State v. Adelmeyer

• Decision Date: 03 March 1936
• Citation: 265 N.W. 838,221 Wis. 246
• Parties: STATE v. ADELMEYER ET AL.
• Court: Wisconsin Supreme Court

221 Wis. 246

265 N.W. 838

STATE

v.ADELMEYER ET AL.

Supreme Court of Wisconsin.

March 3, 1936.

Appeal from a judgment of the Circuit Court for Dodge County; C. M. Davison, Judge.

Modified and affirmed.

The action was brought on June 2, 1934, by the State of Wisconsin, as plaintiff, against Frank Adelmeyer, Phillip Bachuber, Annie Barnes, and 233 other persons as defendants, for the purpose of obtaining a declaratory judgment determining the rights of the parties in the area known as the Horicon marsh. More particularly, the action sought to determine the right of plaintiff to maintain permanently by means of a dam certain water levels on Rock river previously determined by the Wisconsin Railroad Commission (now the Wisconsin Public Service Commission).

The action was tried to the court without a jury. Findings of fact and conclusions of law were made and entered. By judgment entered on August 21, 1935, it was adjudicated that the plaintiff, State of Wisconsin, has no right to maintain the water levels as determined by the Railroad Commission until plaintiff shall have acquired by purchase or condemnation the right to flow the lands of defendants.

Such facts as are material to a determination of issues will be stated in the opinion.James E. Finnegan, Atty. Gen., A. H. Smith, Sp. Asst. Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., for the State.

Thompson, Myers & Helm, of Racine, Richmond, Jackman, Wilkie & Toebaas, of Madison, George A. Hartman, of Juneau, B. J. Husting and Robert P. Pike, both of Mayville, Healy & Healy, of Beaver Dam, John A. Thiel, of Mayville, and Paul A. Hemmy, Jr., of Juneau (Eugene A. Clifford, of Juneau, of counsel), for respondents.

WICKHEM, Justice.

This appeal brings to the court another chapter in the long history of litigation with reference to the Horicon marsh area.

This marsh is located largely in Dodge county but extends partially into Fond du Lac county. The main body of the marsh is about 13 miles long from north to south and has a varying width of about 1 to 4 miles from east to west. It appears to have been caused by some sort of glacial dyke lying athwart the Rock river in the vicinity of the city of Horicon, causing the waters of the river to spread out and to create a marsh.

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The Horicon marsh was originally surveyed by government surveyors during the years 1836 and 1837. No part of Rock river north of the city of Horicon was meandered and none of the waters of the marsh were meandered or returned as navigable to the land department by the government land surveyors. By act of the territorial Legislature of 1839, however, the channels of the Rock river from Horicon north to the north line of Dodge county were declared to be navigable. A short distance north of the city of Horicon, Rock river divides into an east and a west branch, the junction of these branches being in the marsh area.

By authorization of an act of the Legislature, a power dam was built at Horicon about the year 1844 and rebuilt in 1848. The owners of this dam, however, did not acquire flowage rights and in consequence of legal action on the part of landowners, this dam was removed in 1868. See Zweig v. Horicon Iron & Mfg. Co., 14 Wis. 356, 357. Prior to 1868, a dam was erected at Hustisford which is located about 10 miles south of Horicon. This dam backed up the waters of the Rock river and created a body of water lying between Horicon and Hustisford, known as Lake Sinissippi.

In the year 1890, the Diana Shooting Club was organized and acquired hunting leases on about 5,200 acres of marsh land in the southern part of Horicon marsh. Due to the removal of the dam at Horicon, there was very little water in this part of the marsh during the hunting season, and for the purpose of providing enough water so that hunters could use boats in the territory, the Diana dam was erected and had the effect of raising the water level from 25 to 30 inches. This structure was maintained until 1913, although in 1906 portions of the dam had been dynamited at the instance of landowners. In 1913, it was removed as an incident to drainage operations hereafter to be described.

At or before the erection of the Diana dam, another dam had been erected further north across the east branch of the Rock river and had backed up the waters of this branch in the vicinity of Malzahn's Bay. Shortly after the erection of the Diana dam, the Horicon Shooting Club, which had hunting leases further north, had difficulty navigating their hunting grounds and erected another dam across the west branch of the Rock river, which dam existed until the drainage ditches were dug. The effect of this dam was to raise the waters in the vicinity of Long Lake about 12 inches.

Beginning with 1880 and extending down to the time of the drainage operations, landowners, even with the several dams then in existence, were able to cut large quantities of hay off the Horicon marsh. This was true of the lands covered by the Diana leases. The land was in such shape that during the hunting season prairie chickens could be hunted by driving out on the marsh various distances from shore, and during these years there was no water on the surface of the ground. Beginning about 1905, a project was initiated to drain Horicon marsh and proceedings to organize a drainage district were instituted. In 1907, a detailed survey of the marsh was made. The areas of water were indicated upon this map. The total area of water as indicated by the map was 2,080.9 acres. The drainage district contemplated the removal of the dam at Horicon and the draining of back water resulting from its maintenance. The execution of this plan would have resulted in the draining and destruction of Lake Sinissippi.

Upon proceedings being instituted, this court held, in the case of In re Horicon Drainage District, 136 Wis. 227, 116 N.W. 12, that the project contemplated the impairment and destruction of a navigable body of water and that no such power existed under the drainage laws in the absence of express legislative authority conferred upon the drainage commissioners in plain and unambiguous terms. It was held that while Lake Sinissippi had been artificially formed by the Hustisford dam, it must be deemed by reason of its maintenance in that condition for forty years to be a navigable body of water and beyond the power of the drainage commissioners to destroy as an incident to drainage operations. The proceedings to form a drainage district were consequently dismissed.

Thereafter, beginning with the year 1910, landowners in the region of the marsh dug a system of ditches now in existence on Horicon marsh, and pursuant to certain specifications, cleared out, deepened, and widened the channel of Rock river through the city of Horicon. These operations consisted of the digging of a main ditch beginning 1 mile north of the north line of Dodge county and extending southerly, and the digging of laterals wherever requested by the landowners to intercept streams flowing into the marsh from the uplands. These streams had well-defined banks before entering the marsh, but thereafter spread over the surface and became surface waters. The glacial dyke or ledge which prior to the dredging operations existed across the bed of the stream at the city of Horicon and which probably was the principal cause of the creation of the marsh, was removed. The effect of the drainage operations and the removal of this ledge was to lower the ordinary water level of Horicon marsh about 1 foot, and the dredging operations facilitated and accellerated the passing of flood waters over the marsh.

In 1925, the dam at Hustisford was raised 18 inches, and this has tended to offset the effects of the ditching operations. As a result of the ditching, however, the riparian owners and the owners of bordering land were able to cultivate their lands more effectively and the lands have since been used for pasturing, raising hay, and in several instances growing other crops requiring cultivation.

Section 1596-53, Stats.1913 (enacted by chapter 755, Laws 1913) provided:

“The improvement of the navigation of all navigable waters of this state, and the construction, maintenance, or operation of dams and other structures now or hereafter constructed therein for any purpose whatsoever shall be under the supervision of the commission [Railroad Commission]. * * * The commission, in the interest of navigation, other public rights, and of the public welfare and safety, shall have power to regulate and control the level and flow of water in all navigable waters in this state.”

This act was in force prior to and after the completion of the dredging although it was repealed in 1915.

In 1913, certain taxpayers and residents of the cities of Horicon and Mayville petitioned the Railroad Commission, representing that the drainage project was changing the course, lowering the level, destroying the headwaters and navigation of Rock river, draining out the lake that forms the headwaters of the river, destroying hunting and fishing, and causing the river to become stagnant. After a hearing, the commission found: (1) That by reason of the drainage work deeper water will be insured at Horicon at all times and navigation improved; (2) that although the current may become slow at times, no unhealthful or unsanitary condition will result; (3) that in view of benefits which will accrue through increased farming area tributary to Mayville and Horicon, the project is not subject to condemnation as injurious to public rights or safety. As a result of these conclusions, the petition was dismissed.

The 1927 Legislature enacted chapter 475, Laws 1927, now section 29.571, Stats., which provides as follows:

“(1) A wild life refuge, game preserve and fur farm shall be established on the Horicon marsh in Dodge county under the supervision of the conservation commission. * * *

(3) The conservation commission shall purchase or acquire by condemnation...