Town of Marion v. Southern Wisconsin Power Co.

Owen, J.

The defendant is a corporation organized, among other things, for the purpose of generating and transmitting electric current for public purposes. It owns and operates a hydro-electric plant and „da.m on the Wisconsin river at the village of Kilbourn, under and by virtue of the provisions of ch. 462, Laws of 1901. This action is brought by the plaintiff town to recover moneys alleged to have been expended by said town in repairing damage suffered by the highways in said town by reason of the maintenance of said dam, in holding back the waters and causing the overflow of said highways. The defendant appeals from a judgment rendered in favor of the plaintiff, and contends that no legal obligation rests upon the defendant company to recoup the town for damages thus sustained. The argument of appellant’s counsel is based upon many fundamental principles, the correctness of which is conceded. Their reasoning is cogent and persuasive. But there is something wrong with any line of reasoning which leads to the conclusion that a power company, organized and engaged in business for profit, may overflow and damage the highways of a town without incurring any liability therefor. Such a conclusion is offensive to an intuitive sense of justice. It has never received the sanction of any court.

Assuming that the legislature has the power to authorize a company such as the defendant to overflow the highways of the state and to grant to such corporation complete immunity from liability therefor, the manifest injustice of such action raises the strongest presumption against any such legislative purpose, and requires clear, affirmative expression of such a legislative intent.

In Massachusetts it was contended that the milldam act authorized owners of milldams to overflow public highways, and the fact was pointed out that the milldam act contained no express provision for the compensation of the public for damages resulting from such overflow. The court disposed of this contention by saying: “There being no provision for an indemnity to the public, it seems manifest that no encroachment on the public rights was intended to be sanctioned.” Inhabitants of Andover v. Sutton, 12 Met. (53 Mass.) 182, 187. In considering the exact contention here made by appellant the supreme court of South Carolina, in Edgefield County v. Georgia-Carolina P. Co. 104 S. C. 311, 88 S. E. 801, said: “But such intent will not be lightly inferred; the intent to do so must be a necessary implication of the words of the grant and the purpose of the grant.” These are the only cases cited to our attention which seem to have any direct bearing upon the question here involved, and we think they state the proper rule by which the legislative intent should be tested. The burden of maintaining highways rests too heavily upon taxpayers to justify a presumption that the legislature intended to add to those burdens for the benefit of private interests.

Before turning to' the act authorizing the construction of the dam which it is claimed grants immunity for damages caused to highways, it is proper to reflect that during the history of our state the legislature has authorized the construction of innumerable dams upon our public waters, which, while ostensibly for the purpose of promoting navigation,'were in reality for the purpose of promoting private enterprise. An examination of forty or fifty of such charters discloses but one, ch. 180, Laws of 1903, which makes any reference to' the liability of the dam owner for damages to highways resulting from the operation of the dam. Nevertheless there is reason to believe that the beneficiaries of all such grants have assumed that they were liable to towns for damages resulting to highways by reason of the maintenance and operation of the dam. One reason for this assumption is that very few cases have reached this court involving the liability of a power company for such damages, and the thought is not to be indulged that such manifest injustice would be suffered by the various towns of the state, 'the highways of which must have been damaged by reason of such operations, without a protest reaching this court. But two such cases have come to this court. One is Levis v. Black River Imp. Co. 105 Wis. 391, 81 N. W. 669. From that case it appears that the Black River Improvement Company assumed that it was liable for such damage and entered into a contract with the town to compensate it for damages resulting to the highways of the town by reason of the maintenance of its dam. The other case is Dekorra v. Wis. River P. Co. 188 Wis. 501, 205 N. W. 423, where it also appears that this defendant assumed that it was liable for such damages and contracted with the town to construct a new road, laid out in lieu of one overflowed by the back waters of this very dam.

Thus there is reason to believe that until a very recent date there has been a common understanding not only on the part of the public and public officials, but on the part of the grantees of such franchises as well, that all dam owners acting under grants similar to ch. 462, Laws of 1901, were liable for damages to highways resulting from the maintenance and operation of their dams. While we concede that there is nothing binding or conclusive about this assumption, such conduct approaches a practical construction of such grants, is not without weight in considering the legislative intent as revealed by the terms of these grants, and may furnish a reason for the legislative silence concerning the liability of such grantees for such damages. In this attitude of mind we turn to the grant under the authority of which defendant maintains its dam.

By sec. 2 it is declared that “In case it shall be necessary to take, flow or injure any lands and property, or- either thereof, for the purpose or purposes of the construction or use of the dam,” the grantee shall be subject to the provisions and entitled to all the benefits and remedies of ch. 146, Stats. 1898 (the Milldam Act). By sec. 3 of the act it is further provided that for the purpose of acquiring the necessary lands, easements, or privileges in lands necessary for flowage, said grantees may enjoy the rights granted to and conferred upon corporations by secs. 1777 to 1777e, both inclusive, of the Statutes of 1898, and also by secs. 1850 to 1857, both inclusive, of the Statutes of 1898, and such amendments as may have been made to any of said sections. Secs. 1777 to 1777e, inclusive, relate to the powers, duties, and liabilities of corporations organized for the improvement of any stream and driving log's therein, while secs. 1850 to 1857 relate to the exercise of the right of eminent domain by railroad companies. The effect of these provisions is to confer upon the defendant company burdens, privileges, and remedies of the Milldam Act qnd the usual powers of eminent domain in order to enable it to procure title to lands and property necessary for it to take, flow, or injure in the prosecution of its enterprise.

It is claimed that none of these statutes confer the right to take property belonging to the state; that the highways belong to the state; that the grant contemplated that highways would necessarily be overflowed by the construction and maintenance of the dam as authorized; and that by the failure of the act to provide for the talcing of property belonging to the state the legislature must have intended to ■permit the taking and flowing of any land and property belonging to the state. This was the holding in Black River Imp. Co. v. La Crosse B. & T. Co. 54 Wis. 659, 11 N. W. 443, where, in order to construct a dam, it was necessary to take a certain piece of real estate belonging to the state of Wisconsin. It appeared in that case that the construction and maintenance of the dam as authorized by the legislature was impossible without taking this real estate belonging to the state. It was necessary to hold, therefore, either that the state had consented to the use of this property, or to hold that it was impossible for the grantees to build the dam as authorized. The court held that in view of the fact that the legislature knew that the construction and maintenance of the dam would involve the taking of this property belonging to the state, it must be assumed that the legislature intended to permit the use'of the property without compensation. We have no quarrel with that holding. But we do not think it has any application here. There is a wide difference between real estate to which the state holds title in fee simple and the highways of the state. It may be granted that the legislature has full control over the highways of the state, that it may lay out highways and that it may abandon highways. But it has no such thing as title in fee to a highway. It may well be that whatever title the public has in a highway rests in the state. But that is a question which we do not deem it necessary to consider. The public has no title to a highway which is subject to the exercise of the sovereign right of eminent domain. The fact that the right of eminent domain cannot be invoked by the defendant to acquire the right to overflow highways does not argue that the state intended to grant such right without requiring the beneficiaries of the grant to compensate the towns for damage done. On the contrary, there seems to be a purpose on the part of the legislature to make the grantees of the act liable to any and all sustaining damage by reason of the operation of the dam.

Sec. 2 provides that in case it shall be necessary to take, flow, or injure any lands and property, it shall be done subject to all of the provisions of the statutes therein enumerated. The word “injury” as used in this act is not to be construed in its technical legal sense, i. e. an actionable wrong, but rather in the popular and usual sense, namely, an act resulting in damage. “If the word were to be construed in its strict technical sense the insertion of -it in the statute would accomplish little,' if anything; construed in the usual sense, however, it becomes a reasonable and just provision requiring the licensees to make compensation for all damage inflicted by their enterprise.” Wells v. Wis. River P. Co. 167 Wis. 345, 347, 167 N. W. 445. So far as applicable, the remedies provided by the Milldam Act, and the other statutes mentioned in the act, are available to the defendant to enable it to acquire necessary rights so far as such remedies are suitable and efficient for that purpose. It is not to be implied, however, that the liability of the defendant ceases at the point where the remedies of the Mill-dam Act, or the other statutes referred to in the act, end. The defendant, no doubt, is liable for a great variety of damage not covered by the Milldam Act or the other statutes imported into ch. 462, Laws of 1901. The word “injury” as construed by this court in Wells v. Wis. River P. Co., supra, is significant. It is not confined to a technical wrong. It makes the grantees liable for all damage inflicted by their enterprise. The immunity enjoyed by the state from incidental damage resulting from the prosecution of a governmental function is not conferred upon the grantees under the act. They are liable for all injuries done to property. We see nothing in the act to indicate or to lead us to believe that the legislature had any thought or purpose of licensing the grantees under the act or their assigns to damage the highways of this state ad libitum, without let or hindrance or liability. Such a burden imposed' upon the taxpayers for the benefit of a private enterprise operated for gain and pi'ofit is so obnoxious to a sense of justice that such a purpose should be declared in the clearest and most unequivocal language. While without doubt the power company is authorized to overflow highways (Dekorra v. Wis. River P. Co. 188 Wis. 501, 205 N. W. 423), it by no means follows that it is authorized so to do without compensating the town for the damages thus incurred! Its act in so doing is not wrongful. It is doné under the sanction of law. Dekorra v. Wis. River P. Co., supra; Stoughton v. State, 5 Wis, 291. But in doing it, it incurs an obligation to reimburse the town for moneys expended in repairing the damage done. We do not see that it is necessaiy to classify the nature of the liability, whether it be in tort or on contract. It is a duty imposed upon it by law. We therefore hold that while the power company may trespass with its waters upon the highways of the state, it must respond to the town in the amount which the town necessarily expends in repairing the resulting damage. That right is enforceable only through an action by the town to recover the amount so expended. Levis v. Black River Imp. Co. 105 Wis, 391, 81 N. W. 669.

The appellant contends that the town cannot recover the amount represented by highway taxes worked out by a taxpayer. We can see nothing in this contention. The highway taxes are assessed upon the individual taxpayers the same as any other tax. It is a tax which they owe to the town. The law gives them the privilege of working out this tax or of paying it. In either event it represents taxes paid by the taxpayer of which the town receives the full benefit. The town certainly is entitled to recover the taxes thus paid as well as the taxes paid in cash and disbursed from the town treasury in repair of the damaged highways.

While we arrive at the conclusion that the defendant is liable to the town for the damages resulting to- the highways from the maintenance and operation of the dam, we have some difficulty in justifying the amount of the judgment in this case. It goes without saying that the defendant is liable only for such sums as the town has necessarily disbursed in repairing the damage committed by the defendant. It appears that the damaged highways have been in existence from a very early day. They are located on-bottom lands. They have always been overflowed to a greater or less extent during high water, freshets, and floods. The highways in question never were easily maintained, and the town always was required to make expenditures for the purpose of keeping them in repair. There is testimony, which testimony is reduced to the form of tables appearing in the record, comparing the extent of overflow since the construction of the dam with the overflow prior to such construction. This testimony and these tables justify a finding that the waters of the Wisconsin river have trespassed upon the highways to a greater extent than they did before. There is also evidence that since the building of the dam there is a side current which does greater damage to the highways than resulted before the construction of the dam. .But these comparisons do not very definitely indicate the additional burden imposed upon the town for their repair. The court rendered judgment in favor of the town for all sums expended for the repair of these highways during the years 1917 to 1924, inclusive. In other words, the court proceeded upon the assumption that but for the presence of the dam the town would have incurred no expense whatever for repair of these highways during the seasons of 1917 to 1924, inclusive. Manifestly this conclusion is unjustified. It is certain that it would have cost the town something to keep these highways in repair even though the dam had never been built. We cannot, therefore, affirm the judgment. It may be difficult to determine just what the actual damage to the town has been by reason of the maintenance of the dam, but it is certain that the presence of the dam is not responsible for the entire expenditure of the town for. the repair and maintenance of these highways during the years in question. There must be a new determination of damages.

The judgment further provides: “It is further adjudged and decreed that the defendant be and is hereby ordered and commanded to repair any and all damage or washing to said highways mentioned in the complaint hereafter caused by the waters of said dam.” We disapprove of this provision of the judgment. It is plain that, the legislature having authorized the defendant to maintain the dam at a given height, a court can neither directly nor indirectly enjoin the defendant from maintaining the dam in accordance with legislative permission. To enjoin it from doing damage or producing results which are inevitable from maintaining the dam in the manner authorized by the legislature is equivalent to enjoining the company from maintaining the dam at all. A court, therefore, cannot enjoin the defendant from committing damage which is the necessary and inevitable result of.maintaining the dam..

It is said, however, that the injunctive provision-of the judgment does not go to that extent. Probably this is true. But, whether the mandatory injunctive feature of the judgment is within the power of the court to render, it is apparent that it is difficult if not impossible of enforcement. The defendant can be compelled to repair only the damage for which it is responsible. That it is not responsible for all the damage resulting to these highways by reason of overflow or floods is apparent from what already has been said. It is impossible to single out any given damage and say that the defendant is responsible therefor. Such an injunction could not be enforced. While it appears well settled in this state that under proper circumstances a town may maintain an action ih equity to prevent obstruction or damage to highways (Neshkoro v. Nest, 85 Wis. 126, 55 N. W. 176; Levis v. Black River Imp. Co. 105 Wis. 391, 81 N. W. 669), there seem to be insuperable difficulties in applying such a remedy in this case. We are of the opinion that the only remedy available to the town is to first repair the damage attributable to the maintenance of the dam from year to year and bring separate and successive actions to recover the expenditures so made.

The judgment will be reversed, and cause remanded with directions to redetermine the damages. This may be done upon the evidence taken upon the former trial and upon such further evidence as the parties may produce. Mitchell Realty Co. v. West Allis, 188 Wis, 305, 206 N. W. 193.

By the Court. — So ordered.