Town of Marion v. S. Wis. Power Co.

• Decision Date: 12 April 1926
• Parties: TOWN OF MARION v. SOUTHERN WISCONSIN POWER CO.
• Court: Wisconsin Supreme Court

189 Wis. 499

208 N.W. 592

TOWN OF MARION

v.SOUTHERN WISCONSIN POWER CO.

Supreme Court of Wisconsin.

April 6, 1926.

Dissenting Opinion April 12, 1926.

Appeal from Circuit Court, Juneau County; Emery W. Crosby, Judge.

Action by the Town of Marion against the Southern Wisconsin Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Eschweiler, Rosenberry, and Doerfler, JJ., dissenting.Schubring, Ryan, Clarke & Petersen, of Madison, for appellant.

Olin & Butler, of Madison, for respondent.

OWEN, J.

The defendant is a corporation organized, among other things, for the purpose of generating and transmitting electric current for public purposes. It owns and operates a hydroelectric plant and dam on the Wisconsin river at the village of Kilburn, under and by virtue of the provisions of chapter 462, Laws 1901. This action is brought by the plaintiff town to recover moneys alleged to have been expended by said town in repairing damage suffered by the highways in said town by reason of the maintenance of said dam in holding back the waters and causing the overflow of said highways. The defendant appeals from a judgment rendered in favor of the plaintiff, and contends that no legal obligation rests upon the defendant company to recoup the town for damages thus sustained.

The argument of appellant's counsel is based upon many fundamental principles, the correctness of which is conceded. Their reasoning is cogent and persuasive. But there is something wrong with any line of reasoning which leads to the conclusion that a power company, organized and engaged in business for profit, may overflow and damage the highways of a town without incurring any liability therefor. Such a conclusion is offensive to an intuitive sense of justice. It has never received the sanction of any court.

Assuming that the Legislature has the power to authorize a company such as the defendant to overflow the highways of the state and to grant to such corporation complete immunity from liability therefor, the manifest injustice of such action raises the strongest presumption against any such legislative purpose, and requires clear, affirmative expression of such a legislative intent.

In Massachusetts, it was contended that the Milldam Act authorized owners of milldams to overflow public highways, and the fact was pointed out that the Milldam Act contained no express provision for the compensation of the public for damages resulting from such overflow. The court disposed of this contention by saying:

“There being no provision for an indemnity to the public, it seems manifest that no encroachment on the public rights was intended to be sanctioned.” Inhabitants of Andover v. Sutton, 12 Metc. (53 Mass.) 182, 187.

[1] In considering the exact contention here made by appellant, the Supreme Court of South Carolina in Edgefield County v. Georgia-Carolina Power Company, 88 S. E. 801, 104 S. C. 311, said:

“But such intent will not be lightly inferred; the intent to do so must be a necessary implication of the words of the grant and the purpose of the grant.”

These are the only cases cited to our attention which seem to have any direct bearing upon the question here involved, and we think they state the proper rule by which the legislative intent should be tested. The burden of maintaining highways rests too heavily upon taxpayers to justify a presumption that the Legislature intended to add to those burdens for the benefit of private interests.

Before turning to the act authorizing the construction of the dam, which it is claimed grants immunity for damages caused to highways, it is proper to reflect that during the history of our state the Legislature has authorized the construction of innumerable dams upon our public waters, which, while ostensibly for the purpose of promoting navigation, were in reality for the purpose of promoting private enterprise. An examination of forty or fifty of such charters discloses but one (chapter 180, Laws of 1903) which makes any reference to the liability of the dam owner for damages to highways resulting from the operation of the dam. Nevertheless there is reason to believe that the beneficiaries of all such grants have assumed that they were liable to towns for damages resulting to highways by reason of the maintenance and operation of the dam. One reason for this assumption is that very few cases have reached this court involving the liability of a power company for such damages, and the thought is not to be indulged that such manifest injustice would be suffered by the various towns of the state, the highways of which must have been damaged by reason of such operations, without a protest reaching this court. But two such cases have come to this court. One is the Town of Levis v. Black River Improvement Co., 81 N. W. 669, 105 Wis. 391. From that case it appears that the Black River Improvement Company assumed that it was liable for such damage and entered into a contract with the town to compensate it for damages resulting to the highways of the town by reason of the maintenance of its dam. The other case is the Town of Dekorra v. Wisconsin River Power Co., 205 N. W. 423, 188 Wis. 501, where it also appears that this defendant assumed that it was liable for such damages and contracted with the town to construct a new road, laid out in lieu of one overflowed by the backwaters of this very dam.

Thus there is reason to believe that, until a very recent date, there has been a common understanding, not only on the part of the public and public officials, but on the part of the grantees of such franchises as well, that all dam owners acting under grants similar to chapter 462, Laws 1901, were liable for damages to highways resulting from the maintenance and operation of their dams. While we concede that there is nothing binding or conclusive about this assumption, such conduct approaches a practical construction of such grants, is not without weight in considering the legislative intent as revealed by the terms of these grants, and may furnish a reason for the legislative silence concerning the liability of such grantees for such damages. In this attitude of mind we turn to the grant, under the authority of which defendant maintains its dam.

[2] By section 2 it is declared that:

“In case it shall be necessary to take, flow or injure any lands and property, or either thereof, for the purpose or purposes of the construction or use of the dam [the grantee shall be subject to the provisions and entitled to all the benefits and remedies of chapter 146, Stats. 1898].” (The Milldam Act.)

By section 3 of the act it is further provided that for the purposes of acquiring the necessary lands, easements, or privileges in lands necessary for flowage said grantees may enjoy the rights granted to and conferred upon corporations by sections 1777 to 1777e, both inclusive, of the Statutes of 1898, and also by sections 1850 to 1857, both inclusive, of the Statutes of 1898, and such amendments as may have been made to any of said sections. Sections 1777 to 1777e, inclusive, relate to the powers, duties, and liabilities of corporations organized for the improvement of any stream and driving logs therein, while sections 1850 to 1857 relate to the exercise of the right of eminent domain by railroad companies. The effect of these provisions is to confer upon the defendant company burdens, privileges, and remedies of the Milldam Act and the usual powers of eminent domain, in order to enable it to procure title to lands and property necessary for it to take, flow, or injure in the prosecution of its enterprise.

It is claimed that none of these statutes confer the right to take property belonging to the state; that the highways belong to the state, that the grant contemplated that highways would necessarily be overflowed by the construction and maintenance of the dam as authorized, and that, by the failure of the act to provide for the taking of property belonging to the state, the Legislature must have intended to permit the taking and flowing of any land and property belonging to the state. This was the holding in Black River Improvement Co. v. La Crosse Booming & Trans. Co., 11 N. W. 443, 54 Wis. 659, 41 Am. Rep. 66, where, in order to construct a dam, it was necessary to take a certain piece of real estate belonging to the state of Wisconsin. It appeared in that case that the construction and maintenance of the dam, as authorized by the Legislature, was impossible, without taking this real estate belonging to the state. It was necessary to hold, therefore, either that the state had consented to the use of this property, or to hold that it was impossible for the grantees to build the dam as authorized. The court held that, in view of the fact that the Legislature knew that the construction and maintenance of the dam would involve the taking of this property belonging to the state, it must be assumed that the Legislature intended to permit the use of the property without compensation.

[3] We have no quarrel with that holding, but we do not think it has any application here. There is a wide difference between real estate to which the state holds title in fee simple and the highways of the state. It may be granted that the Legislature has full control over the highways of the state, that it may lay out highways, and that it may abandon highways. But it has no such thing as title in fee to a highway. It may well be that whatever title the public has in a highway rests in the state. But that is a question which we do not deem it necessary to consider. The public has no title to a highwaywhich is subject to the exercise of the sovereign right of eminent domain. The fact that the right of eminent domain cannot be invoked by the defendant to acquire the right to overflow highways does not argue that the state intended to grant such right without requiring the beneficiaries of the grant to...