Underwood Lumber Co. v. Pelican Boom Co.

• Decision Date: 25 February 1890
• Citation: 76 Wis. 76,45 N.W. 18
• Parties: UNDERWOOD LUMBER CO. v. PELICAN BOOM CO. ET AL.
• Court: Wisconsin Supreme Court

76 Wis. 76

45 N.W. 18

UNDERWOOD LUMBER CO.

v.PELICAN BOOM CO. ET AL.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Appeal from circuit court, Waupaca county; CHARLES M. WEBB, Judge.

It appears from the record that Boone lake is situated mostly on section 31, town 37, range 9 E.; that the outlet of said lake is through an arm of the same, southerly, into the Wisconsin river, at or near the line between that section and section 6, town 36, of the same range; that in 1878 the defendants--the Browns and Anderson--owned fractional lots 1 and 11, bordering on said river in said section 6, and fractional lots 4, 5, and 6, bordering on said lake in said section 31; that in 1878 Stewart and others, without any express authority from the state, constructed a dam about 12 feet high, across said river, on lands belonging to the said Browns and Anderson, in said section 6, and kept up and maintained the same until it came into the possession of the Browns and Anderson, in 1882; that, on or about March 25, 1882, the said Browns and Anderson made, signed, and acknowledged written articles of incorporation of the defendant “Pelican Boom Company,” under chapter 86, Rev. St., and the several acts amendatory thereof, “for the purpose of improving a portion of the Wisconsin and Pelican rivers and Lake creek, and the lakes and streams tributary to said Lake creek, and being tributaries of the said Wisconsin river at and near Pelican Rapids, * * * and for the purpose of storing, sorting, and delivering thereon saw-logs” and timber, “and for storing, holding, and handling logs and timber, and to facilitate the running thereof,” within the territory described; that said corporation was so organized without stock, but with the usual officers, duties, and powers; that April 7, 1882, by chapter 247, Laws 1882, the said Browns and Anderson, “their heirs and assigns,” were expressly “authorized and empowered to build, erect, keep up, and maintain a dam, not exceeding six feet in height, to be used for manufacturing and booming purposes, across the Wisconsin river, on the north half of” said section 6, and not more than 100 feet from said Stewart dam, provided that the same should “not raise the water in said river at the mouth of the lake * * * to exceed two feet,” and to contain a slide or chute to allow “logs, passing over it, to freely pass down the river;” that, in and by said act, the said Browns and Anderson, “their heirs and assigns,” were expressly “authorized and empowered to build, erect, keep, up, and maintain, in connection with said dam, a system of piers and booms, in and along and across said river, on sections 6 and 31 aforesaid, on and opposite lands owned by them, for the purpose of dividing, booming holding, sorting, and handling logs, timber, and lumber,” to be constructed as prescribed, and subject to alteration, amendment, and repeal; that March 7, 1887, the Browns and Anderson, by warranty deed, conveyed to the Pelican Boom Company, it successors and assigns, “all their shorage, riparian, marginal, and flowage rights and easements in and to all” the lands described, adjacent to the Wisconsin river and its tributaries, above and to the northward of said dam, on lot 11 in section 6, and also lots 2, 3, 4, 5, and 8 in said section 31, and 3 mill lots, described in Rhinelander, with the right and privilege in said lands to overflow the shores and banks of said river and its tributaries on said lands, and to use said shores for the purpose of booming, driving, and dividing logs, and in constructing and maintaining booms and piers; that April 23, 1887, by chapter 253, Laws 1887, the said Browns and Anderson, “their heirs and assigns,” were expressly “authorized and empowered to build, erect, keep up, and maintain a dam not less than 12 feet in height, to be used for manufacturing, booming, and flooding purposes, across the Wisconsin river” on said section 6, with power to them, “their heirs and assigns,” to overflow all such lands as might be necessary for such purposes, and to acquire title to all such lands by condemnation proceedings, as prescribed in section 1777, Rev. St., as amended by chapter 318, Laws 1882, and also “to build, erect, keep up, and maintain, in connection with said dam, a system of piers and booms in, along, and across said river,” in said section 6, “and from the present dam” to the north line of said township 37, “in and opposite lands owned or acquired by them” for said purposes, and as prescribed; that “all logs and timber destined to points on said river below said dam shall be taken by the owner or owners of said dam, when they reach the flowage thereof, and shall be driven by said owners, free of charge and with reasonable dispatch, through the pond and flowage created by said dam, and over the same;” that the owners of the dam should not be entitled to compensation for the use of said dam, or the waters of such pond, for flooding purposes, as therein provided; that said act should “be applicable to and govern the owners of the dam” aforesaid, and that said dam should thereafter “be kept up and maintained only under the provisions and restrictions” of said act; that on or about December 26, 1887, said articles of incorporation, so made, signed, and acknowledged in 1882, were amended, and, among other respects, so that the capital stock of said corporation should be $50,000, divided into 100 shares, of $500 each, and at least one share to be purchased and held by each member thereof; that on or about December 28, 1887, in consideration of $12,500 in the said capital stock of the said Pelican Boom Company, the said Browns and Anderson, respectively, with their wives, conveyed to said company “all the interest” they had, possessed, or might “be entitled to, in the booms, piers, dam, works, and improvements, and all rights, interest, and property connected therewith and pertaining thereto, made, erected, or used by the Pelican Boom Company,” as aforesaid; that, since the organization of the plaintiff corporation in 1887, it has been the owner of several thousand acres of pine timbered lands, which timber was capable of being put into said Wisconsin river and its tributaries, and driven into said booms and pond formed by said dam; that the plaintiff, in 1887, contracted with a firm to furnish, at the mill of such firm at Rhinelander, 40,000,000 feet of such timber, to be manufactured into lumber for the plaintiff during the years 1887, 1888, 1889, and 1890; that during 1887, the boom company “divided, sorted, boomed, and delivered to the plaintiff, at said mill” of said firm, about 5,000,000 feet of logs, for which it charged and exacted, as a condition of such delivery, and the plaintiff, before the commencement of this action, paid, 35 cents per thousand feet therefor; that April 12, 1888, and before the season for booming logs that year commenced, the boom company resolved thereafter to charge 40 cents per thousand feet for booming logs during the year of 1888, and a notice to that effect was thereupon published in a newspaper at Rhinelander, and served upon the plaintiff; that thereupon, and on April 13, 1888, the plaintiff delivered to the boom company a notice in writing in effect requesting the boom company to “stop, assort, divide, and deliver, to Baird & Robbins' mill, all” its logs bearing the marks named therein; that thereafter, and during 1888, and before the commencement of this action, September 20, 1888, the plaintiff cut, logged, and drove down the Wisconsin, to said boom company's dividing works, about 15,000,000 feet of logs, and the said boom company had divided, sorted, and delivered to the plaintiff at said mill nearly ten and a half million feet thereof; that the plaintiff had paid thereon $3,307.92; that the boom company exacted and demanded, for the logs so divided, sorted, and delivered during 1888, 40 cents per thousand feet, and declined to take less. Thereupon, and on September 20, 1888, the plaintiff commenced this suit in equity, alleging, in effect, that the plaintiff was compelled to pay and did pay to the said boom company, for such dividing, sorting, booming, and delivering during 1887, an excessive amount and an unreasonable rate of...