238 NORTH WESTERN REPORTER, 2d SERIES
71 Wis.2d 370
Ray OMERNICK and Victoria
DEPARTMENT OF NATURAL RE-
SOURCES, an Agency of the State of
Wisconsin, et al., Respondents.
No. 161 (1974).
Supreme Court of Wisconsin.
Submitted Oct. 30, 1975.
Decided Feb. 10, 1976.
Riparian landowners, who sought to ir-
rigate their land with waters from adjacent
streams, brought action seeking, among
other things, declaration that statute re-
quiring a permit to divert waters from a
stream or lake violated procedural due proc-
ess. The Circuit Court, Dane County, W. L.
Jackman, Circuit Judge, sustained defend-
ants' demurrer, and plaintiffs appealed.
The Supreme Court, Connor T. Hansen, J.,
held that plaintiffs did not fail to exhaust
administrative remedies by failing to apply
for permit since question at issue could not
have been litigated before Department of
Natural Resources, that Supreme Court
could declare the rights of the parties, that
the statute at issue abrogated the common-
law riparian right of irrigation and that
statute was not unconstitutional by failing
to provide a hearing to adjudicate the right
Modified and affirmed.
1. Waters and Water Courses e=44
At common law, each riparian owner
has the right, subject to the reasonable use
doctrine, to use water from a natural
waterway for purpose of irrigating his
lands; reasonableness of the use depends on
the volume of water in the stream, seasons
and climatic conditions and the needs of
other riparian proprietors as well as the
needs of the irrigator.
2. Waters and Water Courses =>78
Statute requiring permit to divert
water from a stream or lake abrogated
common-law riparian right of irrigation;
such statute has resulted in introducing an
element of prior use in Wisconsin water
law, which element was not present at com-
mon law. W.S.A. 30.18.
3. Waters and Water Courses =-78
Owners of riparian land were required
to secure permits for diverting waters from
adjacent creeks and rivers for purpose of
irrigating their potato growing lands.
4. Waters and Water Courses C=78z/2
Statute requiring a permit to divert
water from a stream or lake was not uncon-
stitutional in failing to provide a hearing to
adjudicate the riparian right of irrigation.
5. Declaratory Judgment e3 124
Action seeking declaration that statu-
tory requirement that riparian owners ob-
tain a permit before diverting waters from
a stream or lake deprived such owners of
their right to irrigate without due process
was not premature, on ground that riparian
owners had failed to exhaust their adminis-
trative remedies by applying for permit,
since question involved could not be litigat-
ed before the Department of Natural Re-
sources. W.S.A. 30.18.
6. Declaratory Judgment s=395
Where the parties are entitled to de-
claratory relief and the trial court errone-
ously enters judgment dismissing the ac-
tion, the judgment will be modified in the
Supreme Court so as to declare the rights of
the parties; although trial court's decree
was in nature of order sustaining demurrer
to complaint, it was appropriate for the
Supreme Court to declare the rights of the
Declaratory judgment. The order ap-
pealed from sustained a demurrer to the
complaint. The complaint alleged that the
OMERNICK v. DEPT. OF
Cite as 238 N
plaintiffs were riparian owners of lands
bordering Klondike Creek, Holt Creek, and
the Little Wolf River, and were engaged in
growing potatoes on those lands. They pro-
posed to irrigate their lands with water
from the streams. However, the defend-
ants prevented the diversion of water for
this purpose by enforcing sec. 30.18 of the
Statutes, which requires a permit before
any water can be diverted. It was further
alleged that the defendants had designated
Holt Creek and the Little Wolf River as
trout streams, thereby making the provi-
sions of sec. 30.18(5) applicable. Under this
statute a permit cannot be granted to di-
vert water, even though surplus, from
streams without the prior written approval
of the Department of Natural Resources.
Plaintiffs alleged that their land could not
be utilized for potato growing without irri-
gation from the streams in question. It
was alleged that the streams had been des-
ignated as trout streams without an oppor-
tunity for the plaintiffs to be heard, and
that sec. 30.18 violated procedural due proc-
ess because it provided no means by which
the rights of riparian owners could be de-
termined and yet granted to each riparian
owner who was beneficially using the
waters of the streams a veto over the
granting of the irrigation permit without
any showing of injury. Other allegations
were made in the complaint, but the issues
raised by those allegations have been dis-
posed of in Omernick v. State (1974), 64
Wis.2d 6, 218 N.W.2d 734.
Brief by: Ted B. Johnson and Thomas J.
Bergen, Milwaukee, for appellants.
Brief by: Robert W. Warren, Atty. Gen.,
Robert B. McConnell, Asst. Atty. Gen., for
CONNOR T. HANSEN, Justice.
The essence of the trial court's decision
on demurrer was that the plaintiffs had not
exhausted their administrative remedies by
applying for a permit under sec. 30.18,
Stats. The trial court also ruled.that sec.
30.18 limited the common law right of irri-
NATURAL RESOURCES Wis. 115
gation by a riparian owner. It held that
the notice and hearing provisions under the
statutes satisfied procedural due process.
Inasmuch as the plaintiffs did not utilize
the hearing procedure, the court ruled a
justiciable controversy was not presented.
On appeal, plaintiffs have raised two argu-
ments. First, the designation of Holt Creek
and Little Wolf River as trout streams was
done without notice and hearing, and sec.
30.18 violates due process in not requiring a
hearing before such a designation can be
made. Second, that sec. 30.18 denies due
process in that the department is bound to
recognize the rights of riparian owners but
is without the power to adjudicate the na-
ture and extent of those rights in the per-
mit hearing procedure.
NOTICE AND HEARING BEFORE A
DESIGNATION AS A TROUT STREAM
The only effect of designation as a trout
stream is to require the written approval of
the department before an otherwise manda-
tory permit can be granted to divert surplus
waters. Sec. 30.18(5), Stats. There is no
allegation in the complaint that the waters
to be diverted are surplus waters. There-
fore, the question of whether designation as
a trout stream requires prior notice and
hearing is not before us.
ARE PLAINTIFFS DEPRIVED OF
THEIR RIPARIAN RIGHT TO IRRI-
GATE WITHOUT DUE PROCESS OF
LAW BECAUSE OF THE DEPART-
MENT'S LIMITED POWER OF ADJU-
[1-3] This aspect of the case arises be-
cause of the opinion of this court in the
Nekoosa-Edwards Paper Co. v. Public Serv-
ice Com'n (1959), 8 Wis.2d 582, 99 N.W.2d
821. In that case, the state agency with
jurisdiction under the predecessor of sec.
30.18, Stats., had granted a permit to divert
nonsurplus water from Buena Vista Creek.
Nekoosa-Edwards Paper Company was a
riparian owner and did not consent to the
diversion. This court held the agency had
no power to authorize the diversion without
the consent of all the riparian owners, con-
238 NORTH WESTERN REPORTER, 2d SERIES
eluding that the agency did not have juris-
diction to determine and regulate the com-
mon law rights of all riparian owners to the
use of nonsurplus water in the stream.
At common law, each riparian owner had
the right, subject to the reasonable use doc-
trine, to use water from a natural water-
way for the purpose of irrigating his lands.
The reasonableness of the use depended
upon the volume of water in the stream,
seasons and climatic conditions and the
needs of other riparian proprietors as well
as the needs of the irrigator. 94 C.J.S.
Waters sec. 314, p. 252. See also Apfel-
bacher v. State (1918), 167 Wis. 233, 167
N.W. 244. Because the department does
not have the power to grant a permit over
the objection of other riparian proprietors,
the plaintiffs in this case have no means of
securing a permit for the irrigation they
contemplate when objection is made. Thus,
they have no means of enforcing a common
law riparian right of irrigation. This is
because irrigation is prohibited without a
permit. Sec. 30.18(3), Stats.; Omernik v.
State (1974), 64 Wis.2d 6, 218 N.W.2d 734.
In Omernik v. State, supra, we deter-
mined that sec. 30.18, Stats., did not consti-
tute the taking of property without just
compensation. We held the statute was a
valid exercise of the police power, stating:
"Given the public interest in prevent-
ing the uncontrolled diversion and con-
sumption of stream waters, we do not
find any balancing merit to defendant's
contention that he may do as he wishes,
not only with his property but with the
water of the stream that flows through
The necessary implication of this holding
is that the legislature in the exercise of its
police power has abrogated the common law
riparian right of irrigation and has substi-
tuted the permit procedure under sc. 30.18,
Stats. This has the result of introducing an
element of prior use in the Wisconsin water
law which was not there at the common
law. The wisdom of this policy may be
debatable, but it is a legislative not a judi-
DID THE PLAINTIFFS FAIL TO EX-
HAUST THEIR ADMINISTRATIVE
[5, 6] The question in this case could not
be litigated before the Department of Nat-
ural Resources. Therefore, the action for
declaratory judgment was not prematurely
brought, and it was not proper to dismiss
the complaint. A judgment should have
been entered declaring that the plaintiffs
had no right of irrigation as riparian propri-
etors and that sec. 30.18, Stats., was not
unconstitutional in failing to provide a
hearing to adjudicate that right. Where
the parties are entitled to declaratory relief,
and the trial court erroneously enters judg-
ment dismissing the action, the judgment
will be modified in this court so as to de-
clare the rights of the parties. Denning v.
City of Green Bay (1955), 271 Wis. 230, 72
N.W.2d 730. Although the decree of the
trial court in this case is an order, not a
judgment, we think it appropriate to dis-
pose of this case in the same way.
The order is modified to provide that it
has the effect of a judgment declaring that
the plaintiffs have no right of irrigation as
riparian proprietors and sec. 30.18, Stats., is
not unconstitutional in failing to provide a
hearing to adjudicate the right of irriga-
tion. As modified, the order is affirmed.
SKEY NUMBER SYSTEM
71 Wis.2d 382
Julie A. SEVERSON, Respondent,
David L. SEVERSON, Appellant.
No. 538 (1974).
Supreme Court of Wisconsin.
Submitted Dec. 2, 1975.
Decided Feb. 10, 1976.
Divorced wife moved for increase in
child support payments. The County Court,
Ir ~ sl l ~ I~~Ct