OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court of Eau Claire County; James Wickham, Circuit Judge.
Condemnation proceeding by Eau Claire County to acquire land for flowage purposes in maintaining a dam constructed by the county. From an award of the commission appointed to appraise damages, Vaudreuil Lumber Company, and others, appealed to the circuit court, and from an adverse judgment of the circuit court, the Vaudreuil Lumber Company and another appeal.-[By Editorial Staff.]
Affirmed.
This was a condemnation proceeding commenced by the petition of Eau Claire county. The plaintiffs-appellants appealed to the circuit court for Eau Claire county from the award of the commission appointed to appraise the damages for land taken by the defendant county for flowage purposes in maintaining a dam constructed on the Eau Claire River in Eau Claire county, known as the “Altoona Dam”. Case was tried to the court, a jury having been waived. The amount of damages was stipulated. Plaintiffs objected to the right of the county to acquire the flowage rights, and moved to dismiss the proceedings. The court made the following findings of fact and conclusions of law:
“As Findings of Fact the Court Finds:
“1. The damages sustained by the plaintiffs by reason of the taking of their lands for flowage purposes are as follows:
“Vaudreuil Lumber Company, owner, and Lumbermens' National Bank, mortgagee, $250.00.
“Elsie Hempelman, owner, and Fred R. Stanton, mortgagee, $245.00.
“Rose P. Patrick, $100.00.
“2. On the application of Eau Claire County to the Public Service Commission for a permit to construct the dam, a public hearing was held on November 5, 1937, at the office of the Commission pursuant to section 31.06 of the Statutes. The permit was issued by the Commission on November 9, 1937. The permit states that ‘the purpose of the proposed dam is to create a pond for recreation, the conservation of water, fish, game and wild life.’
“3. The dam was constructed between November 9, 1937, and February 25, 1939, in the manner authorized and described in the permit, and so as to maintain the elevation of the water in the pond at the height authorized by the permit. Since the dam was constructed, it has been operated and maintained by Eau Claire County. The County owns the land on which the dam is located and has also acquired, by contract and purchase, flowage rights on all lands necessary for the maintenance of the dam, aside from the two hundred acres of land of the plaintiffs involved in these cases.
“4. The dam was constructed by the Works Progress Administration, a Federal agency, under a contract made with Eau Claire County for its construction as a work project sponsored by said County. The amount expended by the County to November 18, 1939, was $27,122.81. The amount contributed by the Federal agency was $133,595.00.
“5. The County owns land in the vicinity of the dam which it has ‘deducated’ for park purposes as a part of its system of parks and places of recreation owned by it on the Eau Claire River. The pond created by the dam is intended to be used as a part of its system of parks and places of recreation.
“6. The County claims that its right to acquire by condemnation the flowage needed for the maintenance of the dam is given by section 59.07 (24) and section 59.08 (34) of the statutes. The evidence sufficiently shows a compliance with the requirements of these statutes.
“7. Plaintiffs object to the validity of the condemnation proceedings on the grounds (A) of insufficient notice of the application to the Public Service Commission for a permit to build the dam, (B) the alleged invalidity of a contract for flowage rights on lands of the Chippewa Valley Construction Company, and (C) a failure to show that permission to build the dam was obtained from the Chief of Engineers of the Secretary of War.
“(A) The Deputy County Clerk, called as a witness by the plaintiffs, produced a typewritten list of names and addresses of property owners on the Altoona Dam flowage. She testified that someone, she did not remember who, handed her the list and asked her to send by registered mail notices of the application for the permit to each person named in the list and that she sent the notices as directed. The name of Elsie Hempelman and of some others not now interested in the proceedings were omitted from the list. No affidavit of mailing was offered in evidence.
“Proof of publication and mailing presumably were filed with the Commission as the statute requires. It is so stated in the permit issued by the Commission. The statute, section 31.06, and the order of the Commission for the hearing requires the mailing of notice only to persons interested in lands affected by the proposed dam ‘Whose post office address can, by due diligence, be ascertained.’ According to the findings of the Commission, as stated in the permit, proof of publication and mailing were duly furnished. If a mistake was made in omitting some name that would not under the statute affect the jurisdiction of the Commission or the right of condemnation.
“(B) A lease (Exhibit 9) from the Chippewa Valley Construction Company, lessor, to Eau Claire County, lessee, of flowage rights on certain lands contains an agreement that the premises leased are for the purpose of a conservation reservoir and that the dam shall not be used to produce ‘hydo’ electric or water power. Plaintiffs claim that this agreement violates section 31.22 of the statutes. Plaintiffs are not interested in the leased lands. A violation of section 31.22 would not affect the right of some one to maintain the dam. If the lease is invalid, its invalidity would not defeat the right to acquire by condemnation flowage rights on either the leased lands or other lands.
“(C) The evidence fails to show if permission to build the dam was obtained from the Chief of Engineers of the Secretary of War.
“The evidence indicates that the County has no record showing that such permission was granted. It apparently left the matter of securing this permission to the Works Progress Administration. A transcript of the testimony taken at the hearing before the Public Service Commission was introduced in evidence in these cases and shows that the engineers of the Works Progress Administration who prepared plans and specifications for the dam had submitted preliminary plans to the Army Engineers, had made some changes therein on their suggestion, had submitted the changed plans to the Army for approval and that the approval had not been received at that time.
“The plaintiffs had and assumed the burden of proving that no such permission had been obtained. The evidence is insufficient to meet that burden. The proof could have been made more certain. On a stream of this kind with limited facilities for navigation the Federal Government usually leaves the matter of the building of dams and bridges to the discretion of state authorities. Besides it does not appear that the plaintiffs are interested in this question or can sustain any loss on account of it. The right of condemnation in such case usually depends on a compliance with the state law. This is particularly true where it does not appear that any federal law has been violated.
“As Conclusions of Law the Court Finds: That the parties are entitled to judgment as follows:
“1. For the recovery by the Vaudreuil Lumber Company and Lumbermen's National Bank against Eau Claire County of $250.00 damages and said plaintiffs' costs to be taxed.
“2. For the recovery by Elsie Hempelman and Fred R. Stanton against Eau Claire County of $245.00 damages and said plaintiff's costs to be taxed.
“3. For the recovery by Rose P. Patrick against Eau Claire County of $100.00 damages and said plaintiff's costs to be taxed.
“4. Adjudging that on the payment of said damages and costs, title to the lands of the plaintiffs described in the petition for condemnation, so far as said lands are or may be overflowed by the maintenance of said dam as now constructed, shall vest in Eau Claire County, including all flowage rights on said lands necessary for the maintenance and operation of said dam.
“5. It Is Ordered That judgment be so entered.”
On April 29, 1941, judgment was entered in accordance with the foregoing findings of fact and conclusions of law. The plaintiffs, Vaudreuil Lumber Company and Fred R. Stanton, appeal.
