Opinion
May 9, 1952 —
June 3, 1952.
APPEAL from a judgment of the circuit court for Vilas county: GERALD J. BOILEAU, Circuit Judge. Reversed.
For the appellant there was a brief by Sweberg Kruschke of Rhinelander, and oral argument by John E. Kruschke.
For the respondent there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and Beatrice Lampert, assistant attorney general, and oral argument by Mrs. Lampert.
This is an action for recovery of a forfeiture for alleged violation of sec. 31.23 (1), Stats., and for abatement of a nuisance, commenced by service of summons and complaint December 17, 1950. The defendant is the riparian owner of land on both sides of Ox Bow creek, which is the navigable outlet stream for Anna lake, a meandered and navigable lake in Vilas county. Since 1947, this outlet has been obstructed by a beaver dam located on the property of the defendant. The conservation commission removed the dam in 1949, but it was rebuilt in 1950 and the defendant has thereafter refused permission to employees of the conservation commission to enter upon his lands to remove the dam.
The beaver dam backs up the water in the outlet stream so that the levels of the lake are higher than they would be without such obstruction, and the owners of lands abutting on the lake claim that their property has been damaged as a result of such rise in the lake level.
On August 2, 1950, the Wisconsin public service commission conducted a hearing to determine and fix the normal water level of Anna lake, and under date of August 18th, such commission entered an opinion, findings of fact, and an order by which the normal level of Anna lake was determined and fixed at eight inches below the top of a certain private pier maintained in said lake by one of the riparian property owners. The state's complaint in the instant action alleges that the obstruction maintained by the defendant in the outlet stream has raised the level of Anna lake above the level so fixed by the public service commission in its order of August 18, 1950. The answer of the defendant denied that he had placed or maintained any obstruction in the outlet stream.
The state moved for summary judgment and in support of such motion filed affidavits of a conservation warden and another employee of the conservation commission, which affidavits stated that affiants had requested permission of the defendant to remove the beaver dam, and that defendant had refused such permission. The state in support of its motion for summary judgment also submitted a certified copy of the order of the public service commission determining the normal level of the lake, and a certified transcript of the testimony taken before the commission. The only counteraffidavit filed in behalf of the defendant was one by his attorney stating that the defendant denies that he has maintained a beaver dam on the outlet stream in violation of statute, and that such beaver dam is a natural obstruction. Such counteraffidavit also stated that the defendant had permitted the conservation commission to come in and remove the beaver, and after such removal the defendant had never by any affirmative act continued to maintain the structure which remained.
The trial court granted the state's motion for summary judgment, holding that the counteraffidavit presented only an issue of law, and not of fact. Judgment was entered under date of August 20, 1951, adjudging that the state recover from the defendant forfeiture in the sum of $100 pursuant to sec. 31.23 (1), Stats., together with costs, and that the beaver dam be abated and removed forthwith by the defendant. From this judgment the defendant has appealed.
The question presented on this appeal is whether the provisions of secs. 31.23 (1) and 31.25, Stats., are applicable to a beaver dam erected in a navigable stream by the action of beaver unaided by any affirmative act of the riparian owner. The applicable portions of these two statutes are as follows:
Sec. 31.23 (1) "Every person or corporation that shall obstruct any navigable waters and thereby impair the free navigation thereof, or shall place therein or in any tributary thereof any substance whatever that may float into and obstruct any such waters or impede their free navigation, or shall construct or maintain, or aid in the construction or maintenance therein of any bridge, boom, or dam not authorized by law, shall forfeit for each such offense, and for each day that the free navigation of such stream shall be obstructed by such bridge, boom, dam, or other obstruction, a sum not exceeding fifty dollars."
Sec. 31.25 "Every dam. . . . constructed or maintained in or over any navigable waters of this state in violation of the provisions of this chapter or of chapter 30, and every dam not furnished with a slide, chute, or other equipment prescribed by the commission, is hereby declared to be a public nuisance, and the construction thereof may be enjoined and the maintenance thereof may be abated by action at the suit of the state or any citizen thereof."
It is our conclusion that the words " maintain" and " maintained" as used in secs. 31.23 (1) and 31.25, Stats., have reference to a dam which was man-made in its origin, or, if not so made but was originally erected through a natural cause, such as beaver, then some affirmative act on the part of the riparian owner to assist in its maintenance is required in order that such statutes apply. An obstruction in a navigable stream is in the nature of a nuisance, and the word " nuisance" as appearing in sec. 31.25 should be construed in the light of the applicable common-law principles relating to obstructions in streams.
In Mohr v. Gault (1860), 10 Wis. *513, *517, 78 Am. Dec. 687, there was involved the obstruction of the outlet stream of a lake claimed to be occasioned by the washing of the earth from the banks of the stream and the depositing of such earth in the stream thus causing the level of the lake to be raised so as to flood the lands of the adjacent owner. Mr. Chief justice DIXON, in his opinion, stated:
"It may be doubtful, from the facts found, whether, according to the definitions given in the books, the obstructions at the head of the creek, occasioned by the washing of the earth, is or is not a nuisance. If the washing in of the earth was purely accidental, and not directly attributable to the acts of man, it would not be." (Emphasis supplied.)
66 C.J.S., Nuisances, p. 743, sec. 8, states the common-law rule to be as follows:
"In order to constitute an actionable nuisance, a wrongful act of defendant, or his agents or servants, must be shown, since damage, loss, or inconvenience suffered is not alone sufficient to maintain an action; and things which may be annoying or damaging but for which no one is at fault are not nuisances, even though all ordinary consequences of nuisances may flow from them. Accordingly, one cannot be said to create or maintain a nuisance where the condition or state of affairs complained of is due solely to natural causes and he has not by his own act contributed to bring about the alleged nuisance." (Emphasis supplied.)
In 1950, the attorney general was asked by the public service commission for an opinion on the very point at issue in this case, although the stream involved was one in Columbia county, and in his opinion (39 Op. Atty. Gen. 116, 117) it was stated:
"Once the beaver have been lawfully removed from their houses and flowage it would appear that the said dam is no longer protected by the provisions of sec. 29.24 (1). If the owner, by some affirmative act, should thereupon `maintain' the dam, it would thereupon become an unlawful obstruction in navigable water and the owner would subject himself to the forfeiture provided by sec. 31.23 (1). However, that question will not arise until the beaver have been removed."
In the instant case, the state contends that the act of the defendant in refusing permission to the employees of the conservation commission to enter upon his land to remove the dam did constitute an " affirmative act" on the defendant's part in maintaining the dam. With this we cannot agree. The defendant had the legal right to refuse permission to representatives of the conservation commission to cross his lands in order to reach the dam and remove it, even though his motives prompting such refusal are hardly to be commended. No permission of the defendant was required if the representatives of the conservation commission had proceeded by boat propelled over the water of Ox Bow creek, a navigable stream, or if they had entered the stream, other than over defendant's land, and had waded the stream to the point of the dam.
Our attention has been called to the provisions of the amendment to sec. 29.59 (1), Stats., contained in ch. 340, Laws of 1951, which amendment reads as follows:
"Any beaver dam or beaver house causing damage shall not be removed until consent is given by the owner or occupant of the land on which it is located. The owner or occupant of the land failing to give such consent after receiving notice and solicitation shall be liable for all damages arising thereafter by reason of the continuing existence of beaver structures."
The above amendment to sec. 29.59 (1), Stats., became effective June 14, 1951, which was after the commencement of the action in the instant case, but before the date which the representatives of the conservation commission alleged in their affidavits the defendant had refused to grant permission to enter upon his lands to remove the beaver dam. This statute does not state that defendant is required to grant permission to representatives of the conservation commission to enter upon his land, but merely provides that if he fails to give such consent he may be liable for damages to the property owners who have sustained damage as a result of the continued existence of the dam.
Prior to such enactment of ch. 340, Laws of 1951, the state possessed the power through its proper officers to have navigated Ox Bow creek by boat, or to have waded the stream, to the point of the dam and to have removed all of the dam located within the limits of the high-water marks of the stream. Although the defendant, as riparian owner owned the bed of the stream, such ownership was subject to public rights of navigation and recreation. Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514. At first blush it might appear that by the enactment of ch. 340, Laws of 1951, the state had abdicated its police power to unconditionally remove a beaver dam obstructing a navigable stream, but if so construed, such statute would be unconstitutional because the legislature cannot surrender or limit police powers of the state. 11 Am. Jur., Constitutional Law, p. 983, sec. 254; and 16 C.J.S., Constitutional Law, p. 549, sec. 179.
Furthermore, in Illinois Steel Co. v. Bilot (1901), 109 Wis. 418, 426, 84 N.W. 855, 85 N.W. 402, this court held that only such concessions may be made by the state to riparian owners as will not violate the essentials of the trust for public purposes with which title to beds of navigable streams was impressed at the time the state originally acquired its ownership from the United States.
The validity of sec. 29.59 (1), Stats., can be upheld if the words " land on which it is located" are limited to land on the banks of the navigable stream so that they do not apply to submerged lands lying within the bed of the stream, and we therefore so construe the same.
This appears to be a case wherein the state has mistaken its remedy. While, in the absence of proof of an affirmative act of maintenance on the part of the defendant, it has no right in this action to cause the defendant to abate and remove the beaver dam, the state itself possesses an inherent power to do so provided it does not trespass upon the lands of the defendant other than those lying within the bed of the stream.
The pleadings and affidavits before the trial court at the time of the hearing on the motion for summary judgment raised an issue of fact as to whether the defendant had performed any affirmative act to maintain the beaver dam, and the case therefore should not have been disposed of by summary judgment. Defendant's refusal to grant permission to employees of the conservation commission to cross his lands did not constitute such an affirmative act. Unless the state has proof of some affirmative act of maintenance on defendant's part, the complaint should be dismissed upon its merits.
By the Court. — Judgment reversed and cause remanded for further proceedings in conformity with this opinion.