Smith v. Gould , 1884 Wisc. LEXIS 49 ( 1884 )

Cassoday, J.

For the purposes of this appeal the answer must be taken as true. It is very evident that the waters of the river were, and for a long time had been, working destruction to the public highway at the point in question. The supervisors of that town were made parties defendant. At the annual town meeting a resolution was passed giving the supervisors authority to appropriate sufficient money to repair and protect the highway from the encroachments of the river. The supervisors and overseer of the district consulted and agreed that the highway should be protected by cutting an artificial channel across the neck of land, and thus turning the water of the river through such new channel, and thereby preventing the same from passing around the bend or into the highway; and that this was, and was regarded by the electors of the town generally as, the only practical and reasonable way to repair and protect the highway and to prevent further damage to the same from the river. Accordingly the supervisors let the contract to one of the other defendants, and the artificial channel was cut by him and his workmen, and the old one filled up according to such contract. Evidence of all these things, and much more, was excluded by the trial court on the ground, as it is said, that the acts of the legislature, under which such improvements were sought to be made, were unconstitutional and void.

This court has recently held, in effect, that the taking of lands under the sections of the statute authorizing the construction of such drains or ditches as may be necessary for the improvement or preservation of highways, even though it may become necessary in doing so to go upon land in the vicinity, not adjacent to such highway, is a taking for a public use within the meaning of the constitution, but that such acts are not unconstitutional merely because they do not provide for actual payment in advance of the taking, since the taxable property of the town or municipality constitutes a pledge or fund to which such owner may resort for payment in the manner prescribed by statute. Smeaton v. Martin, 57 Wis., 364, and cases there cited. See, also, Mercer v. Mc Williams, 1 Wright (Ohio), 132; Bates v. Cooper, 5 Ohio, 118; McCormick v. President of Lafayette, 1 Carter (Ind.), 52; Loweree v. Newark, 38 N. J. Law, 151; Smith v. Helmer, 7 Barb., 426. It was there also held, in effect, that the” necessity for such taking is to be determined by the legislature, which may, in its discretion, delegate the exercise of such power to town supervisors or overseers of highways; It was also there held, in effect, that such determination by the legislature, or the body or person to whom the exercise of such power may he thus delegated, is not conclusive as to whether the taking of private property is for a public use; yet, when the use for which it is in fact taken is pxiblio, then such determination as to the necessity of the taking, is conclusive upon the courts.

The reasons and authorities for such rulings are there given, and need not be here repeated. In that case the ditch on the plaintiff’s land was nearly a quarter of a mile distant from the highway; here it is about 150 feet. There the ditch was on the land of the plaintiff; here it is wholly on the land of another, who makes no complaint. There, as well as here, the purpose was to drain water from a public highway, and in both cases it was effectual. There the ditch was to drain wet, marshy ground; here it was to divert, and create for a short distance an entirely new channel for, a river. Here the water is drawn from the highway and from a portion of its accustomed channel, and hence away from that part of the plaintiff’s bank and shore bordering upon that part of the river, and thrown more directly and with much greater force upon another portion of the plaintiff’s bank and shore, so as to change its condition and formation, and cut away portions of the same. Whether the acts of the defendants in question were a taking of the plaintiff’s land, within the meaning of the statute referred to, it is not.absolutely necessary here to determine. Upon a hasty examination it would seem that some of the cases in other courts indicate more or less remotely that it is:' Eaton v. B., C. & M. R’y Co., 51 N. H., 504; Hooker v. New Haven & N. Co., 14 Conn., 146; Wabash & Erie Canal v. Spears, 16 Ind., 442; Grand Rapids Booming Co. v. Jarvis, 30 Mich., 309; and other cases that it is not: Norris v. V. C. R. R. Co., 28 Vt., 99; Transportation Co. v. Chicago, 99 U. S., 635; Green v. Swift, 47 Cal., 536; Spangler's Appeal, 64 Pa. St., 387.

The power of the legislature to take, or authorize the taking, is as broad as the language of the constitution implies. Sec. 13, art. I. Of course, the taking of private property can only be to the extent and in the mode prescribed by statute. The legislature has expressly prohibited the taking of certain grounds and certain kinds of property for a public highway. Sec. 1263, R. S. The express naming oí these indicates, by necessary implication, that all other kinds of property may be taken for public use by making, or, in case the taking is by towns or municipalities, by providing, just compensation. Smeaton v. Martin, supra. If there was a taking here, it certainly does not come within the statutory prohibition. “ Strictly speaking, there is no such thing as an extinction of the right of eminent domain. If the public good requires it, all kinds of property are alike subject to it, as well that which is held under it as that which is not.” N. Y., H. & N. R. R. Co. v. B., H. & E. R. R. Co., 36 Conn., 198, and cases there cited.

In Spangler's Appeal, supra, a bill was filed to restrain the canal company from diverting the water in a -stream from -the plaintiff’s mill, but it was held that the company was entitled to so divert under the right of eminent domain given to it by the legislature.

In Hazen v. Essex Co., 12 Cush., 476, 477, Chief Justice Shaw said: “ It is a fallacy to suppose that a mill or mill privilege is, in principle, exempt from being taken under the power of eminent domain over any other private property. An impression of that kind may have arisen from the rule applicable to the general mill acts. It stands on a different principle. Thus, each successive proprietor on the watercourse has an equal right to use the power of the stream through his own land* to erect a mill, which is for the general benefit; he, therefore, who first appropriates it by erecting a mill, shall be held secure against the claims of another who has not so appropriated the stream. . . . But this principle can have no influence on the legislature, in determining what is necessary to be taken for public use; the value oE a mill can as well be compensated in money as that of any other property so taken.” See, also, Trustees of College Point v. Dennett, 5 Thomp. & C., 217.

In Central Bridge Corp. v. Lowell, 4 Gray, 474, it was held that “a franchise to build and maintain a bridge may be taken for a highway whenever the legislature deem that the public exigencies require it, reasonable compensation being made.”

In the case of a navigable stream the bed of the river is a public highway of the state, and within its absolute control, subject only to the rights of commerce. Green v. Swift, supra; Black River Imp. Co. v. La Crosse B. & T. Co., 54 Wis., 659. But the stream in question is not navigable. This being so, it stands on a common footing with other private property, so far as the right of eminent domain is concerned. Thus, in Glover v. Powell, 10 N. J. Eq., 211, it was “ held that the legislature had the right to authorize the obstruction of the creek, there being nothing in the case to show that its navigation was demanded by the public interest.” Certainly, all property is held upon the implied condition that it may be reclaimed by the government, in the manner and upon the terms prescribed by law, whenever the public necessities so demand. Here there was no laying out and opening of a new public highway, but simply the preservation and restoration of an old one. There is no claim that there was any taking of property within the limits of the highway, except by diverting the river therefrom, but that there was what is claimed to be equivalent to a taking outside of such limits. Assuming, therefore, for the purposes of this appeal, that there was such a taking, either by diverting the river from the highway or otherwise, yet the only remedy therefor is the mode prescribed in the statute and fully pointed out in Smeaton v. Martin, supra, and cases there cited. See, also, Spangler’s Appeal, supra. Since there is a statutory remedy for lands taken for public use in such cases, it is very evident that if the plaintiff’s land has in fact been taken for such use, within the meaning of the constitution and the statutes, then he should have pursued that remedy. Certainly an action of tort will not lie against those making such improvement under such statutory power. Sprague v. Worcester, 13 Gray, 193.

The claim that the supervisors and their contractor and his workmen cannot defend under the statutory power, seems to be wholly without foundation. It was not, as we now recollect, the overseer, but the supervisors, who were proceeded against in Smeaton v. Martin, supra. As there indicated, the overseer is under the control of the supervisors in such matters, and must execute all lawful orders given by them. The improvement in question seems to have been of such magnitude as to require a special vote of the town meeting to raise money for the payment of the same. It does nob appear to have been among the ordinary duties of the overseer. He does not seem to have been a necessary party. For such extraordinary improvements, the supervisors seem to be the moving and acting party. Their responsibilities are like the commissioners of highway in New York, where the courts have taken a similar view of the matter. Bartlett v. Crozier, 17 Johns., 447. In that case Chancellor Kent said “ that, with respect to bridges, at least, if not to highways, the commissioners, and not the overseers, are the persons properly responsible to the public. With respect to bridges, the duty of the overseers (if any they have on that subject, independent of the orders of the commissioners) is to apply the- moneys' they may have received from commutation and fines (when not directed otherwise) in improving the roads and bridges. . . . Such a limited and precarious duty in the reparation of bridges cannot, as I apprehend, afford ground for a private action against the overseer from any and every person who may happen to be injured by a bad bridge within his district.”

From what has been said it sufficiently appears that, in our opinion, it was error to exclude the evidence upon the defense of justification set up in the answer; and for the same reasons the portion of the charge excepted to must be held to be error.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.