Title: Essays on Wisconsin Water Law, November 1955
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Title: Essays on Wisconsin Water Law, November 1955
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Language: English
Publisher: U. of Wisconsin Extension Service, College of Agriculture and Law School
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Abstract: Richard Hamann's Collections - Essays on Wisconsin Water Law, November 1955
General Note: Box 12, Folder 8 ( Collected Materials on Water Law - 1952 -1957 ), Item 4
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Full Text
November, 1955


IESSS ONS

V ISCONSI r


'f, ,Uis oC 6Uui w n "lh
EXTENSION SERVICE, COLLEGE OF AGRICULTURE
and LAW SCHOOL cooperating


_. _1_1_~___ ~_~F__I______ _____ __


" ....lii









ESSAYS ON WISCONSIN
WATER LAW


WISCONSIN LAW OF WATERS by the late Adolph Kannenberg,
for many years an attorney for the Wisconsin Public Service
Commission specializing in problems of water law..........l


THE LAW OF UNDERGROUND WATER: A HALF CENTURY
OF HUBER v. MERKEL by David L. Uelmon, practicing law-
yer and formerly on the editorial board of the Wisconsin Law
Review..........................................50



PRESENT AND PROPOSED LEGAL CONTROL OF WATER
RESOURCES IN WISCONSIN by Glenn R. Coates, practicing
lawyer and formerly (1950-51) research worker in water law
with the University of Wisconsin College of Agriculture and
Low School.........................................................75


The three articles included in this booklet are reprinted by
permission from the Wisconsin Law Review.











WISCONSIN LAW OF WATERS*


ADoLPH KANNEBERG

The Ruies of Law Pertaining to Navigable
Water in the Several States

In Newaygo County in the state of Michigan, there is a lake known
as Conover Lake. It covers an area of 112 acres. It was meandered
by the surveyors employed by the United States Government. A
public highway runs along the south side of the lake. The highway
-was not laid out but the public used it for thirty-five years prior
to the commencement of the action hereafter referred to. For ten
years public funds were expended to improve it.
For thirty-five years or more the public had access to the lake
from the highway for watering horses and launching row-boats. After
the public used the lake, as stated, the owner of the land upon which
the highway is located built a fence in the waters of the lake along the
highway to exclude the public from launching its boats and fishing
in the lake. The public broke down the fence.
The riparian proprietors then brought an action1 to restrain the
defendant members of the public from trespassing upon the lake,
interfering with the fence, going upon the lake to fish thereon, and
from maintaining a boat livery.
The court held: that Conover Lake is a private lake; that the pub-
S lic has no right to go upon the lake to fish, although access thereto
may be had from a public highway; that the bed belongs to the owners
of the banks and that such owners have the exclusive right to hunt
and fish upon the lake; and that they may lease or sell and convey
such exclusive rights to others.
In Langlade County in the state of Wisconsin.there are two small
N unnamed lakes or ponds, one covering 524 acres and the other 2.35
acres. The larger lake is from 3 to 25 feet deep. The smaller lake
is from 4 to 18 feet deep. The lakes are connected by a channel 22
feet long, 10 feet wide, and 2 feet deep. Pike, perch, rock bass,
and bullheads are caught in the lakes. The lakes are not meandered
by the government surveyors. No highway passes along their shores.
They are entirely surrounded by privately owned land.

Presented at the Refresher Course for Lawyers at the Univenity of Ws-
cosin Law SchooL
Patnam et t. v. Kinney am e 248 Mich. 410, 227 N.W. 741 (1929).
1







WISCONSIN LAW REVIEW


The larger lake, the connecting channel, and nearly all of the waters
of the smaller lake are located on the land of one Frank Voss. A
slight segment of the smaller lake is on land owned by the Bakers.
The governmental quarter-section line separates the land of Mr. Voss
from that of the Bakers.
The Bakers maintained a rowboat on the small lake which they
rented to fishermen for a fee. For seven years the Bakers and their
lessees fished the lakes until Mr. Voss erected a fence in the lake
along the governmental quarter-section line and put up "no tres-
passing" signs.
The fence extended along the quarter-section line for a distance of
19 rods or 314.5 feet. The Bakers did not tear down the fence. They
exercised greater forebearance than did Putnam and his associates
in Michigan. They brought an action to enjoin the continuance of
the barrier and from interference with navigation.2
The court held that the two lakes and the channel between them
are navigable; that the title to the beds of the lakes is vested in the
state, and that the public has a right to fish therein. It awarded judg-
ment to the Bakers enjoining the defendant from interfering with the
rights of the public to make use of the lake for navigation and fishing.
The Mississippi River forms the boundary between the state of
Iowa and the state of Illinois. In Iowa title to the bed is in the State.
The rights of navigation, hunting, and fishing are in the public. In
the state of Illinois title to the bed of a navigable stream may be
held in private ownership subject to the right of navigation. The
exclusive right to hunt and fish8 and to' harvest the ice which forms
over the bed' is in the owner of the fee.
The states of Wisconsin and Oregon adopted the so-called saw-log
test of navigability. In Wisconsin title to the bed of a navigable
stream is in the owner of the banks up to the ordinary high-water
mark" subject to the public right of navigation and its incidents, such
as hunting and fishing. In the state of Oregon title to the bed of a
navigable stream up to the ordinary high-water mark is in the State.*
There is no branch of law in which the rules differ so widely in
different sections of the United States and from state to state as that
branch of law which pertains to waters.
The arid states of the west have generally adopted the rule of prior
appropriation. This was.made necessary by reason of the mining

SBaker et al. v. Voss, 217 Wis. 415, 259 N.W. 413 (1935).
SJohn A. Schulte v. Meredith Warren et al., 218 Ill. 108, 75 N.E. 783 (1905).
*Washington Ice Co. v. Shortall, 101 Ill. 46 (1881).
'Polebitzke v. John Week Lbr. Co., 163 Wis. 322, 158 N.W. 62 (1916).
*Moor v. Willamette Transportation & Lock Co., 7 Ore. 357 (1879).
2


[VoL 1946








LAW OF WATERS


interests and particularly because it was believed that no permanent
community could be established without agriculture. Agriculture could
not be carried on without irrigation. Hence the necessity for the rule
that the first appropriator has a prior right to the use of the water
so long as he continues to make use of it for agriculture or mining.
The humid states adopted the English doctrine of riparian rights,
the underlying principle of which is directly opposite to that of prior
appropriation. Under the doctrine of riparian rights, a riparian pro-
prietor on a stream, navigable or nonnavigable, is entitled to have the
water come to him from an upper riparian, as nature brings it, rea-
sonably undiminished in quantity and unimpaired in quality.
The states which adopted the common law doctrine of riparian
rights differ widely in their interpretation of that doctrine.
A striking illustration of how wide these differences may be is
found in the answer which the different states make to the fundamen-
tal question "What is navigable water?" There are almost as many
different answers as there are common law states. These vary from
the rule in Texas which provides that a stream so far as it retains
an average width of 30 feet is navigable, and the Mississippi rule
S which declares that any stream or bayou 25 miles long and deep
enough for any 30 consecutive days to float a steamboat with a ca-
pacity of 200 bales of cotton to be navigable, to the North Carolina
rule which holds that a stream to be navigable must have a capacity
of supporting sea-going vessels.
The importance of the answer to the question "what is navigable
water?" lies in the fact that if a stream or lake is navigable, then
under Federal law it is a public highway.
Any additional rights which the public may have in navigable water
is by virtue of state policy.' Thus in Wisconsin when it is said that
a water is navigable, it is merely a different way of saying that it is
public-public not only for navigation, but for hunting, fishing,
recreation, and for any other lawful purpose.
? The rules of law pertaining to navigable water as developed in the
several states and the problems arising from their application, like
so many problems in other fields of law, are difficult to understand
unless one knows something of the legal history under which those
rules were developed, and this leads back to the early history of our
country.
4 England claimed the ownership of lands which she held in the
United States by the right of discovery. There were Indians upon
the land but they were considered merely as temporary occupants of

'Km v. Nkhoh, 197 w. 394, 222 N.W. 300 (192).


July]







WISCONSIN LAW REVIEW


the land, and after England discovered the land, she gave patents for
large tracts of land to various companies with the power of govern-
ment.
After the Revolution, the thirteen original states declared their in-
dependence ard became independent sovereign states and as such
owned the waters and their beds within their respective boundaries.
As such independent and sovereign states they could make whatever
rules they desired concerning the waters and their beds.
Chief Justice Taney, in Martin v. Waddells said:
When the American Revolution took place, the people of each
state themselves became sovereign, and in that character hold the
absolute right to all their navigable waters and the soils under
them, for their own common use, subject only to the rights since
surrendered by the Constitution to the general government.
And again:
When the people of New Jersey took the reins of government
and took into their own hands the power of sovereignty, the pre-
rogatives and regalities which before belonged either to the
Crown or to the Parliament became immediately vested in the
state.
In Shively v. Bowlby, the court said:
The English possessions in America were claimed by right of
discovery. Having been discovered by subjects of the King of
England, and taken possession of in his name, by his authority
or with his consent, they were held by the King as the represent-
ative of and in trust for the nation; and all vacant lands and the
exclusive power to grant them were vested in him. The various
charters granted by different monarchs of the Stuart dynasty
for large tracts of territory on the Atlantic coast conveyed to
the grantees both the territory described and the powers of gov-
ernment, including the property and dominion of lands under the
tidewaters. And upon the American Revolution, all of the rights
of Crown and Parliament vested in the several states, subject
to the rights surrendered to the national government by the Con-
stitution of the United States. -
After the Revolution the states were impoverished. They had no
money. They were casting about for new means of raising funds,
the same as we were seeking new subjects for taxation during the
war just concluded, and as a result, the landless states, particularly
Maryland, demanded that Virginia and the other states claiming lands
to the west should cede those lands to the Confederation to be sold
to pay for the costs of the war. Through her delegates in Congress,

S41 U. S. 16 (Peters) 345 (1842).
0152 U. S. 1, 14-15 (1893).


A -


[Vol. 1948







LAW OF WATERS


Virginia expressed the opinion that the country wrested from the
common enemy by the blood and treasure of the thirteen states should
be considered common property to be parceled out by Congress into
free sovereign and independent states.
Disputes over the western lands prevented the ratification of the
Articles of Confederation for ,3 years.. Plans for the Articles were
submitted July 17, 1777 and were approved in November, 1777. They
were submitted to the states in 1778 but not ratified until March 1,
1781, and in 1781 Virginia ceded the territory to the United States
upon two conditions: (1) the new states to be admitted as members
of the Federal Union were to have the same rights of sovereignty as
the original states; and (2) the navigable waters flowing into the
Mississippi and the St Lawrence rivers and the carrying places be-
tween them were to be forever free public highways. It was feared
that the new states to be formed out of the Northwest Territory
S would impose tlls or takes for the use of the iavigable waters.
Cogaess accepted the session on the tn laid dowa, and the con-
ditions were inoorprated in the Ordinanoef 1787 which constituted
the laws for the government of the Northwest Territory.
The condition thatthe saviable waters should be free public high-
ways was of great importance to the original states. The rivers were
the principal highways, for there were no land highways into the
wilderness. There were only three important routes of travel between
the Great Lakes and the Mississippi Valley, namely:
1. Lake Erie up the Maumee Rivet and a short portage to the
Miami which flows into the Ohio;
2. Lake Michigan at Chicago up the Chicago River, the Des Plaines
River, and down the Illinois River; and
3. The Wisconsin-Fox rivers.
The United States Constitution containing the Commerce Clause
was not adopted until almost two years later.- After its adoption
Congress alone had power to regulate traffic between the states."
The Ordinance of 1787 does not define the term "navigable water."
There was no rule of the Federal Government for the guidance of
the states with respect to that matter. The ordinance merely provided
that navigable waters were to be public highways, and thus states
like Wisconsin and Oregon, which had vast forests of pine timber
which would float, found it to their interests to adopt the saw-log

10"The Congre shall bave power. .. (3) to regulate ommrce with foreign
nations, among the separate states, amd with the Inmian Tribes;"
5


July]







350 WISCONSIN LAW REVIEW [VoL 1946

test of navigability, while other states adopted different tests of nav-
igability. The Atlantic states generally adopted the salt-water test of
navigability, that is to say, any stream up to the point to which the
tide ebbs and flows is navigable. In North Carolina, for example,
the Yadkin River which has a width of 175 yards is nonnavigable,
whereas in Wisconsin any stream capable of floating a saw log during
one or two weeks of the spring or other freshets is navigable.
In Hinman v. Warren,1 the court held that the United States Gov-
ernment has no authority to dispose of lands within a territory so as
to make it impossible to admit such territory into the Union upon an
equal footing with the other states. In all matters that touch the
sovereignty of the future states, the Federal Government is simply a
protector thereof until such time as the territory becomes a state.
In support of this doctrine, the courts have gone so far as to hold
that states may not be deprived of this right by an enactment prior
to their admission into the Uiion. In State ex rel Dawson v. Akers,
et al.," it was held that a territorial act which in effect attempted to
apply the strict rule of the common law of England to the waters of
Kansas was void, for the reason that otherwise Kansas would enter
the Union stripped of the valuable right of ownership in and control
over the bed of the Kansas River and that, therefore, she would not
be on an equal footing with the original states.
In Pollard's Lessee v. Hagan" there was involved the question of
ownership of lands below tidal waters in states once territories of
the United States. When Alabama was admitted to statehood in 1819
the Federal Government reserved title to the public lands in the state.
Subsequently the United States attempted to grant to private persons
lands which were covered by the tidal waters of Mobile Bay. The
court held the title to these lands was no longer in the Federal Gov-
ernment and that title to such lands had passed to Alabama upon its
admission into the Union. The court further held that new states
have the same rights, interests, and sovereignty over the soil under
navigable waters as the original states have, citing the oft-quoted
phrase:
When the Revolution took place, the people of each state
themselves became sovereign; and in that character hold the
absolute right to all their navigable waters, and the soils under
them for their own common use, subject only to the rights since
surrendered by the Constitution.


U6 Ore. 408 (1878).
"92 Kan. 169, 140 Pac. 637 (1914).
= 44 U. S. (3 Howard) 391 (1845).


Ir







LAW OF WATERS


And adding:
Then to Alabama belong the navigable waters, and soils under
them, in controversy in this case, subject to the rights surrendered
by the Constitution to the United States, and no compact that
might be made between her and the United States could di-
minish or enlarge these rights.

DEVELOPMENT OF THE LAW OF
WATERS IN WISCONSIN

The Ordinance of 1787 was adopted July 13, 1787, a year and
nearly eight months before the United States Constitution was
adopted.
Article IV of the Ordinance provides in part:
.. The navigable waters leading into the Mississippi and St.
Lawrence, and the saying spaces between the same, shall be
common highways, and forever free, as wdl to the inhabitants
of the said territory, as to the citizens of Ahe United States, and
those of any other states that may be admitted into the con-
Y federacy, without any tax, itpost, or duty terefor.
Article V of the Ordinance provides that a state formed in said
territory
shall be admitted, by its delegates, into the Congress of the United
States, on an equal footing with the original states in all respects
whatever, and shall be at liberty to form a permanent constitu-
tion and state government: ...
Wisconsin was admitted as a territory on April 20, 1836, and the
S Wisconsin Enabling Act in the first paragraph provided as follows:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled. That the
people of the Territory of Wisconsin be, and they are hereby,
authorized to form a constitution and state government, for
the purpose of being admitted into the Union on an equal foot-
ing with the original States in all respects whatsoever, by the
name of the State of Wisconsin.
Section 3 of the Enabling Act provided:
And be it further enacted, That the said State of Wisconsin
shall have concurrent jurisdiction on the Mississippi and all
other rivers and waters bordering on the said State of Wisconsin,
so far as the same shall form a common boundary to said State
and any other State or States now or hereafter to be formed or
bounded by the same; mwd said river and waters, and the wa'-


1


July]







WISCONSIN LAW REVIEW


igable waters leading into the same, shaol be common highways
and forever free, as well to the inhabitants of said State as to <
all other citizens of the United States without any tax, duty,
impost or toll, therefore. (Italics mine)
The act admitting the state of Wisconsin into the Union on March
4, 1849 (approved May 29, 1849) reads in part as follows:
Be it enacted by the Senate and the House of Representatives
of the United States of America in Congress assembled, That
the State of Wisconsin be, and is hereby, admitted to be one of
the United States of America, and is hereby admitted into the
Union on an equal footing with the original States, in all re-
spects whatever, ...
In the act admitting the state of Wisconsin into the Union, the
provision that the navigable' waters shall be public highways is
omitted. However, the constitution of the state, adopted by the
Territorial Convention on February 17, 1848, and approved by the
act admitting Wisconsin into the Union, contains the following
provisions:
... and the river Mississippi and the navigable waters leading
into the Mississippi and St. Lawrence, and the carrying places
between the same, shall be common highways and forever free,
as well to the inhabitants of the State as to the citizens of the
United States, without any tax, impost or duty therefore1 "
Such parts of the common law as are now in force in the
territory of Wisconsin not inconsistent with this Constitution
shall be and continue part of the law of this state until altered
or suspended by the legislature."
In 1853 the legislature took a further step in the formation of the
state policy with respect to waters of the state by adopting Chapter
72, Laws of 1853, approved April 5, 1853. This law declared that
the common law of England insofar as it may be applicable under
Wisconsin conditions, shall be the law of Wisconsin in "determining"
the boundaries of lands adjoining waters and the several respective
rights of individuals, the state, and its citizens in respect to all of
such lands or waters.

AcTS OF THE WISCONSIN LEGISLATURE
PERTAINING TO NAVIGABLE WATERS

Even before the adoption of the constitution, the Territorial
Legislatures of 1840 and 1841 considered the waters of the state of
Jwm. Camer. Aa. IX i 1.
WzB. -CoBr. Ar. XIV I 13.


[Vol 1946







LAW OF WATERS


such importance in the development and well-being of the state as
to require protection and regulation.
The Territorial Legislature of 1840 by Act No. 48 of the laws of
that year enacted the Milldam Act." The act authorized the owner
of a dam site on a nonnavigable stream to build a dam in the stream
S and to thereby flood the lands of others without their consent, sub-
l ject only to the payment of damages.
The purpose of the Milldam Act was to encourage the.construc-
tion of gristmills, sawmills, and other mills by permitting the flowing
of the lands of others without going through the slow process and
delay of acquiring flowage easements for the mill pond.
The next important step was taken by the Territorial Legislature
of 1841 which adopted Act No. 9 providing:
.... that all rivers and streams of water in this territory in all
places where the same have been meandered and returned as
navigable by the surveyors employed by the United States Gov-
ernment are hereby declared navigable to such an extent, that no
dam, bridge, or other obstruction may be made in or over the
same without the permission of the legislature.
In 1853, the act was amended" by the addition of the following
phrase:
... provided that nothing herein contained shall be construed
so as to affect any act now in force granting to towns or county
boards of supervisors the power to erect or authorize the con-
struction of bridges across such streams.
A navigable stream is a public stream, whereas a nonnavigable
Stream is a private stream which may not be used for any. purpose
without the consent of the owner of the land through which it flows.
Sections 2 and 3 of Chapter 41, Revised Statutes of 1858, read
as follows:
Section 2. All rivers and streams of water in this state,
in all places where the same have been meandered, and returned
as navigable by the surveyors employed by the United States
government, are hereby declared -navigable to such an extent
that no dam, bridge, or other obstruction may be made in or over-
the same, without the permission of the legislature: provided,
that nothing herein contained shall be construed so as to affect
any act now in force granting to towns, or county boards of
supervisors, the power to erect or authorize the construction
of bridges across such streams.

s Now Wis. STATS. i 3131 to 31.34 (1945).
1Wis. LAws 1853, C. 72.


0


July]







54 WISCONSIN LAW REVIEW [VoL 2946

Section 3. The boundaries of lands adjoining waters, and
the several and respective rights of individuals, the state, and
its citizens in respect to all such lands and waters, shall be de-
termined in conformity to the common law, so far as applicable,
as evidenced by judicial determinations in other states, in which
the courts in such cases have adhered to its principles.
Section 112 of Chapter 19, Revised Statutes of 1858, provides
as. follows:
Section 112. Whoever shall obstruct the navigation of any
river or stream, which now is, or hereafter may be made, nav-
igable, by falling any tree therein, or putting into any river or
stream, declared a public highway, any refuse lumber, slabs,
or other waste materials, on conviction thereof, shall forfeit
the sum of five dollars for any such offense; and shall be further
liable for all damages that may accrue on account of such ob-
struction.
The foregoing section was revised and now appears as section
31.23, Wisconsin Statutes.
The legislature of 1867, in order to encourage the development of
lands suitable for the cultivation of cranberries, enacted Chapter 40
of the laws of that year," modeled somewhat after the Milldam
Act. It authorizes a person owning land adapted to the culture of
cranberries to build a dam on any water course or ditch and to
construct upon the land of others such ditches as may be necessary
to flow the land and to carry away the water, subject only to the
payment of damages to be ascertained by arbitration, as provided
in the act. The state of Wisconsin is now the third state in the pro-
duction of cranberries.

JUDCIAL DECISIONS ON WHAT CONSTrTUTES A
NAVIGALEX STREAM

Since the state of Wisconsin has no tidewater, the English test
of the flow and ebb of the tide was repudiated and the test of nav-
igability in fact was adopted. When the question of "what con-
stitutes a navigable stream" came before the courts, logs had been
floated down many streams in the state for many years. The first
sawmill in Wisconsin was built on the Fox River at De Pere in
1809. The first one on the Black River was built in 1819; and on
the Wisconsin River in 1831.

"Now Wa STAlT. I 94.26 to 94.32.
10








LAW OF WATERS


In Jones v. Pettibone," the court held that the fact that a stream
has been meandered and returned as navigable is not the test of
navigability, but only that it shall be regarded as navigable to the
extent that no obstructions may be placed in the same without the
consent of the legislature.
However, in Wister v. Wilkinson, t at.," the court held that the
rivers of the state capable of floating the products of the country,
such as logs, rafts, and lumber, are by the common law public
highways.
A few years later, in Olson v. Merri,t the question arose whether
Levis Creek, a nonmeandered stream, in Jackson Couity at a point
six miles above its mouth, having a drainage area of 20 square
Smiles, is navigable.
From the statement prepared by the official reporter, the follow-
Sing facts appear.*
In 1863, before the logs were driven, there was brush cross
the creek, and alders on each side, and it had formed alder
tow-heads. Without the improvement that was put on, we could
not have run a log down .. You could not see any creek, on
account of the brush and alders; ... and some cuts had to be
Made, as a sixteen-foot log would not swing around in some
places unless there was a cut made.
It also appears that men were stationed on both banks of the
stream to keep the logs moving. The stream could not be used for
log driving at low stage or even at ordinary stage of water but only
during certain "rises" which usually occurred to the number of
three or four each year-in the spring and summer. Such rises
varied in duration from four to thirteen days. Logs had been
driven down the stream to a sawmill for more than five years.!
The court in holding the stream to be navigable made the state-
ment:"
S. We deem it essential to the public interest in the pine-
growing regions of the state, spoken of in Whisler v. Wilkisos,
to adopt the rule collected from the authorities in Angell on
Watercourses, Sec. 537, and substantially adopted in the charge
of the court below: "Nor is it essential to the public easement
S2 Wi. 225 (1853).
22 Wi. 546 (1868).
2 42 Wi. 203 (1877).
SOlson v. Meni, 42 Wis. 20, 207 (187).
S"Oson v. Marml, 42 Wj. 203, 204 (187).
"See alo Nelkooa Edwan= Paper C, v. Ralrad Commsioum 301 Wsb 40,
28 N.W. 144 (1929).
SObon v. Merrll, 42 Wis 203, 212 (1877).


I


Muly]







WISCONSIN LAW REVIEW


that the capacity of the stream, as above defined, should be con-
tintous; or, in other words, that its ordinary state, at all seasons
of the year, should be such as to make it navigable. If it is
ordinarily subject to periodical fluctuations in the volume and
height of its water, attributable to natural causes, and recurring
as regularly as the seasons, and if its periods of high water or
navigable capacity ordinarily continue a sufficient length of time
to make it useful as a highway, it is subject to the public ease-
ment.
Eventually the question "what is a nonnavigable stream" as used
in the Milldam Act came before the supreme court.
In an early case the court held that "the words 'any stream that
is not navigable,' in the Milldam law (sec. 1, ch. 56, R.S. 1858, 1
Taylor Statutes, 812) were designed to exclude not only streams
which are navigable in fact, but such as have been legally declared
public highways."27
In Allaby v. Mauston Electric Service Co.," the court held that
the test of navigability under the Milldam Act is not the same as
the test of navigability with reference to determining whether a
stream is a public highway or waterway. The court said:
In view of the extent to which this court has gone in declar-
ing streams navigable in the sense that they are public highways,
it is obvious that the word was used in this statute in a very
different signification .... A stream so petty that a saw log
or a skiff cannot be floated upon its waters in the manner de-
scribed in Olson v. Merrill, supra, would certainly yield no
water power of any practical value to appliances such as were
common in 1840.
The following streams were held to be nonnavigable within the
meaning of the Milldam Act: the Lemonweir River at Mauston
having 550 square miles of drainage area;" the Apple River at
Somerset having 450 square miles of drainage area;"O and the Yahara
River at Madison locks having 251 square miles of drainage area.n

OWNERSHIP OF THE BEDS OF NAVIGABLE WATER
In Illinois Steel Co. v. Bilot," the court held that the United
States never had title to lands under lakes, ponds, and navigable
rivers of the United States except in trust for public purposes.
'2Wood v. Hustis, 17 Wis. 439 (1863).
27 For list of streams declared navigable, see Wis. STATS. 1898 I 1607. Repealed
by Wis. LAws 1917, C. 335, 6.
S135 Wis. 345, 116 N.W. 4 (1908).
9 Allaby v. Mauston Electric Service Co., 135 Wis. 345, 116 N.W. 4 (1908).
8 McDonald v. Apple River Power Co., 164 Wis. 450, 116 N.W. 156 (1916).
3" Clute v. Briggs, 22 Wis. 579 (1868).
"109 Wis. 418, 84 N.W. 855 (1901).
12


[Vol. 1946







July] LAW OF WATERS 357

To the same effect is the case of Shively v. Bouwby."
In the case of'Priewe v. Wisconsin State Land and Improvement
Co.," our court used the following language:
It has repeatedly been held, in effect, by the Supreme Court
of the United States that it is for the several states themselves
to determine to what waters and to what extent the prerogatives
of the state shall be exercised in regulating and controlling
the shores of such waters and the lands under them, and that,
if any state determine to resign to riparian proprietors rights
Which properly belong to it in its sovereign capacity, it is not
for others to raise objections.
So, also, in Ne-pee-nauk Club v. Wilson, et al.," the court said:
Grants by the United States of lands bounded by lakes and
streams are to be construed and given effect according to the
law of the state in which the lands lie. And each state deter-
mines for itself to what extent it will retain and exercise its
prerogatives over lands under such streams and bodies of water.

THE EFFECT OF A UNITED STATES PATENT PURPORTING TO
CONVEY LAND COVED BY NAVIGABLE WATER

A United States patent to land on a navigable lake or stream stops
at the water's edge." Any interest which a riparian proprietor has
in the bed of a navigable lake or stream, aside from those denom-
inated riparian rights under the common law, are acquired by
virtue of state policy.
.Thus the holder of a United States patent on a navigable stream,
by virtue of state policy, takes to the middle of the stream, subject
to the public right of navigation, hunting, fishing, boating for rec-
reation, or any other lawful purpose. If he owns both banks, he
owns the entire bed of the stream."
As a result of the state's abandonment of the bed of a navigable
stream to the owner of the banks, the ownership of the ice that

152 U. S. 1 (1893).
93 Wis. 534, 546, 67 N.W. 918 (1896).
"96 Wis. 290, 295, 71 N.W. 661 (1897). See also State ex rel Dawson v.
Akers, 92 Kan. 169, 140 Pac. 637 (1914).
"Yates v. Milwaukee, 77 U. S. (10 Wall.) 497 (1870) ;Boorman v. Sunnuchs,
42 Wis. 233 (1877); Mendota Club v. Anderson, 101 Wis.)479, 492, 78 N.W. 185
(1899); Delaplaine v. Chicago & North Western Ry. Co., 42 Wis. 214 (1877);
Angelo, et al. v. Railroad Commission of Wisconsin, 194 Wis. 543, 217 N.W.
570 (1928).
TJones v. Pettibone, 2 Wis. 225 (1849); Walker v. Shepardson, 4 Wis. 495
(1855); Delaplaine v. Chicago & North Western Ry. Co, 42 Wis. 214 (1877);
Olson v. Merrll, 42 Wis. 203 (1877).








358 WISCONSIN LAW REVIEW [Vol 1946

forms over the bed of a navigable stream is in the owner of the
bed." The title to ice formed on streams and ponds which are
subject to private ownership belongs to the owner of the bed."
It would seem that the owner of the bed of a navigable river is
the owner of the sand, gravel, and ores found in the bed which he
may remove provided that he does not thereby impair the rights of
the public for navigation and its incidents.'0


TITE TO THE BEACH OF A NAVIGABLE LAKE

The question frequently arises whether the public may, as a
matter of right, travel upon the beach of a navigable lake. The
leading case on that problem is Doemel v. Jantz."' Our interpreta-
tion of the decision in that case is that the title to the upland stops
at the ordinary high-water mark and, conversely, that the title of
the state to the bed extends to the ordinary high-water mark; that
the fee owner of the upland has an easement to the strip of land
between the ordinary high-water mark and the water's edge, wher-
ever that may be, down to the ordinary low-water mark which gives
him the exclusive right of access from his land to the water and
from the water to his land until the water recedes below the ordinary
low-water mark. It would be illogical to hold that the boundary
along a navigable lake is a fluctuating boundary depending on the
stage of water in the lake.
If the water recedes below the ordinary low-water mark, the
public right in the navigable water would seem to extend to the
exposed bed up to the ordinary low-water mark.'
The legislature in 1895 enacted Chapter 328 of the laws of that
year, which reads as follows:
Section 1. All lakes within this state, which have been
meandered and returned as navigable by the surveyors em-
ployed by the government of the United States, or which have
been so meandered and are navigable in fact, are hereby de-
clared navigable and public waters, and all persons shall have
the right and privilege to pass to and fro, and be, and remain,

"Rossmiller v. State, 114 .Wis. 169, 89 N.W. 839 (1902); Reyson v. Roate,
92 Wis. 543, 66 N.W. 599 (1902); Haase v. Kingston Cooperative Creamery Co.,
212 Wis. 585, 250 N.W. 442 (1933).
Gadow v. Hunholz, 160 Wis. 293, 151 N.W. 810 (1915).
"See Florida v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640 (1893).
41180 Wis. 225, 193 N.W. 393 (1923).
SSo held by the Public Service Commission in a case involving Middle
Genesee Lake in Waukesha County, Docket 2-WP-19 (1931).


U







LAW OF WATERS


thereon, and to have and enjoy all other rights and privileges
thereon, and thereto, to the same extent and with like effect
as in, to, and over, and upon all other navigable or public waters
Within this state; provided, this act shall not affect pending
litigation or interfere with any vested rights that have hereto-
fore been acquired upon any such lakes or streams.
Section 2. All acts and parts of acts inconsistent or conflict-
ing with this act are hereby repealed.

ARTIFICIAL PONDS

An artificial pond created by the damming of a nonnavigable
stream or through the drilling of artificial wells, even though suf-
ficient in size to be capable of navigation,'is private property of the'
owner of the bed."


DELEGATION OF LEGISLATIVE FUNCTIONS TO STATE
DEPARTMENTS AND TO ADMINISTRATIVE AGENCIES

From 1836 to 1910 the legislature granted 665 franchises for the
construction of dams for various purposes, such as the development
of power, improvement of navigation, to facilitate log driving, boom-
age, or pisci culture, to feed canals, to create ponds, to flow cran-
berry marshes, for the "public good," and for general municipal
purposes. Besides the foregoing, many franchises were granted for
the construction of bridges, levees, canals, etc., and in addition
many dams were constructed under the Milldam Act.
SThe 1909 legislature appointed a special legislative committee to
study water power, forestry, and drainage, and report the same with
its recommendations to the 1911 legislature. No franchises for
dams were granted after the appointment of the special legislative
committee. The report of the committee resulted in the so-called
Water Power Acts of 1911, 1913, and 1915.
Under those acts, the Railroad Commission of Wisconsin (now
Public Service Commission of Wisconsin) was given exclusive
jurisdiction and power to issue permits for the construction of
dams in navigable water, certain jurisdiction over dams constructed
under the Milldam Act, and responsibility for solving the numerous
problems arising from obstructions in navigable water.

"Delta Fish and Fur Farms Inc. v. Pierce, 203 Wis. 19, 234 N.W. 881 (1931).
15


July]







360 WISCONSIN LAW REVIEW IVoL 1946

There were various reasons for this delegation of power, the fore-
most'of which was to provide for the recapture by the state of the
so-called "white coal" or water power. It was believed that the state '
should share in the benefits of the potential power which resides in
falling water which could only be captured by the consent of the
state.
Other reasons for the delegation of power were that the legis-
lature no longer had time or sufficient knowledge to study the plans
for dams or to supervise their construction, and the failure of a
dam might cause loss of life and damage to property, as was the
case in 1911 when the reservoir dam and the Hatfield Dam in the
Black River failed and caused the destruction of most of the business
section of the city of Black River Falls.
This delegation of power to state departments and administrative
agencies was not new. The legislature formerly granted corporate
franchises, a function now delegated to the Secretary of State. It
changed the names of individuals, a change which is now accom-
plished under the general law. It determined who the heir of a
person was, now the function of the county court. The Territorial
Legislature granted divorces from the bonds of matrimony, a power
which is now within the jurisdiction of the circuit court. An amend-
ment to the constitution in 1871" prohibits the enactment of any
special or private laws pertaining to the foregoing and other subjects.
The Water Power Laws of 1911 and 1913 contained certain pro-
visions considered unconstitutional, resulting in the enactment of
the 1915 Water Power Law, under which the Public Service Com-
mission is now acting. This will be discussed later in this article.

THE CUT-OVER LAND SECTION OF THE STATE

By 1900 log driving had practically ceased, and the forests were
denuded not only of the floatable pine timber but to a great extent
of the hardwoods. Many of the small water powers which turned
the machinery of gristmills and sawmills and other mills, as they
required major repairs, were being abandoned, since it was cheaper to
purchase power from a high-voltage transmission line as these were
gradually extended to different parts of the state. The recreational
industry was gradually supplanting the lumbering, and it demanded
the strict interpretation of the new definition of "navigable stream,"

"Wrs. Cowsr. ART. IV 1 31.
16







LAW OF WATERS


--that is, a stream "navigable for any purpose whatsoever." Private
fishing and hunting grounds were frowned upon and it was felt
that navigable water should not be used for those purposes.


WATER STORAGE RESERVOIRS

The water-power owners on the Wisconsin River brought about
the enactment of Chapter 335, Laws of 1907, which authorized the
Wisconsin Valley Improvement Company to construct, operate, and
maintain water-storage reservoirs for stream regulation and power
production. Flood waters are stored in the reservoirs to be released
S during times of low stream-flow, thereby increasing the power out-
put of each plant with little or jo additional expense to the plant
machinery in the mills or the cost of opemtifn. The oisconsin
Valley Improvement Company maintains and pirates 22 water-
storage reservoirs having a combined capacity of 167,25)00,000
cubic feet of water.
A similar system of water-storage reservoirs is being maintained
and operated at the headwaters of the Chippewa and Flambeau
rivers by the Chippewa and Flambeau Improvement Company pur-
suant to the provisions of Chapter 640, Laws of 1911. This com-
pany operates four water-storage reservoirs having a combined
capacity of 17,310,000,000 cubic feet of water.
The Northern States Power Company also maintains and operates
four water-storage reservoirs on the headwaters of the Chippewa
River having a combined capacity of 2,597,000,000 cubic feet of
water.
The reservoirs are operated under the supervision of the Public
Service Commission, which fixes the tolls. The entire cost of the
construction, operation, and maintenance of the reservoirs is paid
for in tolls collected from the water powers in proportion to the
benefits conferred upon them by the released water.

1911 AMENDMENT OF THE STATUTORY DEFINITION
OF WHAT CONSTITUTES A NAVIGABLE STREAM

In 1898, navigable streams were defined as follows :
All rivers and streams which have been meandered and re-
turned as navigable by the surveyors employed by the govern-
ment of the United States are hereby declared navigable so far
Wis. Sars. I 1596 (1898).


Jutk]







362 WISCONSIN LAW REVIEW [VoLt 94

as the same have been meandered, to the extent that no dam,
bridge, or other obstruction shall be made in or over the same
without the permission of the legislature; .
By section 1, Chapter 652, Laws of 1911, the first water power
act, this was amended to read:"
Section 1596(1). All rivers and streams which have been
meandered and returned as navigable by the surveyors employed
by the government of the United States and all rivers and
streams meandered or nonmeandered which are navigable in
fact for any purpose whatsoever are hereby declared navigable
to the extent that no dam, bridge, or other obstruction shall be
made in or over the same without permission of the legislature.
The amendment wrought a far-reaching and important change in
the definition or description or conception of the term "navigable
stream," but the courts have not, so far as we have been able to
ascertain, interpreted the meaning of the phrase "navigable in fact
for any purpose whatsoever." The amendment was doubtless in-
tended to bring into the navigable class many streams which were
nonnavigable under the old definition.
The Milldam Act uses the negative of the definition of navigable
streams. Section 3374, Statutes of 1898, provided:
Any person may erect and maintain a water mill and a dam
to raise water for working it upon and across any stream that is
not navigable upon the terms and conditions and subject to the
regulations hereinafter expressed.
By section 1, Chapter 533, Laws of 1911, the foregoing section
was amended to read:
Section 3374. Any person may erect and maintain a water
mill and a dam to raise water for working it upon and across
any stream that is- not navigable in fact for any purpose what-
soever upon the terms and conditions and subject to the reg-
ulations hereinafter expressed.
And in the chapter of the Wisconsin Statutes on Water Power
Law, under the heading "Definitions," it is provided as follows:"
"Navigable waters" means all waters declared navigable by
Chapter 30 of these statutes.
Thus, since the 1911 amendment, streams fall in only two class-
ifications, namely, those which are navigable in fact for any purpose
"Now Wis. STATs. 30.01 (2) (1945).
4 Wzs. STATS. I 31.01 (2) (1945).







LAW OF WATERS


whatsoever and therefore public for log driving and other lawful
purposes, and those which are not navigable for any purpose what-
soever and therefore private. The amendment wiped out the tech-
nical meaning which the courts had applied to the term "nonnav-
igable" in the Milldam Act. Since the amendment a milldam may
only be constructed in a stream not navigable for any purpose
whatsoever, or in other words, only in a stream in which the owner
of the land through which it flows may also construct a dam under
the common law without further legislative permission, subject only
to the supervision and control of the Public Service Commission.
Consequently it is unlikely that any dam will in the future be
built under the Milldam Act. A stream not navigable for any pur-
pose whatsoever, let us say for the floating of pulpwood, "would be
too small and would also be economically unsound for power de-
Svelopment.
The Milldam Act" was renumbered, revised, repealed, and con-
solidated with the Water Power Law" and placed under the juris-
diction of the Railroad Commission of Wisconsin (now Public
Service Commission of Wisconsin) by Chapter 474, Laws of 1917.
It now appears as sections 31.31 to 31.34, Wisconsin Statutes (1945).

THE WATER POWER LAW CHAPTER 31, STATUTES

GENEaAL STATEMENT
The Water Power Law grants to the Public Service Commission
the right to hear and determine matters or causes in eight fields or
spheres of authority:
Regulation of the flow and level of waters; issuance of permits
to construct dams in navigable streams; issuance of permits for the
diversion of surplus water from one watershed to another; authoriza-
tion of private persons to construct and maintain a bridge across
any navigable water having a width of 35 feet or more; unlawful
obstructions in navigable waters; making of contracts on behalf of
S the state of Wisconsin for the removal of materials from the beds
of navigable lakes, such as sand, gravel, marl, etc.; the Milldam
Act; dams in nonnavigable streams, other than dams constructed
under the Milldam Act. The law contains 36 sections and covers
only 11 pages in the statutes.
The Public Service Commission in exercising its power and per-
forming its duties under this law must also be guided and con-
*WS. STATS. Ca. 145 (1915).
SWIs STATS. CI. 69m (1915).


Jlyl







WISCONSIN LAW REVIEW


[Vo. 1946


trolled" by the powers with which it is invested, namely, the chapters
on Regulation of Public Utilities," and Municipal Acquisition of
Utilities."
The phrases "in the interest of public rights in navigable water"
or "so as to conserve and protect all public rights in navigable
waters" or "violate public rights" or similar phrases occur many
times in the Water Power Law. Before the commission may prop-
erly administer the law, it must know what those phrases mean.
There is nothing in the statutes anywhere that tells what rights the
public has in navigable water. The statute does not even define the
term "navigable in fact" or "navigable in fact for any purpose
whatsoever," and so to determine the meaning of those terms one
must look elsewhere in the law, in the decisions of the courts.
The fact, as will appear from a reading of the law, that many of
the provisions of the Water Power Law are couched in general terms
makes the law a vital living force which grows and expands with
the needs of the people. We do not mean to imply that the com-
mission may read into the law something which is not there, but
rather that the law may be interpreted in the light of present-day
knowledge, practices, and customs, and this process of adapting the
rules of law pertaining to waters to the needs of the people is still
going on.
In 1924 the Public Service Commission sponsored the enactment
of Chapter 523, Laws of 1929, which provides:
S. The enjoyment of natural scenic beauty is declared to
be a public right, and if the commission shall find that the
construction, operation or maintenance of a proposed dam is
contrary to the public interest, when the public right to the
enjoyment of natural scenic beauty is considered, no permit
shall issue.
Under this act the commission" denied an application of the
Mellen Granite Company for a permit to construct a dam across the
Potato River in Iron County for the reason that waterfalls and
cataracts for about one mile of river in a scenic gorge would be
forever destroyed.
I In 1935, after a prolonged dry period, the legislature authorized
the diversion of surplus water from one watershed to another," a


"0Wis. STATS. I 31.03 (1945).
s WIs. STATS. CH. 196 (1945).
2 WIs. STATS. Cn. 197 (1945).
"Docket 2-WP-326.
"Wis. LAws 1935, C. 287.







LAW OF WATERS


law likewise sponsored by the commission. In 1941, the legislature
invested the Public Service Commission with power to authorize a
private person to construct a bridge across navigable water having
a width of 35 feet or more."
There appears to be a need for additional legislation to make our
d navigable waters still more serviceable and more enjoyable to the
public. It might, for example, be desirable to empower municipal-
ities to authorize the construction of harbors for small boats in our
4. inland waters, subject to the approval of the Public Service Com-
mission, such supervision being necessary to provide more or less
uniformity in developments of that character.
SWe now consider the jurisdiction of the Ptblic Seriee Com-
mission in the eight fields of authority previously outlined.



REGULATION OF THE FLOW AND LEVEL OF WATERS

The commission has set bench marks at 1,200 dams to establish
a position or datum from which may be reckoned the height of
dams, spillways, and other structures, the level of lakes, rivers,
canals, etc. It has from time to time taken and recorded the eleva-
tions of such structures and of water levels with reference to the
datum of the bench-marks. One of the purposes of securing.and
recording such information is to determine whether water power
owners and the owners of other dams controlling water levels are
complying with the requirements of the franchise or the permit of
the Public Service Commission under which they are operating, and
more particularly whether they are maintaining the level of water in
the mill pond or lake at normal or, as the case may be, within the
minimum or maximum level established by the commission. The
commission has thus determined, found and recorded the normal
levels of many ponds and lakes. It has in numerous cases determined
the maximum level of water that may be impounded by milldams
or reservoir dams and the minimum level of water to which the mill
pond or reservoir may be reduced by the release of water through
such dams.
Forty-two gaging stations are being maintained by the commission
in co-operation with the Geological Survey of the United States
Department of the Interior for measuring and recording the vol-

"WIs. LAws 1941, C. 331


July]







3B6 WISCONSIN LAW REVIEW IVoL 1946

ume of flow in the streams. These records are used for various
purposes, such as to determine the amount of power which may be
developed in the stream; to estimate the quantity of flood water
which a dam may be required to withstand; to determine the flood
capacities required for highway bridges; to forecast flood stages in
river valleys.
Stream-flow records are essential to properly solve certain prob-
lems involving riparian rights. Long-time records are very valuable
in solving controversies over the reasonableness of diverting certain I
quantities of water from a stream for manufacturing processes,
cranberry culture, irrigation, and the like. Without stream-flow
records for a sufficient number of years it is impossible to determine
with any degree of accuracy the most feasible water-wheel capacity
for a particular water power or the minimum gate capacities for
controlling floods.
The waters included in this sphere of activity fall into the follow-
ing classes: navigable streams; nonnavigable streams; natural and
navigable lakes; lakes artificial and nonnavigable in the sense that
they are not public.
When a dam is to be erected to control the water level of a
natural lake, the commission must find what the normal level of the
lake is, or in a proper case establish the minimum and maximum
levels to be maintained within the ordinary low- and the ordinary
high-water marks. When all riparian owners on the lake agree
upon a level different from the ordinary level to be maintained and
no public rights will thereby be adversely affected, the commission
may authorize maintenance of such agreed level or levels. A greater
latitude may be allowed in the fluctuation of the water levels in
artificial lakes than in natural lakes. -
The purpose of establishing such water levels may be, among
others: to protect the public water supply in the interest of public
health; to protect highways and bridges; to protect shorelines; to
protect agricultural lands; to aid navigation; to protect and conserve
hunting and fishing grounds; to protect spawning grounds; to equal-
ize the outflow for the watering of stock; and for numerous other
purposes, as for example, at Colfax, the commission fixed a min-
imum flow to preserve navigation and fish life between the dam and
the tailrace of the power plante*
By Chapter 151, Laws of 1933," the legislature provided that a

"' Docket WP-115, 23WRC866.
"Wis. STATS. I 31.34 (1945).
22




w_ -I


July] LAW OF WATEaS 367

dam in a navigable stream shall pass at all times "at least twenty-
five per cent of the natural low flow of water of such stream," except
when the water is discharged directly into a lake, mill pond, storage
pond, or cranberry marsh. There is an important exception to the
general rule in the proviso that the act shall not apply to cases
"where in the opinion of the Public Service Commission such min-
imum discharge is not necessary for the protection of fish life." The
statute does not define the phrase "natural low flow of water of such
stream." The commission held this to be the fow at the 90% point
on the duration curve.
In State ex rel Priegel v. Northern States Power Co.," it is held
that the primary purpose of section 31.34, Statutes, is to protect
the rights of lower riparian owners to a reasonably adequate natural
flow of the stream against upper owners cutting off-such flow.
Section 31.18 of the Statutes provides that the grantee of a per-
mit and the owner of a dam constructed before permits were required
by law ... shall not wilfully, or otherwise, injure, remove or destroy
the same, or any part thereof, unless the commission shall have ap-
proved such removal or destruction in writing.
Problems difficult to solve may arise under this section. If, for
example, the owner of a dam constructed and maintained pursuant
to a permit or a legislative franchise wishes to abandon it and be
relieved from his obligation to maintain and operate it, but cannot
for valid reasons obtain the consent of the commission to do so and
he thereupon conveys it to fictitious or impecunious persons, the
question arises whether the commission may in any manner enforce
compliance -with the statute which requires the owner to maintain
the dam in good condition, particularly in cases where the dam has
no economic value and from that standpoint is not worth rebuilding.
In State of Wisconsin v. Tomahawk Hydro Electric Company"
involving the Tomahawk dam in the Wisconsin River, the owner of
the dam had failed to make repairs to the dam as ordered by the
commission on the ground, as the facts were, that all of its property,
including the dam, was heavily mortgaged, and that the company
was insolvent.
The Public Service Commission thereupon caused an action to be
brought against the owner to enforce compliance with its order. The
circuit court, after a trial, ordered the dam sold free and lear of in-
cumbrances to a purchaser willing to make the repairs. On the sale,

242 Wi. 345, 8 N.W. (2d) 3S0 (1943).
Docket 2-WP-103, 4 P.S.C.R. 467.
23


--- Ic~~r~RsO~~E~C~hl-


I







368 WISCONSIN LAW REVIEW [VoL 1946

the dam was purchased by the Wisconsin Public Service Corpora-
tion for approximately $8,000, and it has since been reconstructed."
It would seem to be reasonable that when a dam has outlived its
usefulness for the purpose for which it was constructed, the owner
of the dam is entitled to an order authorizing its removal or abandon-
ment unless he is under some obligation to maintain the pond, such
as the sale by him of water lots on the pond with the express or
implied agreement that the pond would be maintained. The com-
mission has in a number of cases authorized the abandonment of
damrs.

II

ISSUANCE OF PERMITS TO CONSTRUCT DAMS IN
NAVIGABLE STREAMS

Exclusive jurisdiction is conferred upon the Public Service Com-
mission" over the granting of permits to construct, operate, and
maintain dams in navigable streams and over other matters by
Chapter 31 of the Statutes. There are two apparent exceptions with
reference to the exclusive power of the commission to grant permits
for dams in navigable streams. These are contained in the reservoir
laws previously described.
When the Water Power Law of 1915 was enacted, the Wisconsin
Valley Improvement Company' and the Chippewa and Flambeau
Improvement Company" had been granted the perpetual right to
construct dams in the Wisconsin River and its tributaries and in
the Chippewa and Flambeau rivers and their tributaries, respectively.
The Public Service Commission has jurisdiction over the activities
of those corporations," such as the approval of plans for the dams
and other structures, determination of costs, apportionment of
tolls, etc.
The general powers of the commission under this subdivision are:
To issue permits for the construction of dams in navigable streams
for any lawful purpose,

Docket 2-WP-103, 4 P.S.C.R. 467.
6 The Public Service Commission was originally designated Railroad Com-
mission. Its name was changed by Wis. LAWS 1931, C. 183.
l WIs. LAws 1907, C. 335, as amended.
SWIs. LAws 1911, C. 640, as amended.
8 The reservoir laws provide that the state of Wisconsin, when it shall have
the constitutional power, may acquire the reservoirs by paying therefore the actual
costs of them to those companies.
"Wis. STATS. I 3104 (1945).
24








LAW OF WATERS


To issue permits to legalize dams existing without legislative
authority;"
To grant permission to rebuild, raise, and enlarge existing dams;"
To deny a permit if the commission finds that the proposed dam is
contrary to the public interest when the public right to the enjoy-
ment of natural scenic beauty is considered;"
To issue certificates of public convenience and necessity authorizing
the acquisition by a domestic electric utility of a developed or an
undeveloped water power or dam site at a price designated in such
certificate;*a
To fix the "water power value" under section 31.09 before issuing
a permit if the dam is capable of developing fifty theoretical horse
power or more available for fifty per cent of the time;
To determine methods of construction, operation, maintenance, and
equipment for any dam in order to protect public rights in public
waters;
To require the construction in connection with dams of log chutes,
boat locks, fishways," spillways, booms, piers, etc. ;'
To authorize the owner of a dam to remove or abandon it;"
To require the lands to be flowed to be cleared of brush and timber
before flooding the same;"
To inspect'dams'as to safety in both navigable and nonnavigable
streams, and to require alterations and repairs to be made to dams
and reservoirs in order to make them safe; or to require the
owner of a dam to draw the water from the pond to prevent im-
pending danger to persons or property below the dam;"
To approve or withhold approval of the transfer or assignment of
a permit;" and
To hold investigations and make findings as to whether a dam main-
tained under a permit is owned or controlled in violation of section
S31.22, which prohibits unlawful combinations or trusts, as therein


SWIs. SraS. I 31.07 (1945).
eWi. STATS. 1 31.13 (1945).
"Wis. STAT. I 31.06 (3) (1945); See Docket 2-WP-326.
SWs. STATS. I 31.15 (1945).
Fishways of the Barr type were ordered in seven dams.
In Docket 2-WP-10, the apigation for a ishway in the dam which crated
Lake Chippewa, Sawyer County, *as denied on the ground that the cost (about
$2S,000) would be too great for the rate payer to bear. (March 17, 1933).
In Docket 2-WP-238, the commission authorized an expenditure of $10000 for
a fish hatchery at this dam in lieu of a fishway, pursuant to section 31.02 (4) (c).
(September 27, 1937).
SWxs. STAT. 31.02 (1945).
n Ws. STATS. 31.18 (1) (1945).
n Wis. STATS. 31.18 (4) (1945).
SWis. STATS. 31.19 (1945).
Wzs. SrTTs. J 31,21 (1945).


July]







370 WISCONSIN LAW REVIEW IVol 1i46

defined, or is the subject of a conspiracy to limit the output of
hydraulic power or unlawfully to restrain trade in the generation
or distribution of hydroelectric power derived therefrom.
The matter of issuing permits involves both engineering and legal
problems, and information must be collected and considered. As
already indicated, stream-flow records are necessary to determine the
necessary flood capacities of the spillways and gates and to determine
the strength which will be required to make the dam safe against
floods. Such records are also essential to determine whether the
development would be justified from an economic standpoint.
In this connection it may be pointed out that, even with the
knowledge in the possession of the United States engineer who de-
signed the Portage dam in the Fox River, the dam came very near
failing in 1926. Had this occurred, water from the Wisconsin River
would have been diverted into the Fox River and have resulted in
untold damage. An illustration of the results of the lack of long-time
stream-flow records is the failure of the Dells dam in the Black
River in 1911 which caused or contributed to the failure of the Hat-
field dam and the destruction of much of the business section of Black
River Falls.
Another illustration of the danger of proceeding to construct a
water power without adequate stream-flow records is the Dells dam
in the Prairie River near Merrill. The dam was constructed in 1904
or 1905. The dam and powerhouse were constructed of stone
masonry. The dam had six floodgates, and developed a head of 50
feet. One 2-runner turbine was installed and connected to a horizon-
tal 1,400 kw. generator, but after the installation was completed,
it was found that the flow was insufficient to turn the machinery.
The machinery was later removed, and the powerhouse has gone to
decay. In these cases there appear to have been insufficient stream-
flow records or they were unintelligently treated. If long-time stream-
flow records had been available, it would have resulted in a stronger
design for the Dells and Hatfield dams, and the Prairie River dam
would not have been constructed.
The proposal under the recapture clause" must be filed in two
cases, namely: (a) with an application for a permit to build a dam;"
(b) with an application to legalize a dam which was constructed
without legislative authority." A permit to rebuild or enlarge a
dam, on the other hand, does not require the proposal under the re-
capture clause.
The procedure to acquire a permit is simple. Blank application
forms may be obtained frofn the commission. Notice of hearing on
the application must be given by publication in a newspaper des-
ignated by the commission, and by personal service upon all persons
whose lands will be affected by the proposed project.
"Wis. STATS. 1 31.09 (1945).
"Nekoosa Edwards Paper Co. v. Railroad Commission, 201 Wis. 40, 229 N.W.
631. (1930).
"Fox River Paper Co. v. Railroad Commission, 189 Wis. 626, 208 N.W. 266,
274 U. S. 651 (1926).








LAW OF WATERS


It was held in New Lisbon v. Harebo, et al.," that the commission
may not withold a permit merely because the applicant has not
acquired all of the flowage rights. Prior to the decision in the
New Lisbon case, the Commission held that an applicant for a
permit may be required to secure all flowage easements before
the issuance of a permit. The departmental rule was believed to
be in the interest of owners whose lands would be required for
flowage, particularly those who might lose their rights where the
amount of damage to the land flowed might be less than the cost
of attorneys' fees to conduct a condemnation suit, or who for other
reasons might be unable to vindicate their rights.
I When there are numerous owners whose lands will be flooded, as
in the case involving the Billy Boy dam in the Court Oreilles chain
of lakes, Sawyer County," it is far easier to secure the necessary
flowage rights before the permit is granted than afterwards. In this
case, among the signers of flowage easements appear the names of
Annie, William, Joseph, and Alta Isham Billy Boy; John Blue-
Sky; John Stone; Mayme Gobler; Antoine Crowe; George and
Joseph Crow.
The valuation made by the commission under section 31.09 is
only for the purpose of acquisition by the state. It is not usable
for other purposes, such as in rate cases; stock and bond, or other
securities authorizations; or for taxation purposes.

III

IsSUANCE OF PERMITS FOR THE DIVERSION OF SURPLUS WATER
FROM ONE WATERSHED TO ANOTHER

Section 31.14 was enacted by Chapter 287, Laws of 1935, fol-
lowing a series of dry years from 1930 to 1934, inclusive. Sub-
sections (1), (2), and (3) of section 31.14 read as follows:
(1) It shall be lawful to temporarily divert the surplus
water of any stream for the purpose of bringing back or
maintaining the normal level of any navigable lake or for main-
taining the normal flow of water in any navigable stream,
regardless of whether such navigable lake or stream is located
within the watershed of the stream from which the surplus water
is diverted, and water other than surplus water may be diverted
with the consent of riparian owners damaged thereby for the

"224 Wis. 66, 271 N.W. 659 (1937).
"Docket 2-WP-232.
27


___ __ _________________________


July]







WISCONSIN LAW REVIEW


purpose of agriculture or irrigation but no water shall be so
diverted to the injury of public rights in the stream or to the
injury of any riparians located on the stream, unless such
riparians shall consent thereto.
(2) Surplus water as used in this section means any water
of a stream which is not being beneficially used.
(3) The public service commission may determine how much
of the flowing water at any point in a stream is surplus water.
The act sets out in detail the procedure to be followed to obtain
a permit from the Public Service Commission authorizing the
diversion of surplus water from a navigable stream. The Public
Service Commission may grant a permit only after a public hearing
on the application, notice of which must be given by publication and
failing in manner similar to the notice of hearing required upon an
application for a permit to construct a dam under section 31.06 of
the Statutes. The commission in issuing its permit is required to
fix the quantity of water to be diverted and the times when the
same may be diverted.
The state of Wisconsin adopted the English common law of
riparian rights.8 Under the common law, a riparian owner on either
a navigable or a nonnavigable stream is entitled to have the stream
which washes his land flow as it is wont to by nature without
material diminution or alteration.8 A riparian owner who is in-
jured by the diversion may obtain redress from the courts in the
form of damages or in certain cases by injunction upon a showing
that the diversion is an unreasonable use in excess of the rights
incident to riparian ownership. The act therefore provides that only
surplus water may .be diverted and that the diversion must cease
as soon as the water to be diverted is no longer surplus water,
In Flambeau River Lumber Co. v. Railroad Commission82 it was
held that as against the Chippewa and Flambeau Improvement Com-
pany a lumber company is entitled to the water at times and in
quantities necessary to make the river suitable for log driving; that
when water is not required for log driving as against the lumber
company, the reservoir company may impound the water in its
reservoir for power production. The court further held that the right
of a navigator to the flow of the stream is subject to reasonable

8 Wis. STATS. 1 30.01 (4) (c) (1945).
8 Mohr v. Gault, 10 Wis. 455, 461 (1860); McAvoy v. Gallagher, 107 Wi.
331, 83 N.W. 633 (1900); Kimberly & Clark Co. v. Hewitt, 75 Wis. 371, 44 N.W.
303 (1890).
82204 Wis. 524, 236 N.W. 671 (1931).
28


[Vol. 1946







LAW OF WATERS


control and regulation by the state in the public interest, saying
... There is no reason why the flow of the stream should not
be impounded for power purposes if it be done without damage
to lower riparians. It is apparent that the intending navigator
cannot arbitrarily require a log-driving stage of water in the
river when no useful purpose is to be served thereby and so
vindicate a barren, naked legal right if such exists. It is con-
sidered that it is not within the province of the court to exercise
its judgment as to the amount of water reasonably necessary for
purposes of navigation, and certainly it could not determine the
proper times for the release of impounded water. These are
clearly administrative matters.
Section 31.14(2) defines surplus water as "any water of a stream
which is not being beneficially used." The act provides that water
other than surplus water may be diverted with the consent of the
riparians affected thereby. This provision was inserted in the in-
terest of the cranberry growers who use large volumes of water for
such purposes as to ward off frost, to kill insects and weeds by flood-
ing, and to flood the field to float the berries and thereby lessen the
burden of harvesting the berries, etc. Even before the enactment of
section 31.14, cranberry growers constructed a canal 20 miles long
from the Wisconsin River at Wisconsin Rapids to the headwaters
of Cranberry Creek in the town of Cranmoor. After serving the
cranberry fields of the various growers, the water eventually dis-
charged into the Yellow River.
The Public Service Commission authorized Washburn County"
to construct a dam in the Totogatio River for the purpose of creat-
ing a head of 21 feet and a flowage of 1,700 acres. One of the
purposes of the project was to permit the diversion of surplus water
from the pond by gravity into the three Kimball lakes, the waters
of which are being diverted to extensive developed cranberry fields.
After serving the Kimball lakes, the water was proposed to be dis-
charged into Lake Nanoy which was then at an abnormally low stage.
The Public Service Commission granted permits for the diversion
of surplus water in the following cases, namely:
Washburn County was authorized to divert surplus water from
the Clam River Drainage to Shell Lake to restore Shell Lake to
normal."
Sawyer County was authorized to divert surplus water from the
north fork of the Chippewa River into Round Lake."
"204 Wis. 524, 544, 236 N.W. 671 (1931).
"Docket 2-WP-266.
SDocket 2-WP491, Nov. IS, 1940.
SDocket 2-WP-298, June 21, 1937.


July]







WISCONSIN LAW REVIEW


The Lutheran Retreat Association of Wautoma was authorized
to divert surplus water from Mount Morris Lake into Bullhead
Lake.87
The Drainage Commission of the Dandy Creek Drainage District
was authorized to divert surplus water from Dead Creek Ditch and
the Bass Lateral north of Dandy Creek Dam No. 12 into sections
33, 34, and 27, township 19 north, range 1 east, Monroe County, for
the purpose of creating and maintaining a reservoir to conserve and
protect the timber and wildlife resources within the area of the
Central Wisconsin Game Project."
Barron and Polk counties were authorized to divert surplus water
from the Apple River Drainage Ditch into Horseshoe and Mud
lakes in Barron and Polk counties."
Barron County was authorized to divert surplus water from Duck
Lake into Beaver Dam Lake.6"

IV

AUTHORIZATION OF PRIVATE PERSONS TO CONSTRUCT AND MAINTAIN
A BRIDGE ACROSS ANY NAVIGABLE WATER HAVING A
WIDTH OF THIRTY-FIVE FEET OR MORE

The Public Service Commission is authorized' to approve plans
for a private bridge across any navigable water having a width of
35 feet or more after a public hearing on not less than ten days'
written notice to the applicant and to the county and town clerks
of the county and town wherein all or a portion of the proposed
bridge is to be located. Proceedings to be followed in obtaining
approval of the plans and the conditions upon which the bridge
may be maintained are set forth in the statute with sufficient detail
and require no further comment.
Three applications for the approval of plans came before the Com-
mission. In two cases the plans were approved, namely: Alvin P.
Kletzsch was authorized to build a bridge across a narrow bay in
Lake Okauchee, town of Merton, Waukesha County;" the Con-
servation Commission was authorized to construct a bridge across
the "Narrows" in Plum Lake, Vilas County."
In one case," the commission denied the application of Martin J.

F Docket 2-WP-418, February 21, 1939.
8 Docket 2-WP-312, July 30, 1937.
SDocket 2-WP-392, October 21, 1938.
o Docket 2-WP-288, January 27, 1937.
"Wis. STATS. 1 31.23 (3) (1945).
SDocket 2-WP-SS1.
SDocket 2-WP-223.
"Docket 2-WP-547.


[Vot 1946







.LAWOr WAlItS


Gillen and others for authority to construct a private bridge over
the thoroughfare connecting Big Lake and West Bay Lake in Vilas
County, on the ground that it would impair the public rights of
navigation and fishing in the Cisco chain of lakes located in Wis-
consin and Michigan.

V

UNLAWFUL OBSTucrToNs IN NAVIGABLE WArTEs

Three sections of the Water Power Law are devoted to abate-
ment of obstructions in navigable waters.! An obstruction may
consist of lowering the water level by dredging or otherwise, as well
as by placing physical obstructions in the water. Thus the com-
mission held that dragging the river and removing grass and rooted
weeds in a long reach of the Yabara River above Stoughto o ob-
tain a larger flow for power production, whereby the water level of
Lake Kegonsa was lowered, constituted an unlawful obstruction.
Section 3123(I) provides a forfeiture or penalty of not more
than fifty dollars for each day that any person
(a) shall obstruct any navigable waters and thereby impair the
free navigation thereof;
(b) or shall place therein or in any tributary thereof any sub-
stance whatever that may flow into and obstruct any such
waters or impede their free navigation;
(c) or shall construct or maintain, or aid in the construction or
maintenance therein of any bridge, boom or dam not
authorized by law,...
But the floating or movement of logs or timber in navigable
waters, or the necessary use of temporary booms-in the
course of such floating or movement, or the cutting of
weeds in such waters with the consent of the Conservation
Commission, shall not incur such forfeiture.
Section 31.23(2) provides:
Every person or corporation violating any of the provisions
of this chapter, other than those mentioned in subsection (1)
of this section, or violating any order made by the commission
pursuant to any provision of this chapter, shall forfeit for each
such violation not more than one thousand dollars.
Section 31.23(3) provides that the construction and maintenance

SWn. SmL. i 31.23, 31.24, s#3 (194S).
-Docket 2-WP-Ts, 3 PiS.C.IL..
31


Jutrl]







WISCONSIN LAW REVIEW


of a bridge in navigable waters by a private citizen with the approval
of the Public Service Commission shall not incur such forfeiture.
It is to be noted that the term "navigable waters" includes both
rivers and lakes.
Section 31.25 declares the following obstructions to be public
nuisances:
every dam, bridge, or other obstruction constructed or main-
taned in or over any navigable waters of this state in violation
of the provisions of this chapter, and
every dam not furnished with a slide, chute, or other equip-
ment prescribed by the commission .
The section further provides that
the construction thereof may be enjoined and the main-
tenance thereof may be abated by action at the suit of the state
or any citizen thereof.
Section 3124(1) directs the commission to report to the governor
every forfeiture incurred under subsection (1) of section 31.23 and
every nuisance committed in violation of section 31.25. The governor
shall thereupon cause the attorney general to recover the forfeiture
or abate such nuisance.
It may appear from a casual reading of these sections that they
are easy to administer. Such, however, is not the case. For the
better analysis we have divided section 31.23(1) into three parts -
(a) (b) and(c), as appears above.
If the first part (a) is interpreted literally, namely, that every
person subjects himself to a penalty-who "shall obstruct any nav-
igable waters and thereby impair the free navigation thereof," the
conclusion cannot be avoided that every structure whatsoever in a
navigable water violates this section. Every wharf, pier, dock, diving
platform, boat slip, and boat at anchor impairs the free navigation
at the point where it is maintained.
It is obvious that only unlawful obstructions are meant to be in-
cluded in the section. The Water Power Law does not, however,
define which structures or obstructions are lawful and which are
unlawful. The rule by which this can be determined must be sought
for elsewhere, either in the statutes or in the decisions of the courts.
Again, under the third part (c), only bridges, booms, and dams
not authorized by law are proscribed. The Water Power Law does
not define lawful or unlawful bridges or booms. Here too the com-
mission must look elsewhere in order to determine whether a bridge,


[VoLt 19









a boom, or a dam constructed prior to or since the enactment of
Chapter 31 of the Statutes is authorized by law.
In order, then, to administer sections 31.23, 3124, and 3125, one
S must be familiar not only with the statutory provisions pertaining
to the subject matter, but also with the common law. Under the
common law one of the rights of a riparian proprietor on navigable
water is the right to build a pier from the shore out to water deep
enough to navigate his boats. However, if he goes out farther than
is reasonably necessary for navigation purposes, the pier becomes
an unlawful obstruction and a public nuisance subject to abatement.
Ariparian proprietor may draw a reasonable amount of water
from a navigable stream or lake for domestic purposes, for irriga-
tion, for cranberry culture, or for manufacturing purposes, but this
right must be exercised with due regard to similar rights of other
riparian owners. There are other riparian rights appurtenant to
riparian lands, such as constructing a fence along the bounday of
the Lt to the water's edge but not beyond the ordinary low-water
mark. .
The aforementioned rights cannot be measured by any fixed rule;
they ar relative rights; they vary not only with respect to the size
of the stream or lake but also with reference to the use which other
riparian owners are entitled to make of the same, and with due
regard to the use which the public may make of such waters. In fact,
those rights may be abridged or possibly extinguished by the state
without compensation to the owner in cases where the state under-
takes to improve the water for navigation..
The substance of the three sections has been on the statutes con-
tinuousy since territorial days. For the sake of clarity we venture
to rqeat, somewhat, statements made in another connection. Act
No. 9, Territorial Laws of 1840-41, already referred to, provides
that all rivers and streams of water in this territory, in all places-
Shere the same have been meandered and returned as navigable by the
suveyors employed by the United States Government, are declared
navigable to.such an extent that no dam, bridge, or other obstruction ..
may be made in or over the same without the permission of the"'
legislatu... .
This statute was reenacted without change by Chapter 34, Re-
vised Statutes of 1849.
I.t wa again reenacted by section 2, Chapter 72, Laws of 1853, ;
Snd the following proviso added:


33


ivi


July]


LAW OF WATERS







WISCONSIN LAW REVIEW


Provided, nothing herein contained shall be construed so as to
affect any act now in force granting to towns or county boards
of supervisors, the power to erect or authorize the construction
of bridges across such streams.
In 1858 this statute was renumbered to be section 2, Chapter 41,
Revised Statutes of 1858, substantially without change.
In 1878 it was renumbered to be section 1596, Statutes of 1878,
with only verbal changes. Thus far only navigable rivers and streams
were mentioned. The term "navigable waters," which would in-
clude lakes, was not employed.
In 1911 the statute was amended to read and provide as follows:
1596 (1) All rivers and streams which have been meandered
and returned as navigable by the surveyors employed by the
government of the United States, and all rivers and streams
(Italics mine) meandered or nonmeandered which are navigable
in fact for any purpose whatsoever are hereby declared navigable
to the extent that no dam, bridge, or other obstruction shall be
made in or over the same without the permission of the leg-
islature; .
(2) Any dam, bridge or other obstruction constructed or
maintained in or over any navigable waters (Italics mine) of
this state in violation of the provisions of this section is hereby
declared to be a public nuisance, and the construction of any
such dam, bridge or other obstruction may be enjoined or its
maintenance abated by action at the suit of the state or any
citizen thereof.
Subsection (3) provides a forfeiture for violations, and subsec-
tion (4) makes it the duty of the Public Service Commission to re-
port violations to the governor of the state.
Note that subsection (1) forbids the construction of a dam, bridge,
or other obstruction over meandered rivers and streams and over
rivers and streams navigable in fact. Navigable lakes are not men-
tioned. Subsection (2), however, provides that such structures,
that is, a dam, bridge, or other obstruction, in or over navigable
waters (a term which includes lakes), if maintained in violation of
said section, are public nuisances.
This apparent inconsistency between subsections (1) and (2) was
corrected by the revision of 1917" when the law was renumbered
and revised to read as in the statutes today.
SWhen a cause under this section comes before the commission,
either on complaint or on motion of the commission, it must first

WXs. LAws 1917, C. 474, 23.


[WL. 194







LAW OF WATERS


determine whether the person complained of is within his legal rights
in maintaining the obstruction. The most common unlawful obstruc-
tions are fills on the beds of navigable lakes and rivers. Such fills
are made either to extend or enlarge the area of land of the riparian
proprietor, or to dispose of industrial or other wastes. Such obstruc-
tions, although in violation of the common law, are since 1933 also
prohibited by section 30.02(1) (b), which reads:
It shall be unlawful to deposit any material or to place any
structures upon the bed of any navigable water where no shore
line has been established or beyond such shore line where the
same has been established.
Section 30.02(1) was enacted" at the suggestion of the Public
Service Commission. Its purpose was twofold, namely, to have a
statutory declaration which could be pointed out prohibiting such
intrusions on the bed of navigable water, and to permit the govern-
ing body of a municipality to establish a new shore line for the pur-
poses mentioned in the statute, subject to the approval of the Public
Service Commission.
The commission has held that, under the circumstances then exist-
ing in certain cases, farm bridges, barbed wire fences, duck ponds,
and enclosed watering places in navigable streams, more particularly
if the stream is floatable only, did not violate the provisions of sec-
tion 3123, and did not require abatement under section 3125.
It based its decision in those cases on the authority of A.C. Conn
Co. v. The Little Suamico Lumber Manufacturing Co." in which
the supreme court held that a distinction may be made between float-
able streams and streams of greater navigable capacity when con-
sidering the rights of riparians and of the public in the use of the
stream, and that a riparian on a small stream has a greater right to
place obstructions in the stream than has a riparian on a larger stream.
The court, among other things, held:
The rights of the riparian owner and of the public are both to
be enjoyed with due regard to the existence and preservation
of the other. The right of floatage of logs is not paramount in
the sense that the using of the water by the riparian owner for
-machinery is unlawful so long as he does not materially or un-
reasonably interfere with the public right (Morgan v. King, 18
Barb. 277; Gould on Waters, sec. 110; Harrington v. Edwards,
17 Wis. 586) ; but he may use the stream and its banks for every

Wa. Iaws 1933, C. 455.
"74 Wi. 692, 43 N.W. 660 (1889).


July]







WISCONSIN LAW REVIEW


purpose not inconsistent with the public use. Sec. 1598, R.S.,
seems to go on some such principle. It provides that every per-
son who shall obstruct any navigable stream in any manner so
as to impair the free navigation thereof, or place in such stream
or any tributary thereof any substance whatsoever so that the
same may float in or into and obstruct any such stream or im-
pede its free navigation, or construct or maintain, or aid in the
construction or maintenance of, any boom not authorized by
law in any such navigable stream, shall be liable to a penalty,
etc. This plainly implies that an obstruction in a navigable
stream which does not impair the free navigation thereof, though
not authorized by law, is not a nuisance and unlawful. Dams,
booms, mills, and bridges, even, may be constructed on some
navigable streams in such a manner as not to seriously affect
the navigation thereof or infringe upon the common right. To
say, therefore, that there can be no obstruction or impediment
whatsoever by the riparian owner in the use of the stream or its
banks, would be in many cases to deny all valuable enjoyment
of his property so situated. "There may be, and there must be,
allowed of that which is common to all a reasonable use. .
There may be a diminution in quantity, or a retardation or ac-
celeration of the natural current, indispensable for the general
and valuable use of the water, perfectly consistent with the exist-
ence of the common right. The diminution, retardation, or ac-
celeration not positively and sensibly injurious by diminishing
the value of the common right, is an implied element in the
right of using the stream at all." STORY, J. in Tyler v. Wil-
kinson, 4 Mason 397.
Suppose the riparian proprietor owns the land on both
sides of the stream, and there is a water power which can be
utilized and made valuable by means of a dam, can he not
construct such dam, and utilize his power, providing-he makes
a reasonable provision for the passage of logs through his dam ?
Can he not build a bridge over the stream for the convenient
passage from one part of his land to the other? The owner
must not so obstruct the stream as to materially impair its
usefulness for the. purpose of navigation; but, if it only can be
used for floating logs and timber, the riparian owner is bound
not to obstruct its reasonable use for that purpose.
.. But we do not concur altogether in the correctness of
the proposition that it has been the settled policy of the state
to make the waters capable of use for the transportation of logs
and timber free from all obstruction, whether by riparian
owners, mill owners, or others, so as to put the right of naviga-
tion by floating logs paramount and superior to other uses, and
to make riparian privileges entirely subordinate to the public
easement. But the public right and that of the riparian owner
may well co-exist and be enjoyed by a reasonable use of the
stream. The owner has no right to 'materially obstruct the nav-
igation of the stream' (ch. 220, Laws of 1881), and to do so is
a misdemeanor. But if the owner uses the stream in the qual-


[Vol. 194








LAW OF WATERS


ified manner above indicated, the public cannot complain. These
general remarks have been made in view of the charge of the
circuit court, which will soon be considered, and which is crit-
icized as being erroneous in many particulars.
However, in Kresge v. Railroad Commission,1" the court made
the sweeping statement that after the enactment of sections 30.01(2)
and 31.23(1) in 1911, no structure of any kind may be erected in
a navigable stream. The court on rehearing uses the following
language:
.As it now stands, the decision already rendered is cor-
rectly interpreted in the brief of respondent's counsel. We shall
not here reconsider the authorities, but merely say that since the
enactment of secs. 30.01(2) and 31.23(1), no riparian has
without the consent of the state a right to invade the bed of a
navigable stream with a structure of any kind even though it
be one in aid of navigation; that under the existing law state
authorities cannot give a consent to an invasion of the bed of a
navigable stream, which consent would conclude the state if in
the future it shall be necessary for the state to remove the struc-
ture in aid of navigation; that as to such structures as are now
in the bed of Rock River at the point in question, which do not
in fact obstruct navigation, we see no occasion to add to what
has been declared in former cases, as that is not within the scope
of a judgment for declaratory relief.
The question arises whether the rule declared in the Conn case
has been overruled.
The issue in the Kresge case was whether the owner of the fee
after the change in the law by legislative enactment, which forbade
the erection and maintenance of a building on the bed of a nav-
igable stream, could lawfully erect a building on the bed to replace
an outworn building which existed lawfully upon the bed at the
time the law was changed.
When the court in its decision made the statement "that since the
enactment of sections 30.01(2) and 31.23(1) no riparian has with-
out the consent of the state a right to invade the bed of a navigable
stream with a structure of any kind (Italics mine) even though it
be one in aid of navigation" it was expressing an opinion upon a
point or principle which was not involved in the case and is obiter
dictum.
The following statutes are involved in the Conn case, namely, sec-
tion 1596, Revised Statutes of 1878, now section 30.01(2); section

204 Wis. 479, 236 N.W. 667 (1931).


1


July]







382 WISCONSIN IAW REVIEW [Vol. 1946

1598, Revised Statutes of 1878, now section 3123(1); and Chapter
220, Laws of 1881.
There have been no material changes in the wording of section
1596 and section 1598, Revised Statutes of 1878, except as here-
tofore noted that in 191110 section 1596 was amended by adding
the phrase "and all rivers and streams meandered or nonmeandered
which are navigable in fact for any purpose whatsoever" and there-
by bringing additional streams into the navigable class.1
It will be noticed that section 1596, Revised Statutes of 1878, pro-
vided that no dam, bridge, or other obstruction may be made in or
over a stream of water "in all places where the same has been
meandered and returned as navigable by the surveyors employed by
the United States Government." (Italics mine)
The Little Suamico River was not meandered by the surveyors
of the United States. The court might have dismissed the complaint
on the ground that section 1596, Revised Statutes of 1878, prohib-
ited dams, bridges, and other obstructions in streams that have been
meandered, and that the Little Suamico River does not fall within
that class. The court held, however, that streams navigable in fact
are also navigable in law and public, and that section 1596, Revised
Statutes of 1878, applies not only to meandered streams but also to
streams navigable in fact. In other words, the court in its decision
in A.C. Conn Co. v. The Little Suamico Lbr. Mfg. Co.,x1 so to
speak, anticipated the 1911 amendment by holding that streams nav-
igable in fact are also navigable in law.and decided the case on that
theory.
The only other changes in the statutes with reference to obstruc-
tions in navigable streams since the decision in the Conn case are
the enactment of section 3125 and section 3124.10' Section 31.25
declares any dam, bridge, or other obstruction made or maintained
in violation of Chapter 31 to be a public nuisance and abatable at
the suit of the state or any citizen thereof. Section 3124 makes it
the duty of the commission to report to the governor forfeitures
incurred under section 3123 and every nuisance committed in viola-
tion of section 31.25.
It is our opinion that the foregoing changes in the statutes do not


1oWIs. LAWS 1911, C. 652.
"'Wis. STATS. 1 30.01 (2), 31.23 (1) (1945).
"0 74 Wis. 652, 43 N.W. 660 (1889).
04W's. LAws 1911, C. 652.







LAW OF WATERS


overrule the decision of the court announced in the Conn case."
The problem of whether an old outworn building on the bed of
a navigable stream may be replaced with a new building by the
owner of the fee of the bed of the stream is considered in the so-
called Janesville cases and the Kresge case."
In Stat v. Suterland,*" the facts were briefly as follows: Suth-
erland, in 1890, purchased land which constituted a part of the bed
of the Rock River at Janesville and erected a store building thereon
during the early 90's, that is, prior to the enactment of Chapter 652,
' Laws of 1911, in reliance upon the decisions in State v. Carpenter "
and Jaeseih v. Carpenter," in which it was held that buildings
on the bed of the Rock River at Janesville, substantially as the
-Sutherland Building, could not under the circumstances found to
exist be abated at the suit of the state or a private party.
The court held that buildings erected prior to the enactment of
subsections (1), (2), (3), and (4) of section (1) of Chapter 652,
Laws of 1911, could not be abated as a public nuisance; that the
enactment of said subsections changed the policy of the state with
respect to such buildings and made it unlawful thereafter to erect
and maintain the same in or over a navigable stream. The foregoing
subsections were amended and renmnbered."
The facts in SS. Kresge Co. v. Railroad Commission* m were as
follows: The Kresge Company held a lease on the bed of the stream
which expires in 1979. The building on the leased ground was
erected in 1892, and rested on wooden piles driven into the bed of
the river. The allegation of the complaint was that the building was
in such poor physical condition that it could not be repaired; that

.1 See also Charney v. The Shawano Water Power & River Improvement Co,
109 Wis. 563, S69, 85 N.W. 507 (1901):
"While it has been the policy of this state to hold al streams capable of
floating logs and timber to be navigable, yet in streams like this, that are not
meandered, the landowner and the public have certain -reiprocal rights, which
may be enjoyed without the destruction of the other. This is fully set forth in
the opinion of this court in the case of A. C. Conn Co. v. The Little Suamico
L. Mfg. Co, 74 Wis. 652, 43 N.W. 660 (1889) which holds distinctly that dam
built and maintain by a riparian owner, without legislative permission, in a
stream navigable only for the floating of logs and timber, is not unlawful if it
does not materially afect or abridge the beneficial se of the stream."
10 State v. Carpenter, 68 Wis. 465, 31 N.W. 130 (1887); Janesville v. Car-
penter, 77 Wis. 288, 16 N.W. 128 (1890); State v. Sutherland, 166 Wis. 511, 166
N.W. 14 (1918); S. S. Kresge Co. v. Railroad Comm., 204 Wi. 479, 236 N.W.
667 (1931).
m10 166 Wi. 11, 166 N.W. 14 (1918).
68 Wis. 165, 31 N.W. 730 (1887).
1077 Wis. 88, 46 N.W. t18 (1890).
ImWz. SrAts. S I 301 (2), 31.25, 31.23, 31.24 (1945).
m.0 Wis. 479, 23 N.W. 667 (1931).
39


July]







384 WISCONSIN LAW REVIEW IVoL 1946

it was necessary to tear it down, pull out the piers and abutments,
and erect a new one on the site. The court reviewed the Janesville
cases and held that since the enactment of sections 30.01(2) and
31.23(1) in 1911, no riparian owner has the right without the con-
sent of the state to invade the bed of a navigable stream with a
structure of any kind, even though it be in aid of navigation.


VI

MAKING OF CONTRACTS ON BEHALF OF THE STATE OF WISCONSIN
FOR THE REMOVAL OF MATERIALS FROM THE BEDS OF NAVIGABLE
LAKES, SUCH As SAND, GRAVEL, MARL, ETC.

Many contracts have been issued to dredge marl from the beds
of navigable lakes,m1 and contracts have also been issued authorizing
the taking of sand and gravel from inland lakes and from Lakes
Michigan and Superior.
In an investigation by the commission concerning the taking of
sand and gravel from the beach of Lake Michigan without a con-
tract,m1 the commission held that the fee title of the riparian pro-
prietor on Lake Michigan extends only to the ordinary high-water
mark; that from the ordinary high-water mark to the water's edge
the riparian proprietor holds an easement which gives him the ex-
clusive access to the water; that the bed of Lake Michigan extends
to the ordinary high-water mark, and that hence no sand and gravel
or other materials may legally be taken from the area commonly
called the beach without permission from the state.
In the administration of the statute, the commission found it
necessary to make a thorough investigation pertaining to certain
controversial problems involved in the act, the solution of which
was necessary before a contract could properly be granted. The
problems arose in an application to take marl from Lime Lake in
Portage County."
On the hearing of the application, three respondents entered their
appearances and claimed title to the bed of the lake. They produced
abstracts of title showing a fee title in them to the bed of Lime Lake
based upon United States patents. They also claimed that Lime


MWis. STATS. 31.02 (5) (1945).
n' Docket 2-WP-345.
"4 Application of Bert C. Somers, et al, for a contract to take marl from the
bed of Lime Lake, WP-190.28, 28 WRCR 198-247.
40







-LAW OF WATERS


Lake is nonnavigable and further that the state has no power to sell
any materials from the bed of the lake. The lake covers some fifty-
eight acres of water surface.
S It became necessary for the commission: (1) to make a determina-
tion as to whether the lake is navigable and public, or nonnavigable
and private; (2) to determine whether the United States patents
are valid, if the lake should be found to be navigable; and (3) to
determine whether the state of Wisconsin has the power to sell
material located in the bed of the lake since the state merely holds
S the water in trust for public purposes.
The commission held the lake to be navigable and therefore
public water. It held the United States patents void insofar as they
attempted to convey the bed of a navigable lake, and it further
held that the state had the power to sell the marl which forms in the
lake. A contract to dredge marl was accordingly granted. The de-
cision of the commission on the foregoing proposition was sustained
by the Circuit Court for Dane County and the Supreme Court of
Wisconsin.
The question of whether the state may sell and dispose of any
materials in the bed of a navigable lake was new. The court had
held that the state had no power to sell the ice which forms on a
navigable lake.11 The authorities bearing on the problem of whether
the state could sell the marl, sand, and gravel, and the other problems
involved, were carefully collected and considered in the decision of
the commission, which is valuable to anyone interested in the prob-
lems involved.

VII

THE MILLDAM Act

The right to build a dam under the Milldam Act follows from
the statute itself. No permit is required from the Public Service
Commission, though the statute places certain limitations on the
grant of the right to construct the dam. Before the Milldam Act was
consolidated with the Water Power Law in 1917 there was no pro-
vision in the state for the approval of the plans for the dam nor
for supervising its construction. It was provided that the height to
which the water might be raised and the length of time for which

"Angelo, at d. v. Raroad Commission, 194 Wi. 543, 217 N.W 570 (1927).
"mRoesmnlfr v. State, 114 Wis. 169, 89 N.W. 839 (1902).


July]







386 WISCONSIN LAW REVIEW [VoL 1946

it might be kept up each year "shall be liable to be restricted and
regulated by the verdict of a jury, as provided in the chapter."''
After the consolidation with the Water Power Law, certain pro-
visions of the latter law, so far as applicable, were made to apply to
the Milldam Act." Thus the Public Service Commission has reg-
ulatory supervision over the Milldam Act to regulate and control
the level and flow of water, and jurisdiction over the dam to promote
safety and protect life, health, and property The commission may
require the filing of plans for the dam and approve the same if
satisfactory,' and it is required to report to the governor of the
state any violations of law committed under the Milldam Act.m
Since the amendment of 1911'2 which limited the construction of
a milldam in streams which are not navigable for any purpose what-
soever, the Milldam Act, so far as the building of dams under the
act, in the future, is concerned, is of little importance.
However, many problems arise with respect to or concerning
the numerous mill ponds constructed under the act in the past-
problems relating to the safety of the dam and dikes, problems of
whether the owner of the dam has gradually raised the water level
in the pond above the authorized level, or has permitted the pond to
lower below the minimum established for the pond. Controversies
also arise over the release of water from the pond during flood
periods. Riparian proprietors above the dam damaged by high water
may claim that the owner of the dam is not releasing the water from
the pond fast enough, while at the same time riparians below the
dam may claim that he is damaging their property by releasing a
greater volume of water than the natural flow, that is, that he is
adding storage water to the natural flow.
The history of the Milldam Act is essential to an understanding of
the decisions of the courts involving mills and milldams while the
Milldam Act was repealed.
The Milldam Act was first adopted in 1840m and was repealed and
reenacted in 1841." It was again repealed in 1849.' It was reen-


U WIs. STATS. 1 33.77 (1915).
m'Wrs. STATS. I 31.02, 31.03, 31.12, 31.18, 31.19, 31.20, 31.22, 3125, 31.26,
31.28 (1945).
'"WIs. STATS. I 31.02 (1945).
12 Ws;. STATS. I 31.12 (1945).
11 Ws. STATS. I 31.24, 31.25 (1945).
SSee footnote 62.
TERRTORIAx LAWS or 1840, No. 48, p. 65.
mTEnrro Ax., Laws oP 1841, No. 9, p. 34.
RLV. STATS. or 1849, C. 157, $ 1.







July]


LAW OF WATERS


acted effective January 1, 1859," and amended in 1911, when the
construction of dams under the act was limited to streams not navi-
gable for any purpose whatsoever. The Milldam Act was consolidated
X with the Water Power Law and placed under the jurisdiction of the
Public Service Commissionm and now appears in the statutes as sec-
tions 3131 to 31.34.
The Milldam Act provides that .while the dam is used to develop a
head of water to operate the mill, an owner of land flowed may not
object to such flooding. The only right which he has is to recover his
S ilamages if he brings an action within the period of limitations pro-
vided for in the act. On the abandonment of the mill, the land flowed
is freed from the flowage rights.m
The original Milldam Act contained no limitations in time for the
commencement of the action for damages, except that no damages
could be recovered unless the injury was sustained within three years
next preceding the commencement of the action. In 1862, it was pro-
vided that no action for the recovery of damages for flowing lands
hall be maintained in any court in the state when it shall appear that
the land has been flowed, by reason of the construction or erection of
any milldam, for more than ten years next preceding the commence-
ment of the action."
It was held in Ruehi v. Voight, et al.,m that this provision applied
to dams built under the Milldam Act of 1840, or under a special
charter.
The constitutionality of the Milldam Act is sustained on the theory
that grist, saw, or other mills are public businesses, and that the state
may exercise its sovereign power of eminent domain through the
agency of the mill owner in acquiring the flowage rights for use of
the public mill It follows that when the dam is no longer used for a
public purpose the right to fow, acquired under the Milldam Act,
ends. While the dam is being used for a public purpose, an owner of
land flowed is never in a position to prevent the flooding because the
owner of the dam is protected by the Milldam Act. There can be no
prescriptive right against one who is not in a position to resist.
Justice Timlin in Minehan v. Murphy, et al.,T held that before land
may be acquired by adverse possession the landowner must have some


1 Rzv. STATr. a 1858, C. 56.
m Ws. LAws 1917, C. 474.
'"Pratt v. Brown, 3 Wis. 532 (1851); City of Albert Lea v. Davies, at d,
80 Minn. 101, 82 N.W. 1104 (1900).
Was. Laws 1862, C. 184, now Wis. SuT. I 330.18 (1945).
S28 Ws. 153 (1871).
m 149 Wi. 14, 134 N.W. 1130 (1912).







WISCONSIN LAW REVIEW


time within which to bring an action, and he must have neglected dur-
ing that time to do so."'
In Pratt v. Brown," it was held that the right to flow ceased with
the repeal of the Milldam Act in 1849, and that the parties affected by
the act were restored to their common law rights and remedies. The
law was reenacted in 1857.
We have not investigated the problem suggested but not decided in
Pratt v. Brownm' of whether flowage easements acquired under the
Milldam Act terminate with the abandonment of the mill in cases
where the owner of the land flowed has had his damages assessed
under the act and accepted compensation. The problem arises in cases
where, after the abandonment of the mill, the mill pond is used for a
private purpose, such as maintaining the same for the development
of water lots along the shore, muskrat farming, cranberry culture,
for the harvesting of ice, and the like.
The right to flow by virtue of the Milldam Act is not properly an
easement as it is usually referred to. The right is temporary and is
merely a license."' In the Milldam Act the right to flow is denomi-
nated a license,1" and is not only temporary, terminating with the
abandonment of the mill, but it is also subject to the control of the
Public Service Commission under its power to regulate and control
the level and flow of water."7
There is a marked distinction in the nature of the flowage rights
which the owner of a dam acquires by virtue of the Milldam Act and
the flowage rights, which he acquires by adverse possession in any
manner other 'than under the Milldam Act.. Adverse flowing of land
by a milldam for the prescriptive period of ten years, as distinguished
from flowing under the Milldam Act, ripens into title." This result
follows with respect to private lands flowed (but not as against the
state), even if the dam has not been authorized."'
The court in Johnson v. Boorman held that when the prescriptive
right has once been acquired it will not be lost by nonuser alone for
a less period than ten years, saying :

m"Citing Tarry v. Anderson, 95 U. S. 628 (1877); McGahey v. Virginia, 135
U. S. 662, 705 (1889).
3 Wis. 532 (1851).
"3 Wis. 532 (1851).
a'Pumpelly v. Green Bay & Mississippi Canal Co., 80 U. S. (13 Wal.) 166
(1871).
"Wis. STATS. I 31.33 (2) (1945).
7 Wis. STATS. 31.02 (1945).
"'Wis. STATS. 330.18 (1945).
Charnley v. Shawano W.P. & R.I. Co., 109 Wis. 563, 85 N.W. 507 (1901).
10 63 Wis. 268, 273, 22 N.W. 514 (1885).
1 See also: Brown v. Parker, 28 Wis. 21 (1871); Pierce v. Seymour, 52 Wis.
272, 9 N.W. 71 (1881).
44


[Vol. 1946







LAW OF WATERS


Especially must that result follow in this state, where it is held
that the statute of limitations not only bars the remedy, but de-
stroys the right itself, after the time prescribed by it has once
elapsed.
It was held in Smith v. Youmans, et al., I under the facts in that
case, that where the owner of a dam acquired flowage rights by ad-
S verse possession (the Milldam Act was not involved), the owners of
the land flowed had acquired reciprocal rights to have the water level
maintained as it had been maintained for forty years.
* In City of Albert Lea v. Daviesm the flowage rights were acquired
under the Milldam Act, and the court held that on the abandonment
of the mill the right to flow terminated. The court held that the owner
t ."had simply granted the right of flowage for mill purposes under the
Milldam Act to Ruble (owner of the dam) and if others built and
improved, relying upon the permanency of the Ruble easement, they
S cannot complain of the results when that easement came to an end."
The court held that the owners of the land flowed had not acquired
reciprocal easements.
In a previous Minnesota case, Kray v. Mugg ,'" in which the
Milldam Act was not involved, the court held that the owners of a
dam might not destroy it because owners of land flowed had acquired
reciprocal easements.

VIII

DAms IN NONNAVIcGABL STREAus, OTHER THAN DAMS
CONSTRUCT UNDER THE MILLDAM ACT

The problem of whether the Public Service Commission has juris-
a diction over dams in nonnavigable streams" may be considered con-
troversial since the problem has not been directly decided by the su-
preme court. The following expresses the opinion of the writer.
The owner of land through which a nonnavigable stream flows may,
under the common law, construct a dam in the stream without further
permission of the legislature?" There is no prohibition in the statutes
against the construction of a dam in a nonnavigable stream. This fact
does not deprive the state from imposing certain requirements with


m 96 Wism 103, 70 N.W. 111S (189).
Uo80 W3im 101, 82 N.W. 1104 (1900).
t77 Miim. 228, 79 N.W. 964 (1889).
SWE. STrs. C. 31 (1945).
SPratt v. Brown, 3 Wi. 532, 544 (11); Olon v. Mrrill 42 Wi. 204,
w wm.nr


July]







390 WISCONSIN LAW REVIEW [Vol. 1946

respect to the safety of the structure or limiting the head of water
which may be maintained or from imposing other conditions.
The common law right which the owner has to build a dam in a
nonnavigable stream must, not be confused with the right which he
has under the statutory provisions of the Milldam Act. If the dam is
constructed under the Milldam Act, the owner has certain rights
which he does not possess under the common law, such as flooding
the land of others without their consent.
The Milldam Act is not the source of power which gives the owner
of land through which a nonnavigable stream flows the right to erect
a dam in the stream (using the term "nonnavigable" in the sense that
the stream is not a public highway as distinguished from the term
"navigable stream" to which the public right of navigation attaches,
and not using the term in the technical sense with which the term is
invested by the decisions of the supreme court in the Milldam cases
prior to the 1911 amendments). The right to build the dam is a
common law right. The only right which accrues to the owner of a
milldam in a nonnavigable stream, using the term in the above sense,
which the owner of a dam in the same stream not used for milling
purposes does not possess, is the right to flow the lands of others
without being subject to having the dam abated in a court of equity.
The question was squarely raised and decided in Olson v. Merrilf"
that the right to erect and maintain the dam in the stream "rests solely
on the ground whether the stream is navigable in fact or not." The
problem is somewhat complicated by the fact that the supreme court
gave the term "nonnavigable" as used in the Milldam Act a technical
meaning and included certain floatable streams within the meaning of
the term. Floatable streams are public highways by water. The tech-
nical meaning in which the supreme court used the term in the mill-
dam cases was abolished by the 1911 amendments.
Property owners upon a navigable lake have the right to have the
natural level maintained and also to have the assistance of a court of
equity, if necessary, to accomplish that end.48 Thus the owners of a
dam in a nonnavigable stream may not back water into a navigable
lake so as to change the normal level of a navigable lake.
It is our opinion that regardless of whether the dam is in navigable
or nonnavigable water, if it affects navigable water, then Chapter 31
of the Statutes, applies to the dam.
Section 31.02, subsection (1), states in part: "The commission in
the interest of public rights in navigable waters ... is empowered to

1"942 Wis. 204 (1877).
Runyard v. Getting Bros. Ice Co., 142 Wis. 471, 125 N.W. 931 (1910).
46


---







LAW OF WATERS


regulate and control the level and flow of water in all navigable
waters ...." Further reference to public rights in navigable waters1
emphasizes that one of the principal purposes of Chapter 31 is to
safeguard the public's rights in the navigable, waters of the state. As
a means of accomplishing this purpose, the legislature has delegated
to the Public Service Commission "authority and power to investigate
and determine all reasonable methods of construction, operation,
maintenance, and equipment of any dam so as to conserve and pro-
tect all public rights in navigable waters" without distinguishing be-
tween dams in navigable waters and dams in nonnavigable waters.
Since section 31.02(1) gives the commission authority to regulate
and control the level of all navigable waters, it follows that the com-
Smission must have jurisdiction over all dams which affect the levels
of these navigable waters even though such dams may- not them-
selves be located in navigable waters.
We wish to point out, however, that we have not quoted sub-
sections (1) and (2) of section 31.02 of the Statutes, in full. We
do not believe, however, that the latter part of these subsections takes
away or modifies power granted to the commission in subsection (1)
to regulate and control the level and flow of water in all navigable
waters, or in subsection (2) which vests the commission with author-
ity to determine all reasonable methods of construction of any dam
so as to conserve and protect life, health, or property.
Section 31.18(3) of the Statutes, also has a direct bearing on the
proposition under discussion. It provides that no substantial altera-
tion or addition shall be made to "any dam heretofore or hereafter
constructed" without obtaining an order from the commission upon
a finding that the proposed alterations or additions wil not impair
S the sufficiency of such dam or any existing public rights in such
waters.
In Chippewa & Flambeau Improvement Co. v. Railroad Com-
mission" the question raised was whether a flooding dam authorized
by legislative grant for log-driving purposes and disused for a few
years for every purpose and revived by the Chippewa & Flambeau
Improvement Company Act of 1911 (Reservoir Act) came auto-
matically under the Water Power Law.
... In the present case the act of 1915 seems unquestionably
intended to apply to all dams in the state. A general policy
applicable to all the navigable waters of the state was there an-
nounced, and we can entertain no doubt of the intention to make

14 Wa. SmrA. I 31.06 (3), 3108, 31.13 (2), 31.14 (1), 31.18, 31.19 (1945).
1 164 Wi. 105, 159 N.W. 739 (1916).


July]







WISCONSIN LAW REVIEW


it applicable to the reservoir dams operated by the plaintiff.
This act gives ample and broad powers to the Commission to
regulate and control the navigable waters of the state and to
fix the maximum and minimum levels that may be maintained
"by any dam heretofore or hereafter constructed" "in the in-
terest of the public rights" or "to promote safety and protect
life, health and property."
Section 31.33 of the Statutes provides in part as follows:
All mills and milldams lawfully erected or constructed on any
stream not navigable at the time, under and pursuant to the pro-
visions of Chapter 48 of the Territorial Laws of 1840 or
under and pursuant to any special, private, or local act, or under
any other act whatsoever, (Italics mine) which are not now
abandoned but are still in existence and use, and all mills and
milldams heretofore or hereafter erected or constructed on
streams not navigable in fact for any purpose whatsoever, shall
be subject to and regulated and controlled by the provisions, so
far as applicable, of sections 31.02, 31.03, 31.12, 31.18, 31.19,
31.20, 31.22, 31.25, 31.26, and 31.28 of the statutes, .
Thus in section 31.19, it is provided:
.. upon complaint in writing .. that any dam maintained
or operated in or across any waters whether navigable or non-
navigable, (Italics mine) or any reservoir is in an unsafe con-
dition, ... the Commission shall investigate... such complaint
.... and, in any case, if it shall find that any dam or reservoir is
not sufficiently strong, or is unsafe, and dangerous to life or
property, it shall determine what alterations, additions or re-
pairs are necessary to be made and shall order the owner, or
person having control of such dam or reservoir to cause such
alterations or repairs to be made within a time to be limited by
the order; and the Commission may cause to be drawn off, in
whole or in part, the water in said reservoir or impounded by
said dam, when it shall determine that such action is necessary
to prevent impending danger to persons or property.
If a stream is navigable for any purpose whatsoever, neither a
milldam nor any other dam may be constructed in it without first
securing a permit under section 31.06 of the Statutes. If it is not
navigable for any purpose whatsoever, then and only then may either
of the two classes of dams be erected in the stream without a permit
under Chapter 31 of the Statutes. The larger the drainage area
above the dam, the greater is the need for supervision. A milldam
may be upstream from a dam not used for milling purposes. The
need for supervision may be far less than over the dam downstream,
yet, unless the Water Power Law is applicable to both classes of
dams, the one least liable to cause damage would be subject to super-
vision and the other not. No reason can be perceived why milldams
48


[VoL 19







LAW OF WATERS


in a stream not navigable for any purpose whatsoever should come
under the act and all other dams in the same stream should not.
This, of course, in itself, does not prove that the Water Power Law
applies to all dams in nonnavigable streams, but the facts stated
give meaning and explanation to other provisions of the act, all of
which lead to the conclusion that the intention of the legislature
was to place all dams in nonnavigable streams under the jurisdiction
of the commission."


u5 The Public Service Commission has prepared and will furnish on request
the following blank forms:
Application for permit to construct a dam across a navigable stream.
Application to raise and enlarge an existing dam
Application for authority to operate and maintain a dam constructed without
,legal authority prior to 1915.
Application by public utility for certificate of public convenience and neces-
sity to acquire an existing dam.
Application for approval of plans for a dam across a nonnavigable stream.
Questionnaire to determine whether stream is navigable or non-navigable.
Application for permit to divert surplus water.
Applications for contracts to take marl, sand, gravel, and other materials from
the bed of a navigable lake.
Brief to instruct applicant for contract regarding rights which the public has
S in public waters and rights which riparian owners have in such waters.
Application for approval of plans for a private bridge across navigable water.
Blank form of municipal ordinance to establish a new shore or dock line under
section 3002 (1).


July]











Comments
THE LAW OF UNDERGROUND WATER;
A HALF-CENTURY OF HUBER V. MERKEL*
Some time ago there was a song annoying us entitled "You Never
Miss the Water 'til the Well Runs Dry." While the song was meant
to be used as some sort of modern parable, the words themselves
suggest rather euphemistically one of the major problems facing our
state and the nation. The problem is that of water supply and the
corresponding legal rights to water. The increased demand for water,
necessary to sustain our growing population, is heightened in nearly
all parts of the country by increased use for industrial and agricul-
tural development. Even in areas such as Wisconsin, where the supply
is plentiful for all reasonable needs, increased use will lower the water
table and drain subterranean pools at a rate much faster than it can
be replenished. Our state government, along with many others, has
recognized this problem and is cooperating with the US Geological
Survey and the States Resources Planning Board in an attempt to
suggest legislative solutions to the problem. Legislation has been
passed to meet this problem in almost all the states including Wis-
consin.'
While the law regarding surface water is well settled along the
lines of reasonable use and rights of riparian owners, the law of
underground waters is not as well defined. The law of underground
waters started its development about 18402 and has not at this point
given any indication of being settled. If the goal of the law is to
determine and protect the rights of parties to the use of property,
the field of underground waters has been discriminated against by
our law-makers. In 100 years of development, a great deal of un-
certainty still prevails, in addition to the waste of our water resources.
Early civilizations had no knowledge of underground water move-
ments and hence it is not surprising that many misconceptions and
superstitions arose. Since the turn of the century, science has been
increasingly occupied with studies concerning this valuable resource,
and the knowledge gained has shaken the basis of some of our law.
The two most significant facts uncovered are 1) we now know where
ground water is located, how it got there and that it is slowly moving
through the ground and that 2) nature has provided us with what is
117 Wis. 355, 94 N.W. 354 (1903).
SSee discussion of statutory materials infra.
SActon v. Blundell, 12 M.&W. 324, 152 Reprint 1223 (1843).


I








WISCONSIN LAW REVIEW


called the "water cycle," which shows the interdependence between
the movement of surface waters, movement of ground waters and
the rain, precipitation and evaporation which is constantly taking
place. The simple fact that we now know that all ground water is
constantly moving and is not stationary under our land (like gravel
stones) has a profound effect upon our law, as will be seen from the
S discussion following.
Any discussion of statutory policies affecting underground water
necessarily requires an introductory study of the common law view
of the rights in water because any statute dealing with it will be
constitutional or unconstitutional depending upon the view we take
of land owners' rights in underground water.' To avoid confusion, it
.would be better to divide the rules with regard to underground wa-
ters into statutory and non-statutory rules. The non-statutory rules
have been labeled by writers and judges as falling into one of three
groups: (a) English Rule or "common law rule," (b) American Rule
or "reasonable use rule," (c) California Rule or the doctrine of "cor-
relative rights."
NON-TrATuTORY RUmEs
The English Rule
At common law, percolating water existing in the earth is regarded
as a part of the soil in which the person owning the land has a prop-
erty right.4
The first case squarely facing the problem of landowners' rights in
underground waters was Acton v. Blundell, which arose in England in
the yAar 1843.' Here was a case of a manufacturer using a well in
his business. A coal mine was opened about 34 mile away, and the
owner began pumping the water out of the mine shaft. This process
drew the percolating water from under plaintiff's well, and he asked
damages in an action on the case. The defendant was engaged in the
lawful exercise of his property rights (mining) and the court held
that no action lay. The reason they gave, however, was based on the
distinction the court saw between the law of subterranean waters
and the law of surface waters. They said the law of surface waters
did not apply because:
... no man can tell what changes these underground sources have
undergone in the progress of time ... [therefore] ... there can
a This was clearly pointed out in Hathorn v. Natural Carbonic Gas Co., 194
N.Y. 326, 87 N.E. 504 (1909).
SSee 56 AM. Jua., Waters 113 (1947); 67 C. J., Waters 250 (1934).
*12 M.&W. 824, 152 Reprint 1228 (1848).

51


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[VoL 1953









be no ground for implying any mutual consent or agreement,
for ages past ... which is one of the foundations on which the
law as to running streams is supposed to be built ....'
The principle has been said to rest on the maxim cujus est solum,
ejus est solum, ejus est usque ad coelum et ad inferos.7
The early American decisions following the Acton case followed
the "English Rule." It is interesting to note, that the facts of these
American decisions do not vary, in any material respect, from those
of the Acton case. In Roath v. DriscoUl the complainant was using
a reservoir he had excavated some time prior to defendant's con-
struction of a reservoir. Complainant was using the water himself
and selling some to his neighbors and sought to enjoin defendant's
use. The court denied the injunction on the ground that percolating
water has no distinctive character of ownership from the earth itself.
It stated:
The laws of its existence and progress ... cannot be known or
regulated. It rises to great heights, and moves collaterally, by
influences beyond our apprehension. These influences are so
secret, changeable and uncontrollable, we cannot subject them
to the regulations of law, nor build upon them a system or rules,
as has been done with streams upon the surface.'
In a Pennsylvania case10 the defendant owned an iron mine and be-
gan pumping water with an engine and this operation dried up plain-
tiff's spring for which he asked damages. No action was allowed
since the defendant was exercising his legal rights and the court added
that:
A surface stream cannot be diverted without knowledge that the
diversion will affect a lower proprietor. Not so with an unknown
subterraneous percolation or stream. One can hardly have rights
upon another's land which are imperceptible, of which neither
himself or that other can have any knowledge."
The most frank language by any court as to their view of the prop-
erty rights in underground water comes from the Massachusetts
court.12 In this case the defendant had constructed a reservoir on his
land for use in his business. This resulted in rendering the adjoining
12 M.&W. 324, 350, 152 Reprint 1223 (1843).
7 To whomsoever the soil belongs, he owns also the sky and to the depths.
20 Conn. 532 (1850).
Id. at 540.
'" Haldeman v. Bruckhart, 45 Pa. 514 (1863).
u Id. at 519.
n Davis v. Spaulding, 157 Mass. 431,32 NE. 650 (1892).

52


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494 WISCONSIN LAW REVIEW IVol 1953

well of plaintiff useless. Plaintiff's prayer for damages was denied
and the court stated:
Water percolating underground, and not running in a definite
stream or watercourse is m law a part of the land itself, in the
same sense that earth, gravel, stones, or minerals of any kind are.
constituted parts of the land, and is the absolute property of the
owner of the land, in the same way, and to the same extent, that
the other constituent parts of his land are his absolute property;
so that he has the same right to ... use it on the land or elsewhere,
that he has to ... use or sell sand, soil, clay, ores or any other
constituent part of the land.u [Emphasis supplied
As mentioned above, the facts of these cases do not- vary a great
deal in the sense that the defendant in each case was engaged in a
lawful enterprise which resulted in the unfortunate damage to plain-
tiff. However, the unfortunateness of the damage in no way com-
pares with the unfortunate language used by the court. When a
person uses high powered pumping equipment which draws water
from under an adjoining freeholder's property it cannot be doubted
that a trespass is committed. Whether the damage is damnum absque
injuria is a question of law, hut the language in these cases has led
the Wisconsin court to the extreme position taken in Huber v. Mer-
ke.14 Here was a case in which several farms were located over an
artesian basin five miles by two miles, which had the water poten-
tial to supply all with enough naturally flowing artesian water,
as long as everyone kept his well capped when it was not in use.
The defendant, with intent to injure his neighbors, allowed his well
to flow freely and as a consequence the other farmers were unable to
obtain water. One of these injured persons brought the suit to enjoin
defendant from allowing his well to run, but the court said that it
was his water and he could do with it as he pleased. They also held
that his motive was unimportant and declared a statute forbidding
waste of artesian water unconstitutional on the ground that there
was no public interest sufficient to sustain use of the police power.
This statement of the Huber case indicates that the facts differ
materially from those cases cited above. The defendant was not using
his water in any useful way and was even intentionally wasting a
great deal of it. While the holding of the Wisconsin court is the
logical result of the language found in the cases preceding, it is by
Davis v. Spaulding, 157 Mass. 431,435, 82 N.E. 650,651 (1892).
1 117 Wias.55, 94 N.W. a54 (1903); Case v. Hoffman, 100 Wis. 314,75 N.W.
945 (1898) saying that "the water is deemed to be part of the soil itself, and to
the same extent, subject to whatever disposition the owner of the land may
choose to make; and if some damage happens to an adjacent proprietor b the
interception of some subterranean cMrent that i di s mummm ahqe itas.








COMMENTS


no means consistent with these cases on the facts. As far as this
writer has been able to determine, the Huber case has never been
cited with approval in any other court in the nation and some courts
have been ungentlemanly enough to criticize it severely."
The American Rule"
New York was among the states following the Acton view of the
rights in underground water in the early stages of water law develop-
ment. An early New York case" held that one diverting percolating
waters under his own land, using the water for his family and stock
so that they never reached his neighbor's spring, was not liable for
damages. In Smith v. City of Brooklyn'" where the city constructed
pumps drawing six million gallons of water per day and destroyed
plaintiff's surface water pond located on his land, the court held the
city liable. Although the court recognized its commitment to the
historic view, they said that where water was being transported off
the land for use by strangers, recovery will be granted to a damaged
adjoining land owner.
In 1898 the New York court logically developed the converse of
this in the Merrick case."1 Here the plaintiff was engaged in collect-
ing water and selling it to various customers in the neighborhood.
Defendant bought some land nearby and had sunk wells to sell water
to the city of Brooklyn. Plaintiff's supply was impaired and he tried
to enjoin defendant from drawing the water. The water was percolat-
ing and there was no evidence that it was being drawn from an under-
ground stream. Both were selling the water for use off the land. The
court held that no action could lie under the Smith case because
there the water was being used for the benefit of the land from which
it was being drawn by the complaining party. Thus, the Smith case
SThe comments range from the subtle blow of the Minnesota court in Erick-
son v. Crookston Waterworks, Power & Light Co., 100 Minn. 481, 111 N.W.
391 (1907) in which it'was said that "Huber v. Merkel is inconsistent with the
conclusion here reached. The merits of that opinion justify little more than
reference to it,"-to the comment by Farnham in his treatise on the law of
water where he stated that "There is absolutely no principle on which that deci-
sion can be founded. It is opposed to good morals, good sense, and all common
law principles which are applicable to analogous subjects, and the later and
better considered cases are beginning to recognize correlative rights in percolat-
ing waters and confine landowners to a reasonable use of it." 3 FAnNHaM, THE
LAw OF WATERS AND WATER RIGHTs 2718 (1st ed. 1904).
16 Bassett v. Salisbury Mfg. Co., 43 N.H. 569 (1862). This case is usually cited
as the first decision departing from the "English Rule" and adopting the "reason-
able use" doctrine.
"1 Village of Delhi v. Youman's, 45 N.Y. 362 (1871).
18 18 App. Div. 340, 46 N.Y. Supp. 141 (1897).
Merrick Water Co. v. City of Brooklyn, 32 App. Div. 454, 53 N.Y. Supp.
10 (1898).

54


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WISCONSIN LAW REVIEW


limited the right of the landowner to take water at the expense of
another owner to a case where he is using it for the benefit of his
land. In the Merrick case they both wanted to sell and the court
said:
... if one gets more than the other there can be no more ground
for complaint than if both sought to improve their own land and
one secured more than the other. As to such obligation the
doctrine of reasonable use and relative rights has never been
adopted except by New Hampshire."
With this background of cases the New York court tackled Forbell
v. City of New York,2 which the Wisconsin court used as authority
for their position, Plaintiff here was a grower of celery and water
cress for commercial use. Both products require substantial amounts
of water. The city built some pumping stations which drained the
underground supply of water from plaintiff's land and he asked
damages and an injunction both of which were granted. The court
recognized that "the letter of the law" as examined in the light of
the cases in this state required a denial of recovery. The court even
said that they were adhering to the old rule and gave the following
reasons:
A different rule would
(1) prevent reasonable use and improvement
(2) that without a grant or positive statute there can be no
4 easement in one parcel of land for the subsurface support
or supply of subsurface water in another parcel
(3) that the percolation and underground flow of water are
out of sight and their exact operation and courses are con-
jectural and not susceptible of actual observation and proof
(4) that damages, if any, are the remote or indirect consequence
of lawful acts."
They then stated that these reasons do not apply to these facts be-
cause by pumping water.and draining plaintiff's land the defendant
was engaged in an unreasonable use.
The Wisconsin court in the Huber case seized upon the language
sustaining the old rule and interpreted that to mean that the New
York court was adhering to the old rule and so would they. However,
five years after the Huber case the New York court was called upon to
S decide a case involving the pumping of mineral waters to market,
SMerrick Water Co. v. City of Brooklyn, 32 App. Div. 454, 457, 53 N.Y.
Supp. 10, 12 (1898).
3 47 App. Div. 371, 61 N.Y. Supp. 1005 (1900).
164 N.Y. 522, 525, 58 N.E.4, 6645 (1900).


IVo 19053








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COMMENTS


thus destroying the source of plaintiff's percolating mineral waters."
The defendant was wasting much of the water. While there was a
statute2 involved the court held there was a cause of action set
forth under common law because although:
... a landowner may by pumps or otherwise draw on the waters
percolating under the surface of his lands for a purpose naturally
and legitimately connected with the improvement and enjoy-
ment of his lands, even though it interferes with others, ... an
unreasonable attempt to force and increase the flow of such
waters for the purpose of diverting them to some use entirely
disconnected with such improvement and enjoyment, and,
whereby the flow of such waters under the lands of others is de-
stroyed or diminished, may be restrained as unlawful."
Again in 1909" in an action involving the mineral waters problem
the New York court had this to say about the ForbeU case:
That case laid down the rule of the reasonable use of percolat-
ing waters ... The adoption of this doctrine of a reasonable use
of one's property in subterranean percolating waters, to be
measured by the rights and necessities of others, as a modifica-
tion of the earlier rule, obviously, resulted from a consideration
of the differing conditions of the age and of the possibilities of
an unlimited and destructive use from modern engineering
methods.2"
From this we see that the Wisconsin court interpreted the ForbeU
case a good deal differently from the New York interpretation. In-
deed the New York interpretation has been followed in many other
jurisdictions.28 In some of the cases discussed a statute was involved,
and we can see the development by the New York court of its com-
mon law rules in order to uphold the statute.
The Huber case discussed Indiana cases on the subject at length
but again guessed incorrectly how later holdings would interpret the
rule. The first case in Indiana involved a railroad which cut off under-
ground springs that supplied plaintiff's well.2" In holding that no
Hathorn v. Natural Carbonic Gas Co., 194 N.Y. 326, 87 N.E. 504 (1909).
2 N.Y. Laws 1908, c.429.
Hathorn v. Natural Carbonic Gas Co., 194 N.Y. 326, 341, 87 N.E. 504, 510
(1909).
s People v. The New York Carbonic Acid Gas Co., 196 N.Y. 421, 90 N.E.
441 (1909).
2 Id. at 431, 90 N.E. at 444.
28 Gagnon v. French Lick Springs Hotel Co., 163 Ind. 687, 72 N.E. 849 (1904);
Katz v. Walkinshaw, 141 Ca. 116, 70 Pac. 663 (1903); Bower v. Moorman, 27
Idaho 162, 147 Pac. 496 (1915); Schenk v. City of Ann Arbor, 196 Mich. 75, 163
N.W. 109 (1917); Ross v. Knox, 71 N.H. 249, 51 AtL 910 (1902); Rothrauff v.
Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87 (1940).
2 New Albany & Salem Railroad Co. v. Peterson, 14 Ind. 112 (1860).







WISCONSIN LAW REVIEW


action lay against the railroad the court said that the law as to
underground waters is not the same as that of rivers and flowing
streams. It falls rather within the rule that the owner of the soil owns
also everything below including the rock and venous earth, and the
owner can use all that is there at his free will and pleasure, even to
the point of cutting off his neighbor's well.
In Gagnon v. French Lick Springs Hotel Company" the hotel sought
an injunction to restrain defendant from pumping the water of de-
fendant's own property which caused the water to stop flowing in
the "healing" springs of the hotel. The defendant could give no
reason as to why he was pumping the water, and the plaintiff sug-
gested that he was simply trying to force him to sell an interest in
,the hotel or to buy defendant's property at an exhorbitant price.
The injunction was granted, and the court recognized:
The strong trend of the later decisions is toward a qualification
of the earlier doctrine that the landowner could exercise un-
limited and irresponsible control over subterranean waters on
his own land, without regard to the injuries which might thereby
result to the lands of other proprietors in the neighborhood.
The court felt that the exceptions to the old rule were well founded
in the case where the diversion is purely malicious and is detrimental
to another proprietor.
The Doctrine of Correlative Rights
One state, having previously followed the common law rule, re-
jected it and now distributes available supply of water among land-
owners entitled." The rule states that the rights of landowners sit-
uated over a common basin, saturated strata or underground res-
ervoir are coequal and correlative and landowners cannot extract
more than their share of the water even for use on their own lands
where the rights of others are injured thereby.
Summary
First we have the "English Rule" which states the absolute owner-
ship of the waters beneath the surface. When the absolute rights of
one owner conflict with the absolute rights of another, the person
causing the injury must show an excuse. This limitation has taken
various forms, e. g., reasonable use in connection with the land from
0 163 Ind. 687, 72 NXE. 849 (1904).
SId. at 697, 72 N.E. at 82.
SThe "English Rle" was laid down in Hanson v. McCue, 42 Cal. 303 10
Am. Rep. 299 (1871); the doctrine of correlative rights put the old rue to leep
in Kat v. Wulkuhaw, 141 Ca. 116, 70 Pa. 668 (1903).


[Vol. 198







COMMENTS


which it is taken; requirement that malice be lacking; and qualifica-
tions where the rights of others are involved. These limitations were
developed into the doctrine of "reasonable use." California, having
recognized that there might be situations where both land owners
wanted to use the water reasonably, for use on their lands, and the
water supply was insufficient for both, added the requirement that
there must be apportionment of the water in such a situation. This
latter modification became known as the doctrine of "correlative
rights."
Rights in abstract, as discussed above, can only be valuable if
there is a concrete means of protecting them from destruction or
diminution. Thus the second phase of our problem is to determine
what the various jurisdictions have done to protect these rights.
Diversions of Underground Streams
The rights of property owners to underground streams are gen-
erally governable by the rules of law applicable to surface water
courses.
It has been said that an underground current of water flowing
in a well defined and well-known channel, the course of which can
be distinctly traced, is governed by the same rules of law that
govern streams flowing upon the surface of the earth."
The Huber case recognized that if subterranean waters flow in a
defined channel, "the rules which govern the use of surface streams
apply.""4
Naturally, the problem in the early days was to show that the
water was flowing in a "well defined and well known channel" and
for this the law found the presumption that underground waters are
percolating."
Diversion of Percolating and Artesian Waters
Suppose there is a saturated underground aquefer (or an artesian
pool) located under the land owned by two men. Mr. A sinks a well
to the depth of 50 feet and draws all the water he needs for his family
and stock. Mr. B is planning to sink a well 200 feet to obtain water.
u 3 FAnHAM, THE LAw or WATERS AD WATER RIGHTs 2726 (1st ed. 1904),
citing Wyandot Club v. Sells, 6 Ohio N.P. 64, 9 Ohio S. & C. P. Dec. 106; Saddler
v. Lee, 66 Ga. 45, 42 Am. Rep; 62 (1880).
Huber v. Merkel, 117 Wis. 355, 357, 94 N.W. 354, 355 (1903).
U "All underground waters are presumed to be percolating .. .", 67 C. J.,
WATERs 248; Huber v. Merkel, supra note 34, "presumption ... the waters.
are perolating until it is shown that they are supplied by a definite, flowing

58
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WISCONSIN LAW REVIEW


This well will draw water from the common source and lower the
water table below that level which will give A the water he needs.
Can A enjoin B from digging his well?
It is dear from the previous discussion of abstract rights that the
"English Rule" necessarily precludes A from any relief except that
he may dig deeper and pump harder and use any other means to in-
crease his flow of water. This is highly unsatisfactory because of the
added expense. No matter how we modify the situation with respect
to B's use of the water, A is without relief. Thus, whether B uses
the water on his own land, sells it, wastes it, even where it is impos-
sible for A to obtain water by going deeper, no recoveryis possible. A
easily could be put in a situation where he would be forced to abandon
'his farm if he were unable to obtain water. In an area where water
is so short of supply such as the arid southwest, that the land can
only support a limited number of people, this rule is strictly applied,
except that Mr. A would be protected to B's exclusion under the
doctrine which protects the prior appropriator to the extent of his
appropriation."
When our situation is viewed under the "American Rule" the use
to which B puts the water will be of primary importance. If he uses
.the water off the land" or sells it for use by distant consumers8 he
will be enjoined from such use provided that A is damaged. How-
ever, if B makes "reasonable" use of the water, the injury to A is
not actionable." A use is reasonable when use is made of the water
on the land from which it is drawn. Sale," distant use,a drawing by
high powered pumps," malice" are unreasonable uses and will be
enjoined provided, however, -that the use by A is reasonable.
The doctrine of prior appropriation briefly holds that one first making an
appropriation of water becomes entitled, as against all having or claiming in-
terests later, to the exclusive use and control of the water to the extent of his
appropriation. See 67 C. J., WATrS 409 (1934).
SLeading case is Forbell v. City of New York, 47 App. Div. 371,61 N.Y. Supp.
1005 (1900). See also Kats v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1903).
"Ibid
Uses for agriculture, manufacturing, irrigation and development of land for
mining have been held reasonable. Schenk v. City of Ann Arbor, 196 Mich. 75,
163 N.W. 109 (1917); Erickson v. Crookston Waterworks, Power & Light Co.,
100 Minn. 481, 111 N.W. 891 (1907); Hathorn v. Natural Carbonic Gas Co.,
194 N.Y. 326, 87 N.E. 504 (1909); See also 67 C. J., WATrs 409 (1934).
People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, 90 N.E. 441
(1909); Hathorn v. Natural-Carbonic Gas Co., 194 N.Y. 326,87 N.E. 504 (1909).
a Forbell v. City of New York, 47 App. Div. 371, 61 N.Y. Supp. 1005 (1903).
People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, 90 N.E. 441
(1909).
"Village of Delhi v. Youman'a, 0 Barb. 316, 45 N.Y. 862 (1871); Gmeeneaf
v. Francis, 18ck. 117 (Ma. 1836).


tVrL. 95l







COMMENTS


When we apply the California rule to the situation we find that a
reasonable use by A will prevent an unreasonable use by B." Priority
of use is not a factor and reasonable use on overlying lands is para-
mount to taking water for distant use. This is essentially the same as
the aAmerican Rule" but in a situation in which the available water
is in short supply, the amount available will be apportioned between
the overlying landowners."
Where B wants to use the water reasonably on his property, just as
A is doing, does B have to pay the expenses A incurs by going
deeper to meet B's 200 foot shaft?
It is believed that as long as the water is used on his own land B
cannot be enjoined from using the water nor suffer the expenses of
A. The concept of co-equal right to a pool necessarily precludes the
maintenance of a pool at one level to satisfy an existing user when
other co-equal owners need the water.
By simple physical laws water seeks its own level. The flowing of
water into the lower stratums and artesian pools is governed by this
law, and hence when water is drawn from the pool at a faster rate
than it flows in, the "water table" drops. This means that water is
taken from under the adjoining owner's land and if the injured party
does not complain, the right to that amount of water might be ac-
quired by prescriptive rights. California permits an action by the
injured party to have his rights declared so that if in the future he
wants to draw some water, the present user will not be able to assert
greater rights through prescription."
Efect of Malice
States following the "English Rule" have held that malicious in-
tent to injure your neighbor gives rise to no cause of action for
destruction of the neighbor's well.'4 Although our court in the Huber
case recognized the existence of much authority to the contrary they
re-affirmed a previous case by saying:
This court has recently and distinctly held that the exercise of a
property right cannot be affected or curtailed by a malicious
motive.48
Katz v. Walkinshaw, 141 Cal 116, 74 Pac. 766 (1903).
"HuTmcINS, SELECTED PROBLEMS IN THE LAW OF WATmB RGHTs IN THE
WEST, U.S. DEPT. or Ao., MIsc. PUB., No. 418, pp. 181-182 (1942).
4 See note 44 supra.
7 56 AM. Jun., Waters 121 (1947) citing only two states, Wheelock v.
Jacobs, 70 Vt. 162, 40 AtL 41 (1897); Huber v. Merkel, 117 Wis. 355, 94 N.W. 354
(1903).
Huber v. Merkel, 117 Wis. 355, 363, 94 N.W. 354, 356 (1903); approving
Metager v. Hochrein, 107 Wis. 267, 83 N.W. 308 (1900), cited with approval in
Graham v. Rakosi, 194 Wis. 110, 216 N.W. 140 (1927).


May]







WISCONSIN LAW REVIEW


Metzger v. Hecrein" was an action to abate a nuisance which con-
sisted of an unsightly board fence erected on defendant's property
which shut off plaintiff's view and reduced the value of her property.
The court felt that there was no physical damage to the plaintiff's
property. They cited Wood on Nuisancess Sec. 1 and said that:
In applying that [rule] to any given state of facts, it must be
kept in mind that the injury referred to, whether to property or
the occupants thereof, is physical. [Emphasis supplied.]
It seems clear to this writer that malicious waste of water that re-
sults in destruction of the wells of adjoining owners and the reducing
of available water supplies under his land to which the adjoining
owner has a right is clearly physical damage."
The Vermont court has held the same way in a case involving
underground water and stated that:
... it may be laid down as a position not to be controverted, that
an act legal in itself, violating no right, cannot be made actionable
on the ground of the motive which induced it.
But while a few states have taken this highly unrealistic position
at least nine others, following the "English" view as to the law of
underground waters, have found malice to be an actionable ground."
When New York was still following the "English Rule" they had
already affirmed the idea that:
S... no person can wantonly and maliciously cut off on his own
land the underground supply of a neighbors' [sic] spring or well
without any purpose of usefulness to himself."
An early Massachusetts case frequently cited in this area of the
law held that one can dig a well on his property even though it
diminishes the water in his neighbor's well unless in so doing, he is
actuated by a mere malicious intent to deprive his neighbor of
la water."
It takes a court of conscience to grant an injunction, and the result
reached in the Huber case in terms of malice seems unconscionable.
o 107 Wis. 267, 83 N.W. 308 (1900).
WOOD, TmH LAW oF NUIANCEs (1st ed. 1875).
6 Metzger v. Hochrein, 107 Wis. 267, 270, 83 N.W. 308, 309 (1900).
SEspecially in the light of the court's own view of the property nature of
water under one's land.
Chatfield v. Wilson, 28 Vt. 49, 57 (1885).
67 C. J., WATERs 257 (1934), listing the states.
Village of Delhi v. Youmans, 50 Barb. 316, 320, 45 N.Y. 362 (1871).
u Greenleaf v. Francis, 18 Pick. 117 (Mass. 1836).


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COMMENTS


Although the words used in the Huber case indicate an adherence to
the rule that where one is exercising an absolute right the law will
not inquire into his motives, the decision in the case belies the prin-
ciple because rights exist as a ground for a proper purpose and not
as a cover for malice."5
In those states following the "American Rule" and its variation,
malice is an element of the action which renders the use "unreason-
able.""
Summary of Non-Statutory Law
In diverting percolating waters the following is a summary of the
best law as it appears to this writer.
1. When a person taps an underground stream flowing in a defined
channel the rights of all parties are determined by the law of surface
streams and riparian rights.
2. Where the prior appropriator uses the water for sale to a distant
user and the subsequent appropriator uses the water in beneficial
use of the land from which it is taken, the subsequent appropriator
can take all the water necessary for his reasonable use and enjoin
the prior appropriator from taking an amount which would deny him
the amount necessary for his use.
3. Where neither uses the water on the land from which it is taken,
neither have any protected legal rights in the water.
4. Where both use the water on the land from which it is taken
there is a split in jurisdictions:
a) Reasonable Use; under this view each party can take all the
water he can use reasonably;
b) Correlative Rights; under this view each party can draw only
his share if there is not enough to go around.
5. Where malice is the motivating factor in any situation the mali-
cious intention bars rights.

STATUTORY MATERIAL
Waste
When one's land is situated over an artesian basin, along with
many other landowners, he has the good fortune, in many cases, of
not having to pump his water. Tapping the basin is all that is re-
quired, and the water rises by hydrostatic pressure. If the wells
In general, see discussion in 8 FA~NHA, TaE LAW or WATrEs AMP WATi
RIGMa 997 (1st ed. 1904).
Barclay v. Abraham, 121 Iowa 619, 96 N.W. 1080 (1903), Stilwater Water
Co. v. Farmer, 89 Minn. 58, 93 N.W. 907 (1908); Kats v. Wakinahaw, 141 CaL
116,70 Pac. 668 (1902).


May]








WISCONSIN LAW REVIEW


are kept covered, the pressure will be sufficient for all. If several
wells, or if even one well is allowed to flow when not in use, the pres-
sure is lowered throughout the basin and not only are the other
owners damaged, but the artesian water allowed to flow freely is
wasted.
To remedy this situation many states have adopted the rather
mild type of regulation declaring that artesian wells should be capped
to prevent waste when the water is not being used.* While the
statutes that have been adopted are similar in purpose, the theory
on which they are based and the sanction imposed has been varied.
One group of states has declared uncapped artesian wells to be a
nuisance. In this category is the California statute, as amended, pro-
,viding that the person responsible for the maintenance of the nuisance
is guilty of a misdemeanor.*0
Another example of the nuisance statute is the Michigan language
which provides that in addition to allowing the well to flow the waste
must be:
... unreasonable ... to the depletion or lowering of the head or
reservoir ... to the detriment or damage of other wells. ... 6x
The sanction in Michigan is somewhat broader in that it allows
actions for abatement and all damages to the person injured that
are allowed in other nuisance actions. Once a decree is entered declar-
ing a particular well or use to be a nuisance, an unusual provision
places the burden on the Michigan courts to:
specify in some practicable manner the daily amount or
volume of water that may be used or allowed to flow therefrom
without violating such decree ... .
Water conscious New Mexico has the most elaborate statutory
provisions for the regulation of artesian wells."6 Here the wasting of
artesian water is a misdemeanor and also a nuisance." The criminal
penalty is a fine of not less than twenty-five dollars nor more than
two hundred fifty dollars for each offense-each day constituting an
9* California adopted a statute of this kind in 1878. Cal Laws 1877-1878,
CLIII, p. 195.
so 1 CAL. GEN. LAws act 528, 1 (1937).
MICH. COMP. LAws, 692.201 (1948). Unreasonable uses of water are also a
nuisance, 692.202.
u MICa CoMP. LAws, 692.203 (1948). The California courts undertook a
similar burden in Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1902) to allocate
the water in a basin among the landowners proportionately in the case where
there was not enough water to go around for all reasonable uses.
With two Articles (12 and 13) of their statutes comprising some 17 pages of
law. See N.M. STrA. ANN. (1941).
SN. M. STAT. ANN. 77-1208 (1941).


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COMMENTS


offense." To execute the law the state engineer has been given power
to make reasonable regulations as to plugging the wells" and an
artesian well supervisor is appointed in each county and paid by a
property tax in the county, to enforce the law."6 When a flowing well is
found and the owner notified, he has ten days to cap it or the state
will cap it for him and their expense becomes a lien upon the land.68
The State of Washington requires capping from the middle of
October to the middle of March." The penalty for violation is a
fine not exceeding two hundred dollars "for each and every of-
fense."70 In addition, the neighbors living within a five mile radius
may enter the land, cap the well and the expenses incurred will be a
lien upon the well and enough land around it to cover the cost. The
lien can be foreclosed in a civil action in any court of competent
jurisdiction."
Minnesota simply states that:
For the conservation of the underground water supplies of the
state, the commissioner is authorized to require the owners to
control artesian wells to prevent waste."
Chapter 29 of Title 89 of the Montana Revised Codes is very
neatly entitled, "Conservation of Underground Water." Recognizing
the need for control in this field the act was adopted in 1947. The
policy was to "prevent waste of underground waters.""
No person owning or controlling an artesian well shall suffer or
permit the water thereof to flow to waste except..., to be taken
... for beneficial purposes."

As with New Mexico, the state engineer has been given the burden
of administering the act, and hearings can be held on his own motion
or on the motion of neighboring users to determine whether the use
of the water complies with the act."
N. M. STAT. ANN. 77-1212 (1941).
SId. at 77-1204.
Id. at 77-1203.
Id. at 77-1208.
SWASH. REV. STAT. ANN. 7404 (1932).
Id. at 7406.
Id. at 7407.
Mnm. STAT. 105.51 (1949). Violation of the'act is a gross misdemeanor,
105.54.
n MoNT. Rv. CODEs ANN. 89-2908 (1947).
d. at 89-2904.
M Id at 290. Violations of thelact constitute a misdemeanor, 89-2906.


May]







WISCONSIN LAW REVIEW


Wisconsin History
With various states concerned with the regulation of underground
water resources, it is little wonder that Wisconsin also passed a
statute in 1901 attempting to alleviate the injury done to adjoining
landowners when one user allows his well to flow freely without using
it beneficially. Section 2 of the act provided:
Any person who shall needlessly allow or permit any artesian
well owned or operated by him, to discharge greater quantities
of water than is reasonably necessary for the use of such person
so as to materially diminish the flow of water in any other
artesian well in the same vicinity, shall be liable for all damages
which the owner of any such other well shall sustain."
The inherent flaws in this statute are at once apparent to the
careful reader. This writer sees three inherent weaknesses:
1) Making an action depend on whether the flow is "reasonably
necessary" to the owner of the well.
2) Making the action depend on whether the flow "materially
diminishes" the flow in other wells.
3) Providing as a sanction a private right for damages very
difficult to ascertain.
In the statutes examined existing in other jurisdictions these pro-
visions are absent or modified by existing law." The Wisconsin act
has no definitions nor policy section. It places too great a burden
upon the courts, and poor choice of words makes it unnecessarily
vague.
The court in the Huber case gave many indications of their dis-
pleasure with the wording of that statute. At one point they state
that:
It does not even pretend to conserve any public interest. Upon
its face its purpose is to promote the welfare of one citizen by
preventing his neighbor from using his own property." [Em-
phasis supplied.]
As to the sanction provided in the statute, the court fully recognized
that one distinction between their holding and the holding of the
Indiana court on "somewhat similar" questions was the fact that
U Wi. Laws 1901, C. 354.
n The Michigan statute alone is similar to this act but it is modified by (1)
the court adopting the "American Rule" and (2) the burden is placed on the
court to administer the division of water supplies.
n Huber v. Merkel, 117 Wis 355, 366-67, 94 N.W. 354,358 (1908).


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Maay


COMMENTS


the Indians cases involved "criminal" statutes.7" The court says
further:
It is to be noticed, also, that both the [Indiana] laws are framed to
protect public rights and interests, and not private rights. ..
The opposite situation to allowing your artesian well to run freely
and wastefully is to put a pump down into the reservoir and draw
out a great deal, although putting it to a good use. In 1891 Indiana
passed a statute regulating the artificial means by which the fow of
natural gas is increased."' The regulation was necessary to protect
all the owners of the land situated over the saturated area. The
Indiana court held this statute valid" and the Wisconsin court used
the opinion to strengthen its position (although the holding was
opposite). The Indiana court had said that the difference:
S.. between natural gas and underground waters,... is so marked
that the principles which the courts apply to questions relating
to the latter are not adapted to the adjustment of the difficulties
arising from conflicting interests in this new and peculiar fluid."
The only distinction between natural gas and water which the
Indiana court found "so marked" was that natural gas:
... is not generally distributed, and, so far as now understood, it
can be used for but few purposes; the most important being that
of fuel. Its physical occurrence is in limited quantities only,
within circumscribed areas of greater or less extent."
Thus there are two distinctions: 1) gas is not generally distributed
and 2) it occurs only in limited quantities.
The regulatory statutes dealing with artesian water are predicated
upon these very same concepts. While water can be said to be gen-
erally distributed, an unreasonable and wasteful use by one party
n Huber v. Merkel, 117 Wis. 367, 94 N.W. 358 (1903).
N Id. at 368, 94 N.W. at 358. This writer feels that in any statute dealing with
this type of problem two sections are imperative: (1) Waste Forbidden. For the
conservation of underground water supplies of the state, the Public Service Com-
mission is authorized to require the owners to control artesian wells to prevent
waste. (2) Waste Defined. For the purposes of this act, waste is defined as causing
or permitting any artesian well to discharge unnecessarily upon the surface of
the ground, unless said waters are to be placed to a beneficial use under the con-
stant supervision of the personusing such water.
I Ind. Laws 1891, c. 89. "It is hereby declared to be unlawful for any person
... to use any device ... that shall have the effect of increasing the natural flow
of natural gas from any well...."
Manufacturers Gas & Oil. Co. v. The Indiana Natural Gas & Oil Co., 155
Ind. 461, 57 N.E. 912 (1900).
Id. at 468, 57 N.E. at 915; language cited with approval in Huber v. Merkel,
117 Wis. 355, 369-370, 94 N.W. 354, 359 (1903).
Manufacturers Gas & Oil Co. v. The Indiana Natural Oil & Gas Co., 155
Ind. 461, 468, 57 N.E. 912, 915 (1900).







WISCONSIN LAW REVIEW


can deprive another landowner of the "general distribution" under
his land. The fact that water supplies are becoming limited in quan-
tity is indisputable, and by adopting the flat statement by the Indiana
court the Wisconsin court was assuming the very point to be proved.
The distinction is, in short, one of words, and if the Wisconsin court
was aided by the language of the Indiana court perhaps they have
adopted a new rule of law called aider by language.
As was pointed out earlier, the basic inconsistency in saying that
a person has a property right in underground water that cannot be
taken without compensation is that when he exercises it to the
detriment of his neighbor, he is actually taking his neighbor's prop-
erty without compensation.
This basic proposition is bolstered by an excellent expression by
the Indiana court when dealing with that argument. It stated:
This is but to say that one common owner may divest all the
others of their rights without wrongdoing, but the lawmaking
power cannot protect all the owners in their enjoyment without
violating the constitution of the United States."
One last point needs be considered about the Huber case. The
court made the general statement that:
In this state, both by the constitution and judicial decisions, it
is settled that those parts of the common law which were in
force at the time of the adoption of the Constitution and were
not inconsistent therewith remained in force until changed by
the legislature."
The first case dealing with the law of underground waters was the
English case previously referred to." This case was decided in 1843,
a mere five years before the adoption of the Wisconsin Constitution.
Although many American states had followed the rule stated in that
case, they made a complete reversal when it became clear that the
secretness and occultness of underground water could hardly stand
as a basis of judicial opinion in the face of modem engineering and
geological science. It seems to this writer that the American courts'
determination as to what is the common law, based on American
physical conditions and modern engineering science, is of greater
force than the few English precedents; and Wisconsin is free to adopt
a new rule of law.without doing any violence to this constitutional
provision.
U Manufacturers Gas & Oil Co. v. The Indiana Natural Oil & Gai Co., 155
Ind. 461, 473, 57 N.E. 912, 916.
Huber v. Merkel, 117 Wis. 355, 364-365, 94 N.W. 354, 357 (1903); citing
WIs. CONST. ABicxra XIV, 13, and Coburn v. Harvey, 18 Wis 156 (1864).
Acton v. Blundell, 12 M.W. 324, 152 Reprint 1223 (1843).


67


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COMMENTS


Diversions of Underground Water
If we are going to use our water resources economically, it is easy
to see the need for the prevention of waste. It is not as easy, however,
to see the need for regulating the use of the water as between adjoin-
ing private owners; and yet without some regulatory mechanism,
our conservation program is useless. For while waste is an important
factor, it is not as destructive as ruinous exploitation. It is not sur-
prising that in areas which have a salt water problem, such as Hawaii
and the four ocean counties of New York, regulations as to use have
quickly developed.88 These two areas have had an interesting history
in the field of water regulation.
New York
In 1908 New York passed "an act for the protection of the natural
mineral springs and to prevent waste and impairment of its
natural mineral waters."8' The prohibitions contained in the statute
were directed at the acceleration or increasing the flow of percolat-
ing waters from wells bored into rock by pumping. The first section
forbade pumping absolutely and without qualification. The second
section forbade pumping when the result would be to impair the
natural flow in an adjoining landowner's well. The third section
forbade increasing the flow artificially when the object was to extract
the carbonic gas for purposes of sale.
The only one of the sections that was held valid was the third
because:
As we have seen, the landowner has no vested right naturally
and unreasonably to force the flow of percolating waters for the
purpose of marketing them, or for any purpose not connected
with the use or enjoyment of his land."
The court saw that this was not a new declaration of law, but rather
a reassertion of their newly found doctrine of "reasonable use." How-
ever, as an indication of what they were thinking, the court added
dicta:
... I should have no doubt that the latter [third section] was
within the powers of the legislature, even if it was a new step in
.the realm of police or regulative legislation.91
N.Y. Laws 1908, c. 429; N.Y. Laws 1933, c. 563; Hawaii Laws 1927, c. 222.
N.Y. Laws 1908, c. 429. -
n Hathorn v. Natural Carbonic Gas Co., 194 N.Y. 326, 87 N.E. 504 (1909).
f Id. at 343, 87 N.E. at 510; cases cited in the police power discussion included
Townsend v. State, 147 Ind. 624, 47 N.E. 19; Ohio Oil Co. v. Indiana, 177 U.S.
190 (1900).


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WISCONSIN LAW REVIEW


The constitutionality of the statute was again tried in People v.
New York Carbonic Acid Gas Co." In this case the defendants denied
the allegation that their pumping had any connection with the lower-
ing of the water in adjoining springs. When defendant offered ev-
idence to show no connection, it was excluded. This was held to
be error and the court read into the statute an intent to regulate
only the conflicting rights of the landowners who derived enjoyment,
or profit, from the use of these waters. The court added:
S. but the state could not, under the plea of protecting its
natural resources, arbitrarily, arrest the want of the defendants
and deprive them of the right to prosecute a lawful business,
whatever its effect upon the subterranean mineral waters and
gases."
The case of Lindsley v. Natural Carbonic Gas Co." reached the
Supreme Court of the United States involving the same New York
statute. They held that it violated no provision of the federal con-
stitution and added:
It is to prevent or avoid the injury and waste suggested that
the statute was adopted. It is not the first of its type. One in
principle quite like it was considered in Ohio Oil Co. v. Indiana."
[Emphasis supplied.]
The case to which they referred mirrored almost exactly the facts
contained in the Lindsley case with one difference. Whereas in the
Ohio Oil case it was natural gas and oil that was commingled, in the
Lindsley case it was carbonic acid gas and water. In the former case,
the owner attached value to the oil and let the gas escape into the
air; in the latter, the owner attached value to the acid gas and let
the water flow away on the surface. The Indiana statutes" prevent-
ing that waste was held constitutional by the United States Supreme
Court. The statute was attacked as divesting private property with-
out due compensation but the court rejected this contention holding
that on the contrary it was:
... a statute protecting private property and preventing it from
being taken by one of the common owners without regard to the
enjoyment of the others.97
" 196 N.Y. 421, 90 N.E. 441 (1909).
SId. at 435, 90 N.E. at 445-446.
220 US. 61 (1911).
Id. at 74; Ohio Oil Co. v. Indiana, 177 U.S. 190 (1900).
Ind. Laws 1893, c. 36.
Ohio Oil Co. v. Indiana, 177 U.S. 190, 210 (1900).


[Vol. 1953










The Supreme Court clearly pointed out the dilemma which the at-
tackers faced:
If the right of the collective owners of the surface to take from
the common fund, does not create a property interest in
the common fund, then the statute does not provide for the tak-
ing of private property without compensation. If, on the other
hand, there be ... a right of property,. there must arise the
legislative power to protect the right of property from destruction."
[Emphasis supplied.]
In 1933 facts were presented to the New York legislature by the
Water Power and Control Commission and the United States Geo-
logical Survey which indicated that the underground waters under
Long Island were being depleted. This depletion was threatening the
adequacy of the water supply for domestic consumption. The leg-
islature promptly adopted a statute to cope with this problem:
... made in the exercise of the police power of the state and its
purposes generally are to protect the public health and public
welfare in conserving the supply of water for domestic consump-
tion.9*
This statutory expression of concern with the problem of water
supply became Article 11 of the New York Conservation Laws enti-
tled "Water Supply." The key provision is that:
No person ... shall hereafter install or operate any new or addi-
tional wells in the counties of Kings, Queens, Nassau or Suffolk
... to withdraw water from underground sources for manufactur-
ing or industrial purposes... where the capacity... is in excess
of one-hundred thousand gallons a day without first obtaining
the approval of the commission.100
The figure of one-hundred thousand gallons per day as a practical
matter does not limit in any way domestic consumption or normal
farm use.10'
No property right in the water is obtained, however, even by com-
pliance with the statute. In New York Water Service Corp. v. Water
Power & Control Commission'" the plaintiff received permission from
the commission to dig as many wells as was necessary to supply its
consumers. Four years later, on its own motion, the commission
Ohio Oil Co. v. Indiana, 177 U.S. 190, 210-211 (1900).
"N.Y. Laws 1933, e. 563.
I' N.Y. CONSERVATION Law, 521-a.
1M The act specifically exempts inter alia "use of water for agricultural pur-
poses." N.Y. CONSERVATION Law 521-a.
9 N.Y.S. 2d 299 (1939).


May]


COMMENTS







WISCONSIN LAW REVIEW


rescinded the order. The plaintiff then claimed that the subsequent
order deprives him of a property right created by the previous order.
The court rejected this contention on what seemed to be two grounds:
1) it was beyond the power of the commission to let the plaintiff
determine the necessity for further wells and 2) that the original
order:
... even in form, not only created no rights in physical property,
but no right to do anything or to possess, create, enjoy, prevent,
or destroy anything. No right was granted which partook the
aspect of property. [Hence the right was taken away.10
No case involving the constitutionality of the statute could be
found, and this fact leads this writer to the conclusion that the water
,law of New York, in terms of legislative authority to conserve, has
been settled by the previous fight over mineral waters.
Hawaii
In 1927, the Territorial Legislature of Hawaii was advised by the
Honolulu Sewer & Water Commission that the water resources within
the District of Honolulu were limited and would not increase with
the growth of population. They promptly adopted a statute on the
basis that:
... the health and general welfare of the public will require that
the manner and extent of the development, conservation, use
and control of the water resources... should be ... regulated by
governmental authority. ..'"
Section 5 of the act provided that:
... it shall be unlawful for any person to sink... any new artesian
well in the District of Honoulu ... except under ... a permit
... from the commission.1
Very shortly after the statute was adopted, the City Mill Company
- filed an application with the commission for permission to sink a
new artesian well in order to furnish water to a large number of
houses, cottages, stores and apartment buildings. The commission
denied the application because more water was being tapped from
the basin already than what was altering in by natural processes.
New wells would further decreasethessupply to thewextent that the
salt content would be increased tolthevpoint as to make all the water
in the basin non-potable.
1 9 N.Y.S. 2d 299,301 (1939).
m Laws of Hawaii 1927, .222
lmbia.


IVol. 1953







May] COMMENTS 513

The court declared the statute unconstitutional, but it was very
careful to point out that:
This is not a controversy concerning the power to regulate. It is
solely a controversy with reference to the power of the Territory
to entirely prohibit the digging of the proposed well.1"
This indicates that the court was worried about the fact that other
users could keep right on using the water and stated:
However broad and far-reaching the police power may be, it
cannot, we think, be deemed to justify, under the showing made
in this case, the prohibition of the appellants proposed well
while at the same time permitting all existing wells to continue
to be operated without diminution.1' 7
While at first blush this case seems to severely limit the right to
regulate underground water, close examination reveals that it is
simply a logical conclusion to be drawn from the doctrine of "cor-
relative rights." The court adopted this view of underground waters
and recognized that "each should exercise his right as not to deprive
others of their rights in whole or in part."108
We can now see the importance of the California rule of "correla-
tive rights" when operating in a practical situation. The land owners
have a co-equal right to their share in the artesian pool, and nothing
can deprive them of their share save their own consent.
Would this rule apply to underground percolations which are not
formed in artesian pools? There is very little chance that it would
apply. Certainly the above discussion, clearly indicates that New
York would not follow it; and the Hawaiian court, on at least one
occasion in their opinion, used this idea to distinguish the old English
and early American rule.
Wisconsin History
In 1945 the Wisconsin legislature delegated to the State Board
of Health the power to regulate the construction of new wells which
draw in excess of 100,000 gallons per day.1' The section has the rather
peculiar limitation that the Board of Health must first find that the
proposed withdrawal will "adversely affect or reduce the availability
of water to any public utility in furnishing water to or for the pub-
lic."ne The major weakness in terms of conservation and economic
s* Cty Mill Co. v. Honoluk Sewer & Water Comm., 30 Hawaii 912, 945-46
.. at 946.
m Id. at 925.
o Wis Laws 1946, e. 308; now Wa. SA. 1951, 144.03 (7)
M Wim. Laws 1945, o. 303; now Wis. BSO. 1951, 144.0 (8).


MISSION







WISCONSIN LAW REVIEW


use is the limitation quoted above. A recent recommendation by the
Joint Legislative Council, if adopted, will narrow this limitation by
adding (to the list of those who must be adversely affected) the re-
quirement that when ten or more owners .of individual wells are
affected approval shall be withheld or limited. This addition in no
way affects the constitutionality of the statute because the police
power is being used to conserve water supplies and protect the "pub-
lic health, comfort, welfare and safety."m

GmaENER CONCsLroNS
S The modern day trend toward conservation of our natural re-
sources, regardless of form, necessarily demands that our important
water resources be used economically only. It was indeed unfortunate
that the law of underground water began its development before
modem engineering science gained knowledge of its movements.11
This accident developed legal concepts which no longer adequately
reflect our scientific knowledge and ought to be dropped.
With full development of our resources, without waste, as our goal,
the legal problem which faces us is not the question of desirability
of regulation. Our problem is to find the best method of regulating
without doing violence to the rights of private owners. Many of the
extreme methods used, such as declaring all water to be owned by
the state,"1 or declaring it held in trust for the people of the state,14
or declaration of property rights not to be disturbed by statute or
malice,1 have their root in the court-made law based on erroneous
scientific and economic materials. What is needed is a reasonable
regulatory mechanism, designed to protect rights and uses as between
individual owners for the benefit of the entire state. A proposed
statute, appearing in this Review,1" is designed to effectuate this
policy.
The constitutionality of a statute of this kind gives us little diffi-
. culty under the weight of authority in the United States. The public
at large, as well as adjoining landowners, have an interest in the
preservation of the natural resources of land. If this is true with re-
m Wi. STAT. 1951, 144.03 (6).
m "The physical laws governing the movements of ground waters are well
established, and relatively simple engeerin investigations will determine the
direction of ground-water motion.... Proceeding of Am. Soc. of Civil Engineers,
'S No. 10 (Dec.), p. 1687 (1939).
-/ Ore. Laws 1909, e. 221, On. CODm ANN. 47-403 (1930); N.M. STAT.
ANN. 77-1101 (1941).
"n Wash. Laws 1945, c. 26.
Huber v. Merkel, 117 Wis. 358, 94 N.W. 354 (1903).
m Coate, Legal Conrol of Wier Resources, 1953 Wir L. IRa. 256, 275-281.

4 73


[VoL 1953







COMMENTS


gard to natural gas, oil and timber, it applies a fortiorari to water
resources. This public interest is sufficient to justify appropriate
legislation to prevent exploitation and waste by the owner of the
land under which water happens to be found.11
From the general discussion dealing with the three common law
rules, the difficulty in which the courts have found themselves when
attempting to effectuate justice among landowners can readily be
seen. This difficulty was magnified when legislation appeared de-
signed to conserve resources and prevent waste. It seems best, to
this writer, that the courts forget all the common law distinctions as
to "reasonable use" and "correlative rights" and recognize the need
which prompts legislative action. Landowners' rights can be ade-
quately protected by the usual tests applied in cases of regulations
promulgated by the independent administrative agencies.

DAVID LEO UELMEN
n' In general see 24 A.L.R. 307 (1923).













I


May]











Present and Proposed Legal Control
of Water Resources in Wisconsin

GLENN R. COATES*

CONFi CTS IN WATER USE
It has indeed been suggested that until the invention of irrigation
on a large scale, the world really enjoyed some such Golden Age
of peace as the poets describe; dissension first became general
from coveting the well-watered lands of others.1
The hypothesis set forth in the above quotation is supported by
the existing conflict over water rights in Wisconsin between the ir-
rigators who wish to make a consumptive use of water and the sports-
men who fear that any diminution of surface water supplies will
seriously endanger fish life and recreation. The conflict has not reached
the proportions of open warfare or violence; however, there have been
unsubstantiated reports of property destruction in the form of clog-
ging irrigation pumps with sand. The conflict has not even culminated
in a court battle, but an action was started by the state against
certain potato growers who had dug irrigation pits in the bed of
Spring Brook, a stream which flows through Antigo, Langlade County,
Wisconsin. The action was prompted by a complaint to the Public
Service Commission on the part of certain Antigo citizens who con-
tended that the diversion above Antigo was responsible for the stag-
nant condition of a city pond fed by Spring Brook. Out of court
settlement was reached when it appeared that Spring Brook, from a
geological standpoint, was a reflection of the ground water level in
' the area. In Wisconsin, jurisdiction over ground water use is vested
in the State Board of Health while the Public Service Commission
has jurisdiction over rivers and streams. Thus the Public Service
Commission was satisfied with the restoration of a channel equal in
capacity to the former channel. The terms of settlement were justified
under existing law but it was at least doubtful that the Antigo Pond
would be less stagnant.
The undertow of tension was evidenced at meetings of the Legisla-
Member of Heft, Brown, Stewart, & Coates Racine, Wisconsin; LL.B.
1949, Carnegie Law Fellow 1950-51, S.J.D. 1953, University of Wisconsin Law
School; Member, Board of Editors, Wisconsin Law Review, 1947, 1948.
1 S&mM, EVOLTION oi MAN 132 (1924); quoted in Weil, Pifty Years of Water
Lzo, 50 HABv. L RKv. 268 11936).







March] LEGAL CONTROL OF WATER RESOURCES


tive Council Committee on Conservation which is studying the water
problem and again by correspondence directed to the Wisconsin
College of Agriculture by the President of the Wisconsin Division of
the Izaak Walton League. This correspondence followed newspaper
reports of the session on irrigation at the annual Farm and Home Week
sponsored by the College. The League President was opposed to any
dissemination of knowledge gained from research on irrigation without
equal emphasis on the claimed destruction of Wisconsin's water re-
sources by irrigation practices. Attempts by College Representatives
to assure the League President that they were doing their work in
agricultural research in the interest of all people in the state were un-
availing. In his annual report to the division conference, the League
President again charged that some College of Agriculture Professors
were harming public waterways by promoting irrigation projects.2 It
was asserted that these professors "seem to fail to understand that
all the people of the state have a vital interest in our public water-
ways." The criticism of irrigation was closely tied to resentment of
the farm subsidy program particularly as it affects potato production.
There was much to be said in behalf of both participating interests
in this controversy. Such information as was available on irrigation
showed that the artificial application of water increased per acre
yields from 100 to 600 bushels in potatoes, from 50 to 85 bushels in
grains, and from 39 to 100 bushels in corn.3 Starting largely with
specialty crops, irrigation is now being expanded to include hay crops
and pasture. Assured application of water at critical times in the
growing season is proving far more beneficial than chance application
by nature. Improved crop varieties and greater use of fertilizers
leaves water the limiting factor in crop production even in areas where
the average rainfall is over thirty inches. Better irrigation equipment
plus capital accumulated from lush years in agriculture have given
impetus to this growth. Exact figures on the number of irrigators in
Wisconsin are not available but it is known that there are more than
150 operators who are irrigating all or part of their farms.
On the other side of thepicture, recreation now represented a 300
million dollar industry in Wisconsin-the third largest.4 Much of it-
depended upon the state's 927,360 acres of inland water.5 Fishing
3 Speech reported in Wis. State Journal, Madison, Wis., Apr. 20, 1950, p. 1.
WISCONSN CONSERVATION BULLTI 23 (Feb. 1950).
4 Address by Asst. Atty. Gen. Roy Tulane before the Tri-State Legis. Council
Comm. on Conservation April 20, 1950.
SWISCONSIN CONSERVATION BULLETIN 16 (Feb. 1950).

76







WISCONSIN LAW REVIEW


license sales for 1949 showed over one million fishermen using the
state's water. One hundred thousand waterfowl stamps were sold.*
The conflict between the irrigators and the sportsmen was part of
a larger picture. The underlying conflict in Wisconsin was between
the consumptive users of water and the non-consumptive users. The
hydro-electric power interests, the other large non-consumptive user
of water, joined with the recreation interests in a desire to maintain
static water levels. Hydro-electric power development depends upon
maximum water level and steady stream flow in the larger streams.
Wisconsin has no readily available supplies of coal or oil Except in
the industrial area along Lake Michigan, power for. its industry
depends upon electrical power generated by water driven dynamos.
Yet Wisconsin ranks high among the manufacturing states. In addi-
tion to industrial use, farmers and homeowners were large users of
electrical power.
The other large consumptive uses of water included industrial uses
and domestic use on the farms and in the cities. It is impossible to
estimate how much water is used for domestic farm purposes. Res-
idential consumption in Wisconsin's municipalities showed a per
capital average in the neighborhood of 200 gallons per day. Wider use
of automatic washers and garbage disposal units is undoubtedly in-
creasing the demands for household use. A rather recent use, air
conditioning, consumed an estimated eight million gallons of ground
water per day during the summer of 1948 in the Milwaukee area.
In the last thirty years consumption of water by municipalities
for industry and residences has more than kept pace with the increase
in population. The records in million gallon units pumped by four of
Wisconsin's cities are presented below:7
1920 1930 1938 1948
Appleton 561 781 768 1,423
Madison 1,430 2,532 2,760 4,268
Milwaukee 24,486 30,750 31,732 42,320
Superior 977 1,118 1,034 1,405
When we consider the variety of economic uses of water, it is dif-
ficult if not impossible to define a public interest in water. If there is
a public interest, that interest would seem to be the accommodation
S of increasing uses to a constant supply so that the greatest economic
advantage could be secured from the resource. It was at least ques-
SWISCONSIN CONSERVATION BULLETIN 43 (Feb. 1950).
7 The data on municipal use is taken from material collected by a seminar
group of the Dept. of Agr. Econ., Univ. of Wis. College of Agr.


[VoL 1953







March] LEGAL CONTROL OF WATER RESOURCES 259

tionable whether recent legislation headed in this direction. It rather
appeared that the balance of power in the legislature was in favor of
non-consumptive users insofar as the bills passed favored static water
levels.
The 1935 legislature added Section 31.14 to the Statutes. This pro-
vides for permits from the Public Service Commission for the diver-
sion of water from any stream for any purpose. Permits to divert
surplus water (water not being beneficially used) may be granted if
there is no perceptible injury to public rights in the stream. Permits
for water other than surplus water require the consent of any riparian
owners who may be injured by the diversion. As of March 24, 1950
only one permit had been granted for the diversion of water for a
consumptive use.8 It was even more strange to discover that this
constituted the only application that had been made. The record of
one application and one permit belied the interest of Wisconsin
farmers in the use of water for irrigation. A search of correspondence
directed to the Public Service Commission revealed thirty-five re-
quests for information regarding water rights for irrigation and eleven
complaints against present irrigators. The replies of the Commission
helped to explain in part the absence of more applications. The usual
reply consisted of a reference to the requirements of Section 31.14, a
statement that permits were generally hard to obtain, and then,
without apparent inconsistency, a reference to the common law rights
of a riparian owner.9 That the effect or validity of the statute was
not clear to the Commission was evidenced by the replies. That it
was not clear to practicing attorneys was evidenced by their inquiries
among the correspondence. In any event the act was not encouraging
any consumptive use.
Section 31.14 referred only to streams. A more realistic approach
was shown by Bill number 234S which was introduced in the Wiscon-
sin Senate in 1937.-Although the draftsman's notes10 indicated that
the bill was prompted by a dispute over artesian well water, no dis-
tinction was made between ground water supplies and surface water
supplies. Section 1 of the bill declared that the general welfare re-
quired the utilization of all water resources for the greatest possible
beneficial use. To accomplish this the remaining sections provided
Permit issued to the State Dept. of Public Welfare for irrigation at the Green
Bay Wis. Reformatory. The other riparin owners did not consent, however the
Public Service Comm. made a finding that injury to the riparian owners could
not be foreseen. The hearing is reported in 2 WP 761.
The riparian doctrine will be discussed below.
's Taken from the Bill Jacket maintained by the Wis. Legis. Reference Library.







WISCONSIN LAW REVIEW


for water use permits from the State Board of Health and for the
determination of relative rights of claimants to water. In the grant-
ing of permits, priority was to be given to municipal water supplies.
Beyond this, the board was to be guided by .a policy of assuring the
highest use and maximum economic development of water for all
purposes. The bill was laudable in its approach to water as a resource
having certain economic uses. It was seriously defective in its failure
to provide a standard for the determination of relative rights, in its
failure to adequately define the status of existing rights, and in its
failure to define the legal consequences attaching to any permit which
was granted.
Substitute amendment IS to this bill was wholly negative in its
approach. It made no effort to license or control future uses of water.
It did empower the Boad of Health to prevent waste of artesian
well water after complaint and investigation. Both the bill and the
amendment were referred to the judiciary committee and there died
with the adjournment of the session.
The 1945 legislature created Section 144.03(6), (7) and (8) of the
statutes. This legislation deals exclusively with ground water supplies.
It requires a permit for new or reconstructed wells which alone or in
connection with other wells for use on the same property, have a
total capacity in excess of 100,000 gallons per day. As of April 21,
1950 the State Board of Health had entertained 178 applications for
such high capacity wells. Of these 122 had been granted uncondition-
S ally, 47 were approved subject to future limitations if the need arose,
8 were denied and 1 was pending. The eight denials were for wells
which had been constructed without prior approval Nineteen of the
permits were for irrigation purposes." The record of denials and per-
mits sheds little light on the policy of the Board of Health in admin-
istering the statute other than its outright refusal to grant permits for
wells constructed without prior approval. The only basis of refusal
t given in the statute was possible interference with the availability of
water to a public utility furnishing water to or for the public. Some
indication of policy was shown by the information required from
applicants. This included data as to the existing supply, the amount
and nature of present consumption, the depth and formations to be
penetrated by the proposed construction, alternative sources of sup-
-J ply, and the location of the proposed and existing wells in relation to
the wells of the nearest public water utility.
Bill number 282S which was introduced in the Wisconsin Senate in
n Data prepared for the writer by Thomas A. Calabresa of the State Board of
Health.

4. 79


[VoL 1953







March] LEGAL CONTROL OF WATER RESOURCES


1949 was designed to increase the power of the Public Service Com-
mission to order abatement of encroachments upon public rights in
navigable waters, insofar as it would eliminate de novo review of the
findings of fact made by the Commission if its investigations. The
bill did not affect substantive rights in water, nonetheless, the hearing
before the Assembly Legislative Committee12 was attended by various
agricultural groups who are interested in irrigation. They protested
the change which suggests that the irrigators felt, justifiably or other-
wise, that they would get better treatment under court findings than
under administrative findings of the Public Service Commission. This
bill was passed by the Senate but defeated by the Assembly on the
recommendation of the Assembly Committee on Conservation.
The 1949 Legislature did resolve all doubts in favor of power in
the Public Service Commission to fix a level for any body of navigable
water in the state." This in conjunction with Section 31.14, discussed
previously, gives the Commission power to control the diversion of
water from any stream or any navigable lake. As of March 24, 1950
the Commission had determined minimum levels for two lakes under
the act.
The foregoing brief picture of concern over water use suggests
that increasing demands are being made and will be made for an
adjustment of water use privileges. The spotlight, momentarily, at
least, was on the irrigators and the sportsmen. This was unfortunate
insofar as it focused attention on surface water supplies. The problem,
in its broader aspects was one of water resources. This was indicated
by the fact that the only real evidence of depleted water supplies
was the lowered ground water levels in the Milwaukee, Green Bay
and Fond du Lac areas where consumption for industry, air condi-
tioning and municipal purposes exceeds replenishment by rainfall.14
Both for the present and historically, it is questionable whether
irrigation could claim any monopoly over the creation of conflict in
water use. The early mill dam acts were an attempt to foster the
economic growth of the community as against the rights of the ripar-
ian owners." The legislation of 1911, 1913 and 1915 represented an
effort on the part of the state to control the use of water for the
R Reported in The Capital Times, Madison, Wis., Apr. 20,1949, p. 4.
Wis. Laws 1949, a. 125, amends Wis. STATS. 31.02(1) (1947).
SSecond of two articles on Wisconsin rainfall, The Capital Times, Madison,
Wis., Apr. 21, 1950, p. 11.
"s The constitutionality of these acts was upheld in Head v. Amoskeag Mfg.
Co., 113 U.S. 9 (1885) and Newcomb v. Smith, 2 Pinney (Wis.) 131 (1849).








WISCONSIN LAW REVIEW


development of hydro-electric power.16 As recently as 1931, the rela-
tive rights in water of the lumber interests and the hydro-electric
power interests were determined by the Wisconsin Supreme Court.1
Chief Justice Rosenberry concluded his opinion in the case with the
following remarks:
It is suggested that a spirit of reasonableness and cooperation
would go far in solving the problems presented by the conditions
which exist on many of the interior navigable waters of the state,
to the end that the natural resources of the state shall be made
available to the highest extent reasonably possible for all public
purposes.
Few would dispute the laudable result urged by Chief Justice Rosen-
,berry. It was open to serious question, however, whether the result
urged is possible under the existing legal structure.

THE EXISTING LEGAL SmT CTURE
All the rivers run into the sea; yet the sea is not full; unto the
place from whence the rivers come, thither they return again.8
The courts and legislators in declaring the law of water use have
paid scant attention to the above biblical observation. The phenom-
enon described is known in modern scientific language as the hydro-
logic cycle. It recognizes that there is but one source of water and
that is precipitation. The precipitation falling in Wisconsin is in part
evaporation from the Gulf of Mexico. Of the thirty-one inch average
rainfall in Wisconsin it is estimated that fifty per cent runs off the
surface into watercourses, thirty per cent is evaporated and the re-
mainig twenty per cent is absorbed by the ground.19 Further David
G. Thompson of the United States Geological Survey states that
nearly all groundwater is moving to maintain the flow of surface
streams.20 Ultimately all is again evaporated into the atmosphere
SNow Wis. STATS. c. 31 (1949). The 1911 act (Wis. Laws 1911, e. 652) was
declared unconstitutional as a taking of property without compensation in
Water Power Cases, 148 Wis. 124, 134 N.W. 330 (1912). The 1918 act (Wis.
Laws 1913, c. 755) was declared unconstitutional as not affording adequate
judicial review in State v. Wis. Minn. Light & Power Co., 165 Wis. 430, 162
N.W. 433 (1917). Meanwhile the 1913 act was repealed and Wis. Laws 1915,
c. 380 was enacted. The re-capture clause therein was upheld by an equally
divided court in Fox River Paper Co. v. R.R. Comm., 189 Wi 626, 208 .W.
266 (1926) and by the U.S. Supreme Court, 274 U.S. 651 (1927).
1 Flambeau River Lumber Co. v. R.R. Comm., 204 Wis. 524, 236 N.W. 671
(1931).
ECCLsIm sTE 1:7.
Wisconsin 1934, Regional Plan Report, p. 181.
Quoted in HurcHos, SELECTED PROBLEMS IN THE Law OF WATER RIGHTS
IN THE WEST. (U.S. Dept. of Agr. Misc. Pub. No. 418, 1942).


81


[VotL 1953







March] LEGAL CONTROL OF WATER RESOURCES


thus completing the hydrologic cycle. Since all supplies are thereby
interrelated, it would suggest that the law would define a right to
use water. Yet in a typical jurisdiction like Wisconsin there is one
rule applicable to rivers and streams, another to lakes, another to
"mere" surface water, and another to percolating underground water.
The discussion of the existing legal structure will accordingly be
divided into three main headings based on the immediate source of
supply. These are (1) surface water in watercourses which includes
streams, lakes, rivers, or ponds; (2) diffused surface water which in-
cludes water on the surface of the earth which has not yet become a
part of a watercourse; and (3) ground waters which includes all water
under the surface of the earth.1
Surface Waters in Watercourses
Surface waters in watercourses are waters flowing continuously or
intermittently in natural surface channels from definite sources of
supply, and waters flowing through lakes, ponds, and marshes which
are integral parts of a stream system.2 The flow must be or have been
in sufficient quantity to form a bed and banks as distinguished from
hollows or ravines which carry rains and spring thaws from a higher
level to a lower level." The existence of a watercourse is a question of
fact for the jury.Y In the absence of legislation, the extent of legal use
of this water depends upon the theory of water law prevailing in the
particular jurisdiction.
1. The Riparian Doctrine
Wisconsin" and thirty other states in the United States have
adopted the doctrine of riparian rights exclusively. These include all
states east of the Mississippi River and the tier of states bordering
the Mississippi River on the west, the humid area of the United
States. Under the riparian doctrine the privilege to use water depends
upon the location of the land on which the water is used in relation
to the location of the stream or lake. The owner of riparian land has
certain privileges of use not accorded to a non-riparian owner. Before
proceeding then with a statement of the riparian doctrine, it is neces-
sary to define what is meant by riparian land.
S The terminology is adopted from HunTmNS, supra note 20. Courts generally
use the term surface waters only in connection with what is herein called "dif-
fused surface waters."
HuTcmNs, op. cit. supra note 20, at 7.
Hoyt v. City of Hudson, 27 Wis. 666 (1857).
SEulrich v. Richter, 37 Wis. 226 (1875).
Delaplaine et al v. C. & N.W. Ry. Co., 42 Wi. 214 (1877). Ws. STAT. 30.01
(4)(c) (1947).







WISCONSIN LAW REVIEW


There is no single definition of riparian land applicable to all states
which are committed to the doctrine. Certain things are clear and we
can generalize to the extent of saying that it is essential that the
land be contiguous to the water and be in one owner or in the words
of the Wisconsin Court,
Riparian rights proper are held to rest upon title to the bank of
the water.'
The existence of a watercourse and the ownership of riparian land
thereon are the factors necessary to bring the riparian doctrine into
operation. The riparian owner, as such, is entitled to have the stream
or lake flow by or through his land substantially undiminished in
quantity or quality. This strict right to the natural flow of the stream
or natural level of the lake is subject however to a privilege on the
part of an upper riparian owner to make a reasonable use of the water
as it flows past his land. There is no such privilege in the owner of
non-riparian land"
What then is a reasonable use? The term implies that it is a ques-
tion of fact in each particular case. As such it is difficult to generalize.
To the extent that generalization is possible, we can set forth certain
pegs used by the courts in deciding cases. Stock watering and domestic
use are reasonable even to the complete exhaustion of the stream.
Temporary detention for the development of water power is reason-
able. As between different uses, the less valuable must yield. As be-
tween similar uses, equality of right prevails. The utility of the use
is balanced against the gravity of the harm.28 The court has the job
in each case of evaluating conflicting interests and necessarily that
which is reasonable as against one use and in one stream will not be
reasonable as against a different use or in a different stream.
The riparian right is a property right which cannot be taken for a
private purpose nor for a public purpose without compensation." It
Diedrich v. The Northwestern Union Ry. Co., 42 Wis. 248 (1877).
See the rationale in Munninghoff v. Wisconsin Conservation Comm., 255
Wis. 252, 38 N.W.2d 712 (1949) where the court says at 259, 38 N.W.2d at 715,
"The riparians exclusive nght to use the water arises directly from the fact that
non-riparians have no access to the stream without trespass upon riparian lands."
See REsTATMasNr, Toans 852 (1939).
Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 US. 254
(1891); Munninghoff v. Wis. Conservation Comm., 255 Wi. 252, 38 N.W.2d
712 (1949); Water Power Cases, 148 Wis 124, 134 N.W. 330 (1912); green Bay
& Miss Canal Co. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N.W. 1121
(1895)' Priewe v. Wisconsin State L and andImpvement Co., 93 Wis. 534,
67 N.W. 918 (1896). The U.S. Supreme Court in the Kaukmm case indicated
however, that there could be no compensation for the loss of the mere technical
right to have the after flow as it had been accustomed.


83


[VoL 1953







March] LEGAL CONTROL OF WATER RESOURCES


cannot be lost by non-use or abandonment. A lower owner may suffer
the loss of his right by adverse possession of an upper riparian or
.non-riparian for the prescriptive period. It is well to note at thi
point that the protected property right of a riparian owner is subject
to limitation when it conflicts with public rights in the watercourse.
This will be discussed in some detail below. .
The riparian right in Wisconsin has to a considerable degree been -
affected by recent legislative enactments. The validity of these acts as
against the protected property right has not been determined by the
Wisconsin Supreme Court. Section 31.14 of the Wisconsin Statutes '
affects all streams in Wisconsin. It gives the riparian owner the full
protection of his right to the natural flow of the stream but prohibits
any consumptive use of the water without a permit from the Public
Service Commission. Permits to use surplus water are granted to
riparians or non-riparians. Permits for water other than surplus water
are granted to riparians and non-riparians if all riparians injured by
such diversion consent thereto. No water may be diverted to the
injury of public rights in the stream. The construction of the statute
turns on the meaning of surplus waters. If surplus water is that
amount which will not constitute a substantial diminution of the
stream, it leaves the non-riparian without a change of position" but
curtails the privileged reasonable use of a riparian. We noted previr
ously that the privilege of reasonable use exists independently of the
consent of other riparian owners. If surplus water is that amount
which would constitute a reasonable use, it enhances the position of
the non-riparian but does not affect the riparian owner except insofar,
as the initial determination of what is reasonable is shifted from the
court and jury to an administrative body. Conjecture as to the mean-
ing of surplus water may appear unnecessary inasmuch as the act
defines it as any waterwhich is not beingbeneficially used. This is not
as helpful as it might appear. The question immediately arises as to
whether the test is "beneficially used as of the present" or "bene-
ficially used as of the date of enactment." The latter construction is
doubtful. There is no saibgi clause in the section for prior diversions
in contrast with othei sections of the chapter referring to dam per-
mits which make special references to existing dams. No provision .
SWis. Iaws 1985, e. 287.
a Although there is no privieag of reasonable use in an owner of non-riparian
land under the riparian doctrine he may still me that which wiB not case a .,
substantial diminution inoe by denitiou the riparian owners right is only to
the flow "substantially undiminished "
"WIS. STAT. 31.07, 81.18 (1951).

84 ^







WISCONSIN LAW REVIEW


is made for the ascertainments of uses occurring prior to the enact-
ment. Subsection 3 merely provides that the Commission may deter-
mine how much of the flowing water at any point in a stream is sur-
plus water. This strongly suggests that the test of "beneficially used"
is made as of the present. However, we can presume that the Com-
mission would not grant a permit for a wasteful purpose, much less
would such a permit be sought. Thus any water used under a permit
would be beneficially used. How then can we explain subsection 9
which provides ". .. that when any water in a stream ceases to be
surplus water, the diversion of such water shall cease. .. ." By defini-
tion, if the test is of the present, once beneficial use commences that
used ceases to be surplus water.
Subsection 9 rather suggests that "beneficially used" means use
for non-consumptive purposes and thus encourages static water levels.
This is even more apparent when we consider that the bill was
designed and drafted to permit diversions from one stream to main-
S tain the normal flow of water in another stream or lake. The reference
to agriculture and irrigation was added as an afterthought." The
difficulty of using a statute designed for a particular purpose to
ascertain rights for a wholly different purpose is illustrated by the
circles through which any possible construction leads us as well as
by the fact that one application has been made and one permit
4 granted for irrigation purposes in the fifteen years that the act has
been effective.
The riparian doctrine determines water use privileges on both lakes
and streams. We have seen how the doctrine as applicable to streams
has been modified by Wis. Stat. 31.14. The 1949 Legislature mod-
ified the doctrine as it applies to lakes by providing that the Pub-
lic Service Commission may by order fix a level for any body of
navigable water below which the same shall not be lowered.' There
is reason to believe that the Commission had this power before
the amendment. It was used in 1931 against a railroad company
which was using water from Silver Lake near Portage, Columbia
County, Wisconsin." In any event, the 1949 amendment resolved all

See the Bill Jacket on Was. LAws 1935, c. 287, Wisconsin Legia. Reference
Library. Adolph Kanneberg, who assisted in drafting the bill states that the
cultural provisions were added for the benefit of cranberry rowers, 1946
L.. REV. 345, 373. No permits for cranberry growers have been granted,
however.
a Wis. STAT. 31.02 (1951), as amended by Wis. Laws 1949, c. 125. Thi-
amendment actually applies to all bodies of navigable water. It is cited as affects
Slakes primarily ecae we can assume that 31.14 will continue to be the going
rote for streams.
n WP 434, PSCW, June 24, 1931.


[VoL 1953







March] LEGAL CONTROL OF WATER RESOURCES


doubts in favor of the power and the Commission has, in reliance on
the amendment, fixed minimum levels for two lakes where consump-
tive use for irrigation was being made or threatened. It is difficult to
ascertain a policy on the basis of the records in three cases. In the
1931 railroad case, the Commission, in its opinion, recognized the
privilege of a riparian owner (the railroad) to make a reasonable use.
It was determined that the railroad had exceeded its privilege and
the level fixed was apparently that level which would permit only a
reasonable use. In the two recent cases involving Spirit Lake in Vilas
County and Twin Lakes in Waushara County, no apparent effort
was made to reconcile the determined levels with privileged riparian a
use. This can in part be explained by the fact that the irrigator on
Spirit Lake and the would-be irrigator on Twin Lakes were both non-
riparian owners. On Spirit Lake the present elevation was found as
88.20 feet and the high water level was 93.60 feet. The Commission
fixed the minimum level below which water could not be impounded
at 90.60 feet. On Twin Lakes the present elevation was found as 93.44
feet and the high water level was 97.14 feet. The Commission fixed
the minimum level at 95 feet. The Commission found in both cases
that the present low level was caused by lowered ground water levels
resulting from deficient rainfall. There had been no water use on
Twin Lakes. Irrigation was being practiced on Spirit Lake but there
was no convincing evidence that this caused the low level. In fact
testimony was offered that the present level was comparable to the
1932-1933 level which was prior to commencement of any irrigation
from the lake. The testimony in both cases showed that the levels
varied with the rainfall cycle and that the present levels were not
necessarily the low levels."
The minimum levels fixed were apparently those levels which could
be anticipated in the years following heavy to normal rainfall. It
was also apparent that nature was going to violate the fixed levels in
years following normal to low levels. What was the effect upon the
riparian doctrine? The Commission assured riparian owners of their
rights to the natural flow. Since both irrigators involved were non-
riparian owners, their rights were not denied. Their use under the
doctrine is limited to that which would not constitute a substantial
diminution. However, it must be remembered that the fixed minimum
level does not merely constitute the decision in these two cases. It is
prospective as to all future consumptive users from these lakes, be
they riparians or non-riparians. A would-be riparian owner fnay now
Hearings on Spirit Lake reported in 2 WP 768, PSCW, Oct. 17, 1949; on
Twin Lakes in 2 WP 772, PSCW, Oct. 20, 1949.







WISCONSIN LAW REVIEW


use water from these lakes during years of high level; he can use none
during periods of normal level or low level. It is certainly true that
one of the factors in determining reasonable use is the volume of
water available. It is not however the only factor. Seemingly, the
S doctrine does not exist merely to sanction water use during periods
of high water levels.
The foregoing discussion of legislative modification of the riparian
doctrine avoids the constitutional question of infringement of pro-
tected property rights. This will be discussed in some detail at a
later point. For the present the picture is that the Wisconsin Legisla-
ture has, intentionally or otherwise, given full expression to that
aspect of the riparian doctrine which assures the riparian owner of a
right to the natural flow. In the same breath it has dulled, if not
destroyed, that other edge of the doctrine, the privilege of reasonable
use.
B. The Doctrine of Prior Appropriation
The doctrine of riparian rights is a product of jurists." In contrast,
the doctrine of prior appropriation was recognized and enforced by
the Courts in deference to the well recognized practice of laymen.
The doctrine of prior appropriation is the exclusive water law in
the states of Arizona, Colorado, Idaho, Montana, Nevada, New
Mexico, Utah and Wyoming. The states of California, Nebraska,
North Dakota, Oklahoma, Oregon, South Dakota, Texas and Wash-
ington recognize both the riparian and the appropriation doctrine
concurrently. We shall postpone our discussion of this latter group
of states because of the close ties with the proposed changes in the
Wisconsin law. Our purpose at this point will be to ascertain the effect
of the doctrine as an exclusive system of water law.
The right to use water under the appropriation doctrine arises
S from a diversion of water plus application of that diverted to ben-
eficial use. Priority in time gives the better right. The location of the
land in respect to the watercourse is not a factor.
The doctrine is now generally embodied in the constitutions and
statutes of the appropriation states. The states of Colorado and
Wyoming have provided the patterns of public control.
The right of appropriation is acquired in Colorado by the con-
struction of the necessary diversion works and the application of the
The American jurists Story and Kent are to be given credit for the promulga-
tion of the doctrine in Anglo-American legal theory. They adopted it from the
French Civil Code. The term "riparian" was first used by Story in Tyer v. Wilkin-
son, 4 Mason 397 (U.S. 1827). The English case first applying the theory was
Mason v. Hill.


[VoL 1953







March] LEGAL CONTROL OF WATER RESOURCES


water to beneficial use. A claim must be filed in the office of the state
engineer within sixty days after the commencement of the construc-
tion.38 Jurisdiction over the adjudication of water rights in a given
water district is vested in the district court of the county where such
water district lies.
To acquire a right of appropriation in Wyoming, an application
for a permit to appropriate must be made to the state engineer."
The engineer shall approve all applications which contemplate ben-
eficial use and do not impair existing rights or are detrimental to
the public welfare.'n
The controlling difference between the two systems is that the
water belongs to the public in Colorado and to the state in Wyoming.
The latter state thus requires permits to appropriate and initiates
adjudication of rights while the former gives vent to individual ini-
tiative both in acquiring rights and in adjudicating rights. It should
also be noted that Colorado freezes its preferred uses in the Con-
stitution while Wyoming determines this by statute.41
The statutory requirements stated above suggest that the doctrine
of prior appropriation today is similar in name only to the early
notion of acquiring water rights by digging a ditch and posting a
notice on the nearest tree. The doctrine was workable in a simple
society where the diversions were by individuals and small capital
outlay was required. As the number of claimants on a particular
stream increased it was necessary to have a central agency to record
rights. Further, litigation between two parties on the stream settled
conflicts only between the two, yet many parties had an interest. It
was inevitable that the administrative process was to be used to pro-
vide for acquisition of rights, distribution of water, and adjudication
of rights.4
The doctrine of prior appropriation, though preferable to the ripar-
ian doctrine in encouraging efficient water use, is by no means a per-
fect system. An early appropriator may have appropriated a greater
amount of water than he can efficiently use. He is protected however
so long as the water taken is applied to a beneficial use.4* Since his
right can be lost by non-use, he may well be deterred from making a
SCom. STAT. ANN. c. 90, 27 (1935).
Wro. Cor. STAT. ANN. 71-238 (1945).
SId. at 71-240.
SWyo. ComP. STAT. ANN. 71-402 (1945).
Lasky describes the development well in his title From PrioAppropria-
tion to Economic Dstribuion of Water By The Stae-Via Irrigation Adminitre-
tion, 1 RoKY MouNsI mI LAw REvI E 161 (1929).
u Enterprise Irrigation District v. Willis, 135 Neb. 827, 284 N.W. 326 (1939).

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WISCONSIN LAW REVIEW


more efficient use. Early methods of diversion may have been over
long stretches of non-arable land wherein much is lost through seep-
age in natural channels. The method of diversion is however protected
as part of the property right." An early appropriator may be using
S the water on inferior land, yet he is protected in his appropriation if
he wishes to continue the use there and even if he wishes to change
the place of use he may be prevented from doing so if other appro-
priators incur harm thereby.'
The power to reject applications as in the Wyoming Code" will
solve many of these problems so far as future water rights are con-
cerned, however it does not correct waste resulting from existing
vested rights. Less emphasis on priority and more on beneficial use
through increased administrative control over distribution of water
is a suggested solution for the latter.47

Diffused Suface Waters
- Diffused surface waters are waters which, in their natural state,
occur on the surface of the earth in places other than a watercourse,
lakes or ponds.4" Much of the judicial controversy in connection with
such water has concerned the riddance rather than the beneficial use
thereof. This has been particularly true in the eastern states where
the supply of water is generally adequate, and to a lesser degree even
in the western states. Since we are concerned primarily with the use
of water, attention will not be given to the problem of riddance.
We have already noted the difficulty of distinguishing between
diffused surface water and surface water in watercourses. The dis-
tinction is necessary because the answers to questions of obstruction,
repulsion, retention or use depend upon the pigeonhole in which the
immediate source of supply is placed. Riparian rights do not attach
S to diffused surface waters.4' It has been held both in the states which
adopt the exclusive appropriation system and in those adopting the
two fold system that the appropriation doctrine does not apply to
diffused surface waters.60
T Barrows v. Fox, 98 Calif. 63 (1893).
SHaasler v. Fountain Mutual Irrigation Co., 93 Colo. 246, 26 P.2d 102 (1933);
Tatterefield v. Putnam, 45 Ariz. 156 41 P.2d 228 (1935). A discussion of defects
in the doctrine appears in STATE WATER LAW IN THE DEVELOPMENT OF THE
WEST, REPORT SUBMITTED TO THE WATER RESOURCES COMM., NAT'L RESOURCES
PLANNING BOARD 38 ff (1943).
SSupra, note 39.
4 NAT'L RESOURCES BOARD REPORT, op. cit. supra, note 45 at 59.
HUTCHum, op. cit. supra, note 20, at 3.
Hoyt v. The City of Hudson, 27 Wis 656 (1871); Fryer and Wife v. Warne,
29 Wis. 511 (1872).
Hu vTcamw op. c. supra note 20, at 111-112, and cases cited therein.


[VoL 1953








March] LEGAL CONTROL OF WATER RESOURCES


There has been comparatively little litigation concerning the rights
to use this water. No case on the subject has been found in Wiscon-
sin. Under existing law, however, the problem does not appear to be
one of difficult solution. Since riparian rights do not attach to such
water, the lower landowner is not in a position to insist that the water
flow to his land. It follows that the upper owner will be able to use
it while it is on his land or can store it on his land for future use.
This notion of absolute ownership in the landowner also appears
to be the accepted rule in the states when the appropriation doctrine
prevails. At least the Supreme Courts of Wyoming and Idaho have
recognized the superior claim of a landowner to surface water im-
pounded by him as against asserted state control5 and as against a
would-be appropriator."
A similar but exceedingly more difficult question in terms of social
result may well arise in a controversy between an appropriator from
a stream and a landowner who impounds surface water which is
obviously an important source of that stream. The court would be
confronted with two conflicting property interests which are that
the appropriator is entitled to protection from all injurious inter-
ference with the source of supply and the doctrine that the owner-
ship of land includes all diffused surface water thereon. The conflict
has not been settled in the western states except insofar as the
categorical rules are applied. The inherent difficulty of applying dif-
fering rules to a single resource is again apparent. The National Re-
sources Planning Board recommends that the landowner's use be
limited in relation to the effect upon the rights of the lower appro-
priator." It is, of course, unlikely that the problem will become as
serious in the humid areas, at least so long as the basic conflict is
between consumptive and non-consumptive users. Diffused surface
water has no known non-consumptive use.
Ground Water
Ground water is herein defined as all available water under the
surface of the earth. However, the discussion will be limited to rules
relating to percolating waters, which term is meant to exclude that
water under the surface of the earth which so flows as to constitute
a defined underground stream. This is a court-made distinction. In
Wisconsin, no case has discussed the legal rules applicable to defined
State v. Hiber, 48 Wyo. 172, 44 P. 2d 1005 (1935).
-" King v. Chamberlin, 20 Idaho 504, 118 Pac. 1099 (1911).
SNAT'L REsOUvCES PhL&b ING BOABD, op. ci. supra, note 45, at 65.

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WISCONSIN LAW REVIEW


underground streams, however the court, in percolating water con-
troversies, has indicated that different rules do apply.5 It would be
repetitious to discuss the law of underground streams in the West.
The courts there have said that water use from underground streams
. is governed by the same rules as use from surface streams. From this
we may assume that the Wisconsin court would apply the riparian
doctrine to defined underground streams if the existence of one is
ever shown in this state.
The Wisconsin law on percolating waters is set forth in the case of
Huber e. Merkde The court after ascertaining that the subject mat-
S ter was percolating water adopted the English rule to the effect that
the owner of land has an absolute right to withdraw all the water he
wishes by wells on his own land. This was an action in equity to
restrain the defendant Merkel from wasting or using unreasonably
the water from artesian wells on his land. The evidence showed that
the defendant allowed water to run from his wells continuously;
v that he sold some, that other well owners in the neighborhood were
injured by such use and that these other well owners regulated the
flow of their wells. A statute in Wisconsin then provided that where
there were two or more artesian wells in any neighborhood, the owners
thereof should use care and diligence to prvent any loss of water
and should be liable in damages to other injured well owners if such
S well was permitted to discharge greater quantities of water than was
reasonably necessary for the use of the owner." The court held that
the defendant, as the owner of the land, had a right to sink a well
thereon and use the water drawn from said well as he chose or to
allow it to flow away regardless of the effect it might have on neigh-
boring wells. The court said that this was a property right which
could not be impaired; and that the legislative act referred to could
not be sustained under the police power because it promoted a pri-
S vate interest rather than a public interest."
In 1943 the Wisconsin Legislature sought to overrule Huber v.
Merkel by a statute providing that all new or. reconstructed wells
which are to be used on the same property and which alone or in
combination have a capacity in excess of 100,000 gallons per day
must be approved by the State Board of Health through a permit
system. Permission may be denied if the board feels that such with-
Huber v. Merkel, 117 Wis. 355, 94 N.W. 354 (1903); Case v. Hoffman, 100
Wis. 314, 74 N.W. 220 (1898).
Ibid.
a Wia. Laws 1901, e. 354.
s Similar statutes have been upheld in the West See Ex Parte Elam, 6 CaL
App. 233, 91 Pac. 811 (1907), Eccles v. Ditto, 23 N.M. 235, 167 Pac. 726 (1917).
I


[VoL 1953








Marqh] LEGAL CONTROL OF WATER RESOURCES


drawal will adversely affect a public utility well furnishing water to
the public.'8 This statute has not been attacked in a court action and
its effect on Huber v. Merkel is therefore uncertain.
In contrast to the common law rule, many courts in the United
States have adopted the "American rule of reasonable use" of per-
colating water. The rule as originally set forth by the New Hamp-
shire court in Bassett v. Salisbury Mfg. Co.6' is more in line with our
legal notions of possessory rights in land. It restricts each owner of
land overlying a common water supply to a reasonable exercise of
his right in view of the similar rights of others just as the use of his
land is limited by its effect on neighboring owners. It is in this respect
similar to the riparian doctrine as it restricts use on watercourses,
however a difference does exist. The difference is best illustrated by
those cases permitting the owner of land overlying a common supply
of ground water to transport the water for use on distant land. Such
use will not be enjoined in an action by a neighboring owner unless
such owner can show an interference with the use of water on his
land.40 The rule of reasonable use may thus be stated to be that
the owner of land overlying a common supply of percolating ground
water is entitled to be free from harm caused by the lowering of the
water table. The riparian owner meanwhile is entitled to have the
water substantially undiminished. To the extent that some courts
have modified the riparian doctrine by requiring a showing of actual
damages the two rules are more identical.
Since both of the above ground water rules give the greatest right
to the owners of land overlying the supply, it is not unnatural to find
that some of the western states, in the interest of having the best
land utilized, have extended the appropriation principles to all ground
water. We have already noted that defined underground streams are
subject to the same rules as surface streams.61 Subjecting percolating
waters to the doctrine has proceeded more slowly because of the
difficulty of ascertaining the nature and extent of such water. Appro-
priation and state control is not as conducive to an indeterminate
supply.
Nonetheless, the states of Idaho, Kansas, Nevada, Utah and
Wyoming have subjected all ground waters to appropriation. In
New Mexico, Washington and parts of Oregon, the waters of under-
SWIs. STAT. 144.03 (6), (7), (8) (1949).
"48 N.H. 569 (1862).
SBurr v. Maclay Rancho Water Co., 154 Cal. 428, 98 Pac. 260 (1908).
The presumption is that underground waters are percolating. See Maricopa
Co. Mun. Water Cons. Dist. l et al. v. Southwest Cotton Co. et o., 39 Ariz. 65,
85, 4 P.2d 369 (1931) and cases cited.

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WISCONSIN LAW REVIEW


IVoL 1953


ground streams, channels, artesian basins; reservoirs or lakes having
reasonable ascertainable boundaries are declared public waters and
subject to appropriation for beneficial use. Arizona requires permits
for the use of water in critical ground water areas as determined by
the State Land Commissioner. These states generally have compre-
hensive codes controlling acquisition and adjudication of rights and
distribution of water.
To summarize the existing legal structure, Wisconsin is technically
committed to the doctrine of riparian rights which, briefly stated,
gives a riparian owner the right to the natural flow of the stream or
lake subject to a reasonable use on the part of an upper riparian
owner. The water user in Wisconsin, be he a riparian or non-riparian,
is however confronted with legislation, which as applied, gives him
something considerably less than the use privileges under the riparian
doctrine, legislation which rather encourages static water levels.
If the riparian doctrine as modified by statute encourages static
surface water levels, the court-made law of ground water use in
Wisconsin, encourages destruction of ground water levels by giving
approval to individual waste. This is to a degree alleviated by stat-
utory control requiring permits for water use above stated quantities.
Even this statute, however is designed to conserve water use for
municipal purposes only and by vesting administrative control in a
different agency prevents any correlation of surface water uses with
ground water uses.
Ironically enough, as Wisconsin, which has abundant water sup-
plies, has by legislation modified the riparian doctrine in favor of
natural levels, the arid western, states have abandoned the doctrine
in favor of system encouraging the application of water for ben-
eficial purposes under administrative control. To the extent that some
western states have adapted appropriation principles and the accom-
panying state control to ground water use, controlled use of all water
from all sources is correlated in one agency under one law.

SUGGESTED LEGISLATIVE CHANGES
The following proposed legislation is an effort by the writer to
suggest a means by which the beneficial use of water may be extended
to consumptive users as well as non-consumptive users. Following
the proposed act is a discussion of its intended changes in Wisconsin
law.
The act was drafted as part of a study conducted in 1950 under the
combined auspices of the University of Wisconsin School of Law and







March] LEGAL CONTROL OFWATER RESOURCES 275

College of Agriculture Department of Agricultural Economics. It
does hot intend to be a complete answer to Wisconsin's water prob-
lems but it does propose a legislative recognition of those problems
and puts in motion a correlated attempt by a single agency to solve
them.
Although the act is in many respects an original effort in that it
strikes at Wisconsin's particular problem, reliance has of course been
placed on existing statutes in western states and proposed legisla-
tion for humid areas, notably Michigan. No serious effort has been
made as of this publication to have the act adopted by the Legisla-
ture though it has been made available to State Commissions respon-
sible for water'use studies in Wisconsin. Its consideration by those
agencies will undoubtedly result in many worthwhile changes designed
to meet the particular needs of Wisconsin. Considerable study and
revision should precede its introduction to the legislature.

THE PROPOSED WATER DIVERSION ACT
An act to provide for the regulation of the diversion and use of
water; to promote the conservation and beneficial use of water; to
provide for the acquisition of new rights to divert water; to vest in
the Public Service Commission supervisory power in such respects,
and for other purposes.
The people of the State of Wisconsin, represented in senate and
assembly, do enact as follows:
1. 144.03 (6), (7) and (8) of the statutes are repealed.
2. 31.02 (1) of the statutes is amended by inserting the following
words after-"and which will affect the level and flow of navigable
water; and": in accordance with the policy considerations set forth
in section 1.14.
3. 31.14 of the statutes is repealed and re-enacted to read 31.14
(1) Declaration of policy
The available water resources within the state of Wisconsin are
such that the public welfare requires that water be conserved for
all present and future beneficial purposes; that the use of water
'for domestic purposes, industry, municipalities, recreation, irriga-
tion, navigation, and all other beneficial purposes is a matter of
public interest and public welfare. It is therefore provided that
the control of all water from rivers, streams, lakes, and under-
ground sources shall be in the state and may be diverted for bene-
ficial use as provided in this act and not otherwise.







WISCONSIN LAW REVIEW


(2) Definitions
When hereinafter used in this act, unless the context otherwise
requires,
(a) The term "water" or "waters" shall be deemed to refer
to any waters standing or flowing; in any natural water-
course, lake or pond on the surface of the ground, and to
all water percolating, standing or flowing under the surface
of the earth whether it be under pressure or otherwise.
(b) Theterm "diversion" or "diverted" shall mean the artificial
withdrawal of water from its immediate source by means
of ditches, pumps, wells, pits or other methods with the
intent of applying such water to immediate or future use
in such a manner that the water withdrawn does not readily
return to the source from which it is taken or that some of
it is consumed in the physical sense, thereby rendering
that which is returned changed in form or lessened in
volume.
(c) The phrase "domestic uses" or "domestic purposes" shall
refer to the use of water by an individual, or by a family
unit or household, for drinking, cooking, laundering, sanita-
tion, and other personal comforts and necessities, for the
irrigation of a family lawn or garden, which alone or in
combination do not exceed two acres in area, and for the
watering of farm animals. It shall not include water pur-
chased from a municipality for any use.
(d) The phrase "municipal use" shall refer to all water di-
verted by or for a municipality for its own use or for sale
to other users.
(e) The phrase "existing rights" shall mean a right to divert
water arising by virtue of a diversion and application of
water to a beneficial use prior to the passage of this act
in conformity with the then existing law and not abandoned
as hereinafter provided.
(f) The term "Commission shall mean the Public Service
Commission of Wiscosiii.
(g) The term "person" shall be interpreted to include any
natural person, partnership, firm, association, cooperative,
corporation (private or public), or state or federal agency.
(3) Exemptions
Diversions for domestic purposes and to satisfy existing rights


WVoL 1953







March] LEGAL CONTROL OF WATER RESOURCES 277

are exempt from the provisions of this act except as to the furnish-
ing to the Commission of required information reasonably per-
tinent to such use.
(4) Acquisition of rights to divert water
Every person shall, before diverting water or performing con-
struction work in connection with the diversion of water, make
application to the Commission for a permit to make a diversion.
Such application shall set forth the name and postoffice address of
the applicant; the source of water supply; the location of the pro-
posed point of diversion; the location and description of the pro-
posed pumping plant, ditch canal, reservoir or other works; the
proposed purpose of use of the water; the quantity of water pro-
posed to be diverted annually for direct use and/or the quantity
of water proposed to be diverted annually for storage; the period
of the year during which the water is to be diverted for direct use
and/or diverted for storage; the location of the land on which the
water is proposed to be used, and, if for irrigation, the area and
legal description of the land proposed to be irrigated and the kinds
of crops proposed to be cultivated under irrigation; the time
within which it is proposed to begin diversion or construction work
in connection with the diversion and in the case of construction
the time required for the completion thereof. Said application
shall be upon such form and shall be accompanied by such addi-
tional data as may be required by the Commission.
(5) Approval or rejection of application
(a) Upon receipt of an application to divert water, the Com-
mission shall make such investigation as may be necessary
and shall cause notice of the filing thereof to be published,
at the applicant's expense, in one issue of a newspaper of
general circulation in each county in which the available
water supplies will be substantially affected by the pro-
posed diversion and shall mail such notice to the State
Department of Agriculture, the Conservation Commission,
the State Board of Health, and the State Planning Board.
The notice shall fix a date not less than fifteen days nor
more than thirty days after the date of publication, aor
receipt, by which written protests against the approval of
the application may be filed with the Commission by any
interested person; such protest to state generally the grounds
therefore, and to be signed by and to give the postoffice
address of the person making the protest.







WISCONSIN LAW REVIEW


(b) If no protest is filed as provided in subsection (a) of this
section, the Commission shall proceed to approve or reject
the application. In the event that the Commission shall
reject the application in whole or in part, it shall within
ten days after date of such rejecting, notify the applicant
of its ruling; which notice shall be given by mailing a copy
of such ruling to the applicant by registered mail (return
receipt requested) directed to him at his last address as
shown by the records of the Commission. The applicant
may within thirty days after the receipt of such notice
file a petition with the Commission requesting a hearing.
Such hearing shall be granted and a date set therefore by
the Commission. Notice of the time and place of hearing
shall be given to the applicant and to the state agencies
named in subsection (a) of this section, by registered mail
(return receipt requested) at least ten days prior to such
hearing. In the event the Commission, on such hearing,
shall reject the application in whole or in part, it shall pre-
pare a written opinion setting forth such ruling and con-
taining specific findings of the grounds upon which the
application is rejected.
(c) If any protest is filed as provided in subsection (a) of this
section, the Commission shall set a time and place for
hearing all such protests and shall send a notice of the
hearing by registered mail (return receipt requested) to
the applicant, to each person who has filed a protest and
to the state agencies named in subsection (a) of this sec-
tion. After the conclusion of the hearing the Commission
shall approve or reject the application in whole or in part,
and shall prepare a written opinion setting forth such ruling
and containing specific findings of the grounds therefore.
(d) Proper applications contemplating beneficial use of water
shall be approved unless the proposed diversion will inter-
fere with domestic uses, existing rights, or prior rights of
diversion, or will, in the opinion of the Commission, be
likely to interfere with the highest beneficial use of water.
In arriving at this conclusion, the Commission shall seek
to conserve the use of water for all present and future needs
including domestic mue, municipal use, irrigation, water
power, fish life, recreation, navigation, industrial use or
other beneficial purposes.


[VoL 1953







March] LEGAL CONTROL OF WATER RESOURCES 279

(6) Permit to divert
In every instance where an application to divert water has been
approved in whole or in part by the Commission, pursuant to its
own decision or pursuant to a judicial review, the Commission
shall issue a permit for the effectuation of the diversion. The
permit shall be in duplicate and shall contain the information
required in the application as set forth in Section 4 of this statute
together with the date that the application was received by the
Commission. When the necessary construction for the diversion is
completed and/or when the use approved in the permit has been
commenced, the holder of the permit shall file an affidavit to this
effect together with the permit with the Commission and in the
office of the Register of Deeds of the County where the authorized
diversion of water and the use thereof are effected. The permit
and affidavit must be so filed within two years after the permit is
granted or the privileges thereunder lost; provided however that
the Commission may, for cause shown, extend the time for the
completion of the construction and/or the commencement of the
use. The permit so filed shall be deemed a right of diversion.
(7) Right of diversion
The right of diversion shall be limited as follows.
(a) It shall not be deemed to include the right to use more
water than is necessary for reasonable beneficial purposes,
nor shall it include the right to resort to unreasonable
methods of diversion.
(b) It may not be assigned or the nature of the use changed
unless the Commission consents thereto.
(c) Priority in time shall give the better right; priority shall
date from the filing of the application to divert water with
the Commission.
(d) It shall be subject to the power of the Commission to des-
ignate by appropriate units the maximum amount which
may be used in any season, and the power of the Com-
mission to restrict diversions for certain uses or from cer-
tain sources in any season.
(8) Abandonment
An existing right or a right of diversion acquired under the pro-
visions of this act shall cease upon abandonment. Failure for a
period of three successive years to effect a beneficial use of the

98




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