Stevens Point Boom Co. v. Reilly

• Decision Date: 31 January 1879
• Citation: 49 N.W. 978,46 Wis. 237
• Parties: STEVENS POINT BOOM CO. v. REILLY ET AL.
• Court: Wisconsin Supreme Court

46 Wis. 237

49 N.W. 978

STEVENS POINT BOOM CO.

v.REILLY ET AL.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Columbia county.

Action by the Stevens Point Boom Company to restrain one Reilly and another from constructing booms in the Wisconsin river. On appeal the case was remitted to the circuit court, (44 Wis. 295,) where defendants moved the court to modify the injunction so that it should read as follows: “It is ordered that said defendants, and each of them, their attorneys, agents, and assistants, and each and every of them, under the penalties by law prescribed, do absolutely desist and refrain from building, constructing, or keeping up and maintaining a boom and piers, or either boom or piers, in and upon the Wisconsin river, between section 32, in township 24, range 8 east, and the north line of township 24 north, in range 7 east, in Portage county. Wisconsin, except where the defendants may have riparian rights in said river, and in such case not to exceed or extend beyond or outside of such riparian rights or limits, and in no case to obstruct the free navigation of said river by any method in which it may be used.” The order of the court was as follows: “It is ordered that the injunctional order herein be modified as follows: (1) That the defendants be permitted to keep up and maintain in the Wisconsin river, opposite said lots 2 and 3, such piers and booms as have been maintained by the occupants of said lots since the erection of the mill thereon in 1873; (2) that the defendants may construct in front of the said land, or in front of any land occupied by them on the shores of said river, proper piers and booms, through the water far enough to reach actually navigable water, to aid in floating logs to market, or otherwise; and, except as herein modified, the said injunctional order is continued in full force.” Defendants appealed. Reversed.E. S. Bragg, for appellants.

G. W. Cate, ( Jones & Sanborn, of counsel,) for respondent.

RYAN, C. J.

This appeal was submitted on printed briefs, and these sufficiently show that the parties regard the appeal as involving some substantial right. An argument at the bar would probably have instructed the court in the nature of such right, and how it is affected by the order from which the appeal is taken. As it is, the court is left very much to conjecture; and, as the previous decisions of the court are here understood, the controversy appears to be rather in the nature of a skirmish of words than a war of things. It may be said, in passing, that of late the bar seems to put less value than the bench on oral arguments of appeals, though the latter rarely fail in throwing light on the dead letter of briefs, however ably prepared. As the question is regarded here, there is little substantial difference between the order submitted by the appellants and the second clause of the order made by the court below. The first clause of the order, however, does not follow the mandate of this court on the former appeal; and the record affords no means of judging why it was introduced, or what effect it is intended to have. The order must therefore be reversed. It is difficult to understand how serious disagreement should have arisen in the construction of the opinion of this court on the former appeal. Boom Co. v. Reilly, 44 Wis. 295. Following Diedrich v. Railway Co., 42 Wis. 248, which in its turn followed Dutton v. Strong, 1 Black, 23, and Atlee v. Packet Co., 21 Wall. 389, it was held that the appellants might “lawfully, until prohibited by statute, construct, in front of their land, proper booms to aid in floating logs, so as not to violate any public law or obstruct the navigation of the river by any method in which it may be used, or infringe upon the rights of other riparian owners. * * * In any case, it must not obstruct the free navigation of the river by floating logs to market, or otherwise. Subject to these conditions, the appellants appear to have a right, as riparian owners, to construct a proper boom from their own premises on the bank of the river.” It seems to be apprehended by the respondents that the form of order submitted by the appellants to the court below would, under the rule so given, have authorized the appellants, in the exercise of their riparian right on both banks of the river, to maintain booms completely crossing the river. This question was not in the former appeal. But the right suggested is expressly excluded by the opinion. No form of order could have that effect. Such boom or connecting booms would more or less obstruct the navigation of the river, and would violate public law. Rev. St. 1858, c. 41, § 2; Rev. St. 1878, § 1596; Barnes v. Racine, 4 Wis. 454;Enos v. Hamilton, 24 Wis. 658. This is not a question of materially impeding navigation, under color of legislative grant, as under chapter 399 of 1876. The general statute forbids any obstruction of the river without permission of the legislature. Booms erected by riparian owners, in aid of navigation, through shoal water far enough to reach actually navigable water, are not within the statute.Such do not obstruct the river, but aid its use. This private right of the riparian owner, as declared in Diedrich v. Railway Co., quoted in the opinion on the former appeal, is subordinate to the public use of a navigable river, and is always exercised at peril...