Stevens Point Boom Co. v. Reilly , 46 Wis. 237 ( 1879 )

EyaN, O. J.

This appeal was submitted on printed briefs; and these sufficiently show that the parties regard the appeal as involving some substantial right. An argument at the bar would probably have instructed the court in the nature of such right, and how it is affected by the order from which the appeal is taken. As it is, the court is left very much to conjecture; and, as the previous decisions of the court are here understood, the controversy appears to be rather in the nature of a skirmish of words than a war of things.

It may be said, in passing, that of late the bar seems to put less value than the bench, on oral arguments of appeals, though the latter rarely fail in throwing light on the dead letter of briefs, hovrever ably prepared.

As the question is regarded here, there is little substantial difference between the order submitted by the appellants, and the second clause of the order made by the court below. The first clause of the order, however, does not follow the mandate of this court on the former appeal; and the record affords no means of judging why it was introduced or what effect it is intended to have. The order must therefore be reversed.

It is difficult to understand how serious disagreement should have arisen in the construction of the opinion of this court on the former appeal, Stevens P. B. Co. v. Reilly, 44 Wis., 295. Following Diedrich v. The N. W. U. Railway Co., 42 Wis., 248, which in its turn followed Dutton v. Strong, 1 Black, 23, and Atlee v. Packet Co., 21 Wall., 389, it was held that the appellants might “lawfully, until prohibited by statute, construct, in front of their land, proper booms to aid in floating logs, so as not to violate any public law or obstruct the navigation of the river by any method in which it may be used, or infringe upon the rights of other riparian owners. . . . In any case it must not obstruct the free navigation of the river by floating logs to market or otherwise. Subject to these conditions, the appellants appear to have a right, as riparian owners, to construct a proper boom from their own premises on the bank of the river.”

It seems to be apprehended by the respondents, that the form of order submitted by the appellants to the court below would, under the rule so given, have authorized the appellants, in the exercise of their riparian right on both banks of the river, to maintain booms completely crossing the river. This question was not in the former appeal. Rut the right suggested is expressly excluded by the opinion. No form of order could have that effect. Such boom or connecting booms would more or less obstruct the navigation of the river, and would violate public law. R. S. 1858, ch. 41, sec. 2; R. S. 1878, sec. 1596; Barnes v. Racine, 4 Wis., 454; Enos v. Hamilton, 24 Wis., 658. This is not a question of materially impeding navigation, under color of legislative grant, as under ch. 399 of 1876. The general statute forbids any obstruction of the river without permission of the legislature. Booms erected by riparian owners, in aid of navigation, through shoal water far enough to reach actually navigable water, are not within the statute. Such do not obstruct the river, but aid its use.

This private right of the riparian owner, as declared in Diedrich v. Railway Co., quoted in the opinion on the former appeal, is subordinate to the public use of a navigable river, and is always exercised at peril of obstructing navigation. This subjection of the private right to the public use may sometimes impair the private right or defeat it altogether. But the public right must always prevail over the private exercise of the private right. The legislature may indeed, upon public considerations, authorize such an exercise of the private right across the river as will not materially obstruct navigation. But, without legislative permission; the exercise of the private right entirely across the stream is forbidden by the statute.

It was suggested in the former opinion in this case, that the riparian right of constructing a boom was presumably limited by the thread of the stream. That is probably correct. It was a mere intimation, however; and it was unfortunately made, if it led the appellants to believe — as the order proposed by them may suggest — that the right always extends to the thread of the stream. It has already been shown that it cannot so extend to the obstruction of navigation.

The appellants seem to apprehend that the language of this court in Diedrich v. Railway Co., and on the former appeal in this case, as well as in the second clause of the order from which this appeal is taken, renders the riparian right nominal and useless. It is claimed by the learned counsel that the measure of riparian right is restricted to water not navigable, and is unavailing because it cannot reach the point where it ■would become useful. It is not believed that the language of the federal supreme court in Dutton v. Strong or Atlee v. Packet Co., or of this court in Diedrich v. Railway Co., or on the former appeal in this case, is properly subject to such hyper-criticism. The right sustained in all these cases is a practical right, “in aid of navigation, through the water far enough to reach actually navigable water” (Diedrich v. Railway Co); “ to aid in floating logs ” (Stevens P. B. Co. v. Reilly). These terms do not imply, the whole tenor of the opinions repels, the construction, that wharves, piers, booms and the like, in aid of navigation, must be constructed within such limits as to make them inoperative. A pier upon Lake Michigan, to aid navigation, must go into water deep enough to be accessible to vessels navigating the lake. A boom on a logging stream, to aid such navigation, must go into water deep enough to be accessible to floating logs; must be so constructed as to receive and discharge floating logs. In either case, to reach navigable water reasonably implies reaching it with effect to accomplish the purpose; the word often signifying some penetration of the thing reached. One is not understood to stop outside the limits of a place when he is said to reach it. He is understood to enter it, as far as may be necessary for his purpose. The right in question necessarily implies some intrusion into navigable water, at peril of obstructing navigation. Atlee v. Packet Co.

This intrusion is expressly permitted to aid navigation, and expressly prohibited to obstruct navigation. It is impossible to give a general rule limiting its extent. That will always depend upon the conditions under which the right is exercised; the extent and uses of the navigable water; the nature and object of the structure itself. A structure in aid of navigation which would be a reasonable intrusion into the waters of Lake Michigan, would probably be an obstruction of navigation in any navigable river within the state. A logging boom which would be a reasonable intrusion into the waters of the Mississippi, would probably be an obstruction of navigation in most or all of the logging streams within the state. The width of a river may justify a liberal exercise of the right of intrusion, or may exclude it altogether. Its extent is purely a relative question. And thei’e are no facts in this record to warrant any opinion of the extent to which the appellants may exercise the right in this case, without impairing the public use.

If within these conditions the appellants can construct a useful boom, they may. If not, their defect of right is in the condition of the river and its relation to their property, and not in the law. And it is not believed, as suggested in the brief of counsel, that the learned judge of the court below would have held the exercise of the right as here defined, a violation of the injunctional order by the appellants.

Other questions are discussed in the briefs, which were either passed upon in the former appeal or are not properly in this, and which the court will therefore not notice.

The distinguished counsel of the appellants reproaches the court for having, on the former appeal, relied on ch. 399 of 1876 in aid of the respondents’ case, because the respondents themselves had not relied on it. Such is understood to be the precise duty of this court. The parties furnish the facts in the record, but the court must apply to the facts any principle of law or provision of statute known to it, whether relied on by the parties or not.

There would be, in such a case, great impropriety in dictating to the court below the precise terms of the order to be made. It is thought quite unnecessary. It is not believed that the distinguished jurist who is judge of the court below, will misapprehend this opinion, or misapprehended the opinion on the former appeal. If it were not for the different and narrow constructions which the parties appear to have put upon the different forms of order proposed, the second clause of the order made might be affirmed. But because the first clause of the order must be reversed, and because the terms of the second clause of the order ought, in the circumstances, to be more precise, it is thought proper to reverse the whole order.

By the Oourt. — The order of the court below is reversed, and the cause remanded with directions to the court below to modify the injunctional order in conformity with the opinions of this court on the former appeal and on this.