. This decision involves two propositions, neither of which we are willing to approve. The first is that upon a question of the kind presented by an assertion of navigability in fact for some public purposes the court could deprive a suitor of trial or hearing and foreclose him upon such inquiry by setting the court's own knowledge or judicial notice in opposition to the averments of his complaint. The second proposition is that, assuming lack of navigability in fact,...