Superior Water, Light & Power Co. v. City of Superior
| Decision Date | 31 May 1921 |
| Citation | 174 Wis. 257,183 N.W. 254 |
| Court | Wisconsin Supreme Court |
| Parties | SUPERIOR WATER, LIGHT & POWER CO. v. CITY OF SUPERIOR ET AL. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Douglas County; James Wickham, Judge.
On rehearing. Former opinion affirmed.
For former opinion, see 181 N. W. 113.
Rosenberry, J., dissenting.T. L. McIntosh, City Atty., and Hanitch, Hartley & McPherson, all of Superior (Louis Hanitch, of Superior, of counsel), for appellants.
Charles R. Fridley, of Superior, and H. L. Butler, of Madison, for respondent.
Memorandum Ordering Rehearing.
Upon a motion for rehearing made by respondent the attention of the court is called to the fact that the complaint in the action challenges the right of the city to acquire that portion of the property of the respondent water company located in the state of Minnesota, and while the question was neither urged nor presented upon the argument or in the briefs, the court is of the opinion that the best interests of the parties will be subserved by a decision upon the following:
Upon any proceedings heretofore taken, or upon any proceedings authorized by law, can the city acquire, under the provisions of the Public Utility Law, or under condemnation proceedings, or in proceedings in the nature thereof, or in any manner, title to that portion of the property of the respondent water company located in the state of Minnesota?
It is ordered that a rehearing upon the specific question above stated, and none other, be, and is hereby, granted. The hearing thereof is set for Friday, May 6, 1921.
Upon motion for rehearing attention was called to the fact that the opinion of the court did not deal with the question whether the city could by proceedings in the nature of condemnation provided for by the Public Utility Law acquire that part of the water company's property located in the state of Minnesota, which issue was tendered by the pleadings, though not dwelt upon in the briefs or the oral argument. Apprehension was expressed on the part of the respondent water company that the mandate of this court directing that the demurrer to the complaint be sustained amounted to res adjudicata upon this question, even though not dealt with in the opinion. The question thus raised is an important one, which would no doubt eventually call for the decision of this court, and, while it would ordinarily reach this court on appeal from the order of the Railroad Commission, the court, believing that the interests of the parties would best be promoted by dealing with the question at the present time, to the end that further proceedings on the part of the city to acquire the waterworks plant should take a course in harmony with the view of this court concerning the power of the city to condemn that portion of the plant, an order was entered granting a rehearing upon the following question:
“Upon any proceedings heretofore taken, or upon any proceedings authorized by law, can the city acquire, under the provisions of the Public Utility Law, or under condemnation proceedings, or in any proceedings in the nature thereof, or in any manner, title to that portion of the property of the respondent water company located in the state of Minnesota?”
In response to that question the water company contends that the proceedings under which the city is attempting to secure title to the property of the water company are essentially proceedings in condemnation; that the city is not confining its efforts in such behalf to the taking of so much of the plant of the water company as is physically located in the state of Wisconsin, but that they extend to and include as well that portion of the plant physically located in the state of Minnesota; that the jurisdiction of this state to condemn property and thereby work a transition of title from the water company to the city does not extend to property located in the state of Minnesota; and that the city should be enjoined from any further efforts to secure title to that part of the plant having its physical location in the state of Minnesota, because of such lack of jurisdiction or power on the part of this state.
[1][2] In the first place, it may as well be conceded that the proceedings under which the city is attempting to acquire title to the waterworks plant are condemnation proceedings. Although the Public Utility Law provides (section 1797m78) that any public utility voluntarily accepting an indeterminate permit shall be deemed to have consented to a future purchase of its property by the municipality in which the major part of it is situate for the compensation and under the terms and conditions determined by the commission, and shall thereby be deemed to have waived the right of requiring the necessity of such taking to be established by the verdict of a jury, and to have waived all other remedies and rights relative to condemnation, and by subdivision 4 of section 1797m79 it is provided that any municipality shall have the power, subject to the provisions of the Public Utility Law, to acquire by purchase, as provided in the Public Utility Law, the property of any public utility actually used and useful for the convenience of the public operating under any indeterminate permit, it was held in Connell v. Kaukauna, 164 Wis. 471, 159 N. W. 927, 160 N. W. 1035, Ann. Cas. 1918A, 247, that proceedings on the part of a municipality to acquire the property of a waterworks company under the provisions of the law just referred to were in the nature of condemnation proceedings. There is much greater reason for saying, and in fact there seems to be little room to doubt, that proceedings on the part of a municipality to acquire the property of a public utility company which has not voluntarily subjected itself to the provisions of the Public Utility Act are in the nature of condemnation proceedings. In view of the ruling made in the Kaukauna Case that such proceedings are in the nature of condemnation proceedings even where the public utility has voluntarily accepted an indeterminate permit, it would seem unnecessary to devote either time or space to demonstrate that the proceedings here in question are in fact in the nature of condemnation proceedings. Neither does there seem to be any room to doubt that this state is without any jurisdiction or authority to condemn propererty beyond its borders and over which it exercises no jurisdiction whatever.
The question with which we are confronted is whether that part of the water plant which reaches across the state line into the waters of Lake Superior, from which the supply of water is pumped for the use of the city, is in fact Wisconsin property. We freely concede at the outset that that question must be answered in the affirmative in order to enable the city to proceed to continue the proceedings now instituted to a successful termination, and that, unless the question may be so answered, the demurrer to the complaint should be overruled.
And right here perhaps a word descriptive of the plant is appropriate, if not necessary, to a thorough understanding of what follows. The city of Superior is located at the mouth of the St. Louis river, at which place the river widens out and has more the appearance and characteristics of a bay than a river. This bay is commonly known as the Bay of Superior, and is about a mile in width. The...
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