State v. Sutherland

Citation166 Wis. 511,166 N.W. 14
PartiesSTATE v. SUTHERLAND.
Decision Date05 January 1918
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Rock County; Chester A. Fowler, Judge.

Action by the State against George C. Sutherland. Judgment dismissing complaint, and plaintiff appeals. Affirmed.

Action brought by the Attorney General to abate as a public nuisance a building standing on piles in the bed of Rock river, at Janesville, Wis. The complaint alleged that the defendant, without any authority or permission from the Legislature, had erected in the bed of Rock river a building supported by piles and piers of concrete and stone, and had filled in from the west bank of the river at the west end of the Milwaukee street bridge, and that the structures so erected constituted obstructions in the river, and set forth the fact at length that other structures had been erected therein in like manner, the situation being shown by the map hereto attached.

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The building sought to be abated is that marked upon the map George Sutherland.” It is on the southerly side of Milwaukee street and near the westerly shore of Rock river.

The complaint alleged generally that the buildings were of frame construction, highly inflammable; that the maintenance of the piles, piers, walks, and other obstructions in the river interfered with navigation and constituted an obstruction to the use thereof, and that the maintenance of the same caused damage to the adjacent property owners, and was a menace to the safety of the general public and constituted an unlawful obstruction and a general nuisance; that in June, 1913, a complaint was filed with the railroad commission, and that after due hearing the railroad commission filed its findings to the effect that the various structures constituted an obstruction to navigation and had a tendency to narrow the channel of the river; that the suit was begun by direction of the Governor, and the prayer was for the abatement of the buildings constructed by the defendant and for an injunction restraining him from constructing or maintaining any building or other obstruction in said river.

The defendant answered, admitted ownership of the building, and denied that any part of it was in the bed of said Rock river and in the navigable portion thereof; alleged that the river at the point in question had never been a navigable stream; alleged that in 1890 the defendant purchased the lands described in the complaint, and relying upon decisions of courts of competent jurisdiction to the effect that the property could be used for business purposes, and that the premises were not a part of the public way and were not navigable in fact, buildings were so erected as not to in any way interfere with the flow of any water on said premises or to interfere with the right of any person to fish or to use said waters for hydraulic or other purposes; alleged that the filling in question was a boundary line fixed by the common council of the city of Janesville; admitted that none of the buildings so erected was placed there by permission of the Legislature of the state of Wisconsin or any department of the United States; admitted that the buildings were of frame construction; denied that they were highly inflammable, and denied that the maintenance of the piles, piers, walls, and buildings in said river interferes with navigation or constitutes an obstruction to the use of the river, or that the maintenance of the building caused any damage to adjacent property owners, or that the building is a menace to the safety of the public or constitutes a public nuisance.

A large amount of testimony was taken upon the trial, and the court made and filed its findings of fact as follows:

(1) That the Rock river is in fact navigable and navigated as particularly recited in the opinion filed herewith, which recitals in that regard are hereby made a part hereof, and is not otherwise navigated or navigable.

(2) That the defendant is the owner in fee of a tract of land within the city of Janesville extending to and bordering on the said river, particularly described as in the complaint alleged.

(3) That on said tract there is and was at the time of defendant's purchase thereof a business block as in the complaint alleged, the easterly foundation wall of which rests within the original low-water line of said river; that adjacent to said building, on the easterly and river side thereof, the defendant, without legislative authority, erected, upon piles driven into the bed of the stream, the store building described in the complaint, which is situated entirely over the bed of said river, but which does not extend beyond the center or thread of said stream, and which cost approximately fifty thousand dollars, and is constructed as in the complaint alleged; that a bridge extends across said river adjacent to defendant's building, and that other buildings are located over said stream opposite defendant's building on the other side of said bridge and stand upon piles, all as in the complaint alleged; and that the owners of the fee of the bed of the stream easterly of defendant's building and on the same side of the bridge intend to erect buildings over said stream the entire width thereof.

(4) That defendant's said building is not an obstruction to any navigation existing, contemplated, or reasonably to be expected upon said stream.

(5) That defendant's building, by reason of the general situation existing, does to some extent enhance the possibility of injury to public and private property by flood and fire; but, except in case of conjunction of flood and fire, it no more increases possibility of injury from fire than does every other building of similar construction within the business district of said city, and excepting as aforesaid does not increase the possibility of injury from any flood such as had occurred at said city since 1840, or such as there is any known precedent of in the Rock river valley; and that any such injury is not imminent, and it is not reasonably certain that any such will ever be caused or contributed to by defendant's said building; and the defendant's said building is not a menace to the safety of public or private property or to the safety of the public in any respect.

(6) That, prior to erection by defendant of his said building, it was declared by the Supreme Court of the state of Wisconsin, in two certain cases prosecuted therein entitled State v. Carpenter and Janesville et al. v. Carpenter, upon facts considered by said court as existing in no material matters different from the facts herein found to exist, that the erection and maintenance over the Rock river at Janesville, by riparian owners and those acquiring therefrom title to the bed of the said river, of buildings in no material way different from defendant's building in location, foundation, and construction, were lawful, and that such buildings did not constitute a nuisance either as obstructions to navigation or as enhancing dangers to the public from flood and fire; and the defendant, in erecting said building, relied on the law respecting said matters being as declared in said causes; and that other riparian owners at Janesville and various other cities upon said river have erected buildings upon piles over said river, in the aggregate of a great value, apparently relying upon the law as so declared.”

The part of the opinion referred to in the first subdivision of the findings of fact is as follows:

“That the Rock river is by law a navigable stream everybody knows. Everybody also knows that it is in fact navigable to some extent, and also knows pretty accurately what that extent is. A vast amount of testimony was adduced which shows pretty clearly that what everybody knows respecting the matter is in fact true. These matters may be briefly stated as follows:

There are many acts of the Legislature, both public and private, declaring and recognizing that the Rock river at Janesville is a navigable stream. It is navigable throughout its source from Lake Koshkonong south for canoes and skiffs, if they be carried around numerous dams. It is actually so navigated by such a boat going down stream not exceeding once in a dozen years or so, in the pleasurable reversion of some ‘back to nature enthusiast.’ It is not now navigated and is not in its present condition capable of being navigated throughout such portion of its course by any other kind of boat or by logs or by any kind of raft. On such part of its course there is no through commerce whatever, and the conditions of the adjacent country and the requirements of commerce are such that there will never be any through commerce on the stream as long as existing railroads are operated and other overland highways exist. The river is navigable for and is in fact navigated by small motor boats between or for a distance above dams at various places along said portion of its course, and at such places is not otherwise navigable. Above the upper dam at Janesville it is so and not otherwise navigable and navigated. Between the upper and lower dams at Janesville, where defendant's building is situated, it is navigable for skiffs and canoes and small motor boats drawing a foot or eighteen inches of water, and is not otherwise navigated or navigable. There has been no navigation of any sort, except as here expressly stated, for many years, and none other is contemplated, and none other is reasonably to be expected.

The building of defendant that is complained of is upon piles and is built over the water of the river. It seems to me very plain that the building does not at all obstruct or interfere with navigation of any considerable nature, and that it does not obstruct or interfere with such navigation as the river at the place is capable of being used for to any substantial or appreciable extent. With the building as it is, there is ample room outside the building for the passage of any and all craft the...

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6 cases
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    • January 10, 1928
    ...v. Pettibone, 2 Wis. 308;Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61;Reysen v. Roate, 92 Wis. 543, 544, 66 N. W. 599;State v. Sutherland, 166 Wis. 511, 521, 166 N. W. 14, and cases there cited (page 522 ). This rule carries with it the right to separately sell title to the submerged land ......
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    ...247, 256, involving permission by federal authority; McDonald v. Apple River P. Co., 160 N. W. 156, 164 Wis. 450, 456;State v. Sutherland, 166 N. W. 14, 166 Wis. 511, 524; Water Power Cases, 134 N. W. 330, 148 Wis. 124, 145, 38 L. R. A. (N. S.) 526;Town of Dekorra v. W. R. P. Co., 205 N. W.......
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    ...that navigation shall be free to the public, together with such other public uses as usually pertain to public waters. State v. Sutherland, 166 Wis. 511, 166 N. W. 14, and cases there cited. The judgment of the circuit court is affirmed. a1. For opinion denying rehearing, see 229 N. W. ...
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