State v. Sensenbrenner
| Citation | 53 N.W.2d 773,262 Wis. 118 |
| Parties | STATE, v. SENSENBRENNER. |
| Decision Date | 03 June 1952 |
| Court | Wisconsin Supreme Court |
This is an action for recovery of a forfeiture for alleged violation of sec. 31.23(1), Stats., and for abatement of a nuisance, commenced by service of summons and complaint December 17, 1950. The defendant is the riparian owner of land on both sides of Ox Bow Creek, which is the navigable outlet stream for Anna Lake, a meandered and navigable lake in Vilas county. Since 1947, this outlet has been obstructed by a beaver dam located on the property of the defendant. The Conservation Commission removed the dam in 1949, but it was rebuilt in 1950 and the defendant has thereafter refused permission to employees of the Conservation Commission to enter upon his lands to remove the dam.
The beaver dam backs up the water in the outlet stream so that the levels of the lake are higher than they would be without such obstruction, and the owners of lands abutting on the lake claim that their property has been damaged as a result of such rise in the lake level.
On August 2, 1950, the Wisconsin Public Service Commission conducted a hearing to determine and fix the normal water level of Anna Lake, and under date of August 18th, such commission entered an opinion, findings of fact, and an order by which the normal level of Anna Lake was determined and fixed at eight inches below the top of a certain private pier maintained in said lake by one of the riparian property owners. The state's complaint in the instant action alleges that the obstruction maintained by the defendant in the outlet stream has raised the level of Anna Lake above the level so fixed by the Public Service Commission in its order of August 18, 1950. The answer of the defendant denied that he had placed or maintained any obstruction in the outlet stream.
The state moved for summary judgment and in support of such motion filed affidavits of a conservation warden and another employee of the Conservation Commission, which affidavits stated that affiants had requested permission of the defendant to remove the beaver dam, and that defendant had refused such permission. The state in support of its motion for summary judgment also submitted a certified copy of the order of the Public Service Commission determining the normal level of the lake, and a certified transcript of the testimony taken before the commission. The only counter-affidavit filed in behalf of the defendant was one by his attorney stating that the defendant denies that he has maintained a beaver dam on the outlet stream in violation of statute, and that such beaver dam is a natural obstruction. Such counter-affidavit also stated that the defendant had permitted the Conservation Commission to come in and remove the beaver, and after such removal the defendant had never by any affirmative act continued to maintain the structure which remained.
The trial court granted the state's motion for summary judgment, holding that the counter-affidavit presented only an issue of law, and not of fact. Judgment was entered under date of August 20, 1951, adjudging that the state recover from the defendant forfeiture in the sum of $100 pursuant to sec. 31.23(1), Stats., together with costs, and that the beaver dam be abated and removed forthwith by the defendant. From this judgment the defendant has appealed.
Sweberg & Kruschke, Rhinelander, for appellant.
Vernon W. Thomson, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., for respondent.
The question presented on this appeal is whether the provisions of secs. 31.23(1) and 31.25, Stats., are applicable to a beaver dam erected in a navigable stream by the action of beaver unaided by any affirmative act of the riparian owner. The applicable portions of these two statutes are as follows:
Sec. 31.23(1) 'Every person or corporation that shall obstruct any navigable waters and thereby impair the free navigation thereof, or shall place therein or in any tributary thereof any substance whatever that may float into and obstruct any such waters or impede their free navigation, or shall construct or maintain, or aid in the construction or maintenance therein of any bridge, boom or dam not authorized by law, shall forfeit for each such offense, and for each day that the free navigation of such stream shall be obstructed by such bridge, boom, dam or other obstruction, a sum not exceeding fifty dollars.'
Sec. 31.25 'Every dam, * * * constructed or maintained in or over any navigable waters of this state in violation of the provisions of this chapter or of chapter 30, and every dam not furnished with a slide, chute or other equipment prescribed by the commission, is hereby declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any citizen thereof.'
It is our conclusion that the words 'maintain' and 'maintained' as used in secs. 31.23(1) and 31.25 have reference to a dam which was man-made in its origin, or, if not so made but was originally erected through a natural cause, such as beaver, then some affirmative act on the part of the riparian owner to assist in its maintenance is required in order that such statutes apply. An obstruction in a navigable stream is in the nature of a nuisance, and the word 'nuisance' as appearings in sec. 31.25 should be construed in the light of the applicable common law principles relating to obstructions in streams.
In Mohr v. Gault, 1860, 10 Wis. *513, *517, 79 Am.Dec. 687, there was involved the obstruction of the outlet stream of a lake claimed to be occasioned by the washing of the earth from the banks of the stream and the depositing of such earth in the stream thus causing the level of the lake to be raised so as to flood the lands of the adjacent owner. Mr. Chief Justice Dixon, in his opinion, stated:
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