West v. Fox River Paper Co.

• Decision Date: 15 June 1892
• Parties: WEST ET AL. v. FOX RIVER PAPER CO. ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 647

52 N.W. 803

WEST ET AL.

v.FOX RIVER PAPER CO. ET AL.

Supreme Court of Wisconsin.

June 15, 1892.

Appeal from circuit court, Outagamie county; JOHN GOODLAND, Judge.

Bill for injunction by Edward West and others against the Fox River Paper Company and others. Plaintiffs had decree, and defendants appeal. Affirmed.F. W. Houghton and C. W. Felker, for appellant.

Hooper & Hooper, for respondents, cite in support of the proposition that, where islands were meandered and sold as independent parcels of land by the United States, riparian ownership attaches, and the two channels of the river are treated as separate rivers: Tillotson v. Smith, 32 N. H. 90, 95;Murchie v. Gates, 78 Me. 300, 4 Atl. Rep. 698;Benson v. Morrow, 61 Mo. 345;Shoemaker v. Hatch, 13 Nev. 261.

ORTON, J.

The testimony taken in this case, as contained in the printed case even, is very voluminous. The statement of facts will be brief, but sufficient to show the legal questions involved. The following is a diagram of the Fox river and Grand Chute island, at the place where the hydraulic works of the parties are situated. [See opposite.]

The facts are as follows: At a point where the Fox river runs through sections 26 and 35, at the city of Appleton, the river is divided into two channels by Grand Chute island, of considerable length up and down the river, and containing about 22 acres. This island had been surveyed and its shores meandered, and had been sold by the United States as government land. In 1856 and 1857 the plaintiff, Edward West, was the owner of the island, and the owner of, or had, the right to flow the land on the south side of the south channel of the river down to the foot of the island, and on the south side of the river a considerable distance above the island; and built a milldam across said channel about 200 feet below the head of the island; and a wing dam, running up from the north side of the head of the island, and the north end of said dam, north west into the main channel of the river; and began to utilize the water power created by said dams. By these works a part of the west end of the island was removed; and, in 1870, West cut a canal lengthways through the island, nearly central, and thereby made water powers on each side of this canal, discharging the water into the north and south channels, the head in the canal being held by the said dam across the south channel, and the said wing dam from the north side of the island. In order to open the head of the canal in connection with these dams, about 140 feet of the island at the upper end were removed, and the rocks therein used in the construction of a solid wall up from the north side of the island, in place of a part of the wing dam, the wing dam remaining mostly as first constructed. The entire water power afforded by the river is about 3,000 horse power. In 1849 Amos Lawrence owned the land on the north shore of the river opposite and over and against the head of the island, and 800 feet above and 1,200 feet below, with the right of flowage of 1,000 feet more above, and built a wing dam, starting near the shore on the north side nearly opposite to and below the head of the island, and running up several hundred feet above the head of the island, and out into the river, thereby developing a mill power, discharging the water into the north channel below the head of the island; and such wing dam, rebuilt, repaired, raised, strengthened, and extended, still remains. In 1850 Lawrence constructed a canal, or mill race, from the foot of said wing dam 600 feet down the north channel of the river, near the north shore, affording a series of mill powers, discharging the water into the north channel of the river below and opposite said island. In 1877 the waterpower owners on both sides of the north channel of the river at this point, together with business men and citizens of the city of Appleton, in order to improve and build up the city, obtained a charter of a company without stock, and raised a fund of $9,185 for the purpose of further improving said water powers; and said Edward West, the plaintiff, and Anson Bullard, who was interested in the water power on the north side of the north channel, became subscribers to said fund. Said fund was used by the company in building a dam across the north channel of the river, starting from the foot of said wing dam built by Lawrence on the north side of the north channel, and extended south to near the head of the island, and, if extended a few feet further, would have reached the island about 12 feet below the head of it in its natural condition; and this gap was filled by a wing wall coming down to the island as it then was, on a line with and using a part of a retaining wall built by West up from the north side of the island. The wing dam built by West from the north side of the head of the island out into the river above, and the one built by Lawrence from near the north side of the north channel opposite, came nearly together near the center of the river above, in the form of an inverted “V, and in this way appropriated nearly the whole power of the river, and made the power belonging to either side much greater. After the cross dam had been built by the company as above, the said wing dam built by West above the cross dam was removed, but the said wing dam built by Lawrence from the other side is still retained, thus affording the defendants, as the grantees of Lawrence, the additional advantage of an increased head within the wing dam, by reason of the cross dam, and for building mills on the cross dam, of which they have already availed themselves. This is a brief statement of the facts found by the court. The learned judge before whom this case was tried personally inspected these water powers and the constructions by which they have been made available to the parties,

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and he was therefore peculiarly well qualified to understand and weigh the testimony, in view of these physical monuments. It is impossible for this court to be as well qualified as the trial court to correctly find the facts. We shall, therefore, accept the findings as verities in the case.

There are really only two questions on which the judgment depends, and they are: First. Whether the defendants' power on the north side has been made available by them at a point opposite and below the head of the island in its natural state; and, second, what proportion of the waters of the river naturally flow in the south channel and the south half of the north channel? To ascertain these facts a great many witnesses, who were personally cognizant of these natural conditions many years ago, had to be examined, and testified from their recollection. It is not strange that there was considerable difference in their recollection of such conditions. They did not observe these physical conditions at the time with any view or expectation that they would ever be called upon to testify of them. The occasion and facilities for observation at the time, and the reasons of their recollection, would naturally be various and different. The learned judge who heard them testify, and who was therefore able to apply the usual tests of credibility, and to reconcile their testimony, if possible, and if not, to determine the truth between them, has unquestionably formed the best possible judgment of what were the facts. As to the first question, the court found that the defendants' power was made available, and their dam on the north side was at a point even with and opposite to a point below the west or upper end of Grand Chute island. As to the proper proportion of the water power belonging to the plaintiff by his ownership of the south and north shore of the south channel, and of the south shore of the north channel of the river, the court found-- First, that the plaintiff (or his grantees) is the owner of and entitled to the use “of the hydraulic power of one half of the flow of the north or main channel, and of the whole of the flow of the south channel of the Fox river, when it passes the head of Grand Chute island, and the dams placed therein at or near the head of such island.” Second. That the defendants “are the owners of and entitled to the use, for hydraulic power, of the one half of the north or main channel of the Fox river, when it passes the head of Grand Chute island, and the dams placed therein at or near the head of such island.” Third. “That the width of the...