Title: City of Fond Du Lac v. Town of Empire - Supreme Court of Wisconsin, June 22, 1956, Rehearing Denied Sept. 11, 1956
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 Material Information
Title: City of Fond Du Lac v. Town of Empire - Supreme Court of Wisconsin, June 22, 1956, Rehearing Denied Sept. 11, 1956
Physical Description: Book
Language: English
Publisher: 77 North Western Reporter, 2d Series
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - City of Fond Du Lac v. Town of Empire - Supreme Court of Wisconsin, June 22, 1956, Rehearing Denied Sept. 11, 1956 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 34
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004471
Volume ID: VID00001
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CITY OF FOND DU LAO v. TOWN OF EMPIRE
Cite as 77 N.W.2d 699


273 Wis. 333
CITY OF FOND DU LAC, a Municipal
Corporation, Respondent,
V.
TOWN OF EMPIRE, a Political Subdivision
of Fond du Lac County, et al.,
Appellants.

Supreme Court of Wisconsin.
June 22, 1956.
Rehearing Denied Sept. 11, 1956.
Action for declaratory judgment as to
the validity of a town ordinance prohibiting
the drilling of a water well in the town with
the casing in excess of six inches in diame-
ter except by permission of the town board
upon a showing that the well will not ad-
versely affect the availability of water for
private wells in the town. Judgment for the
plaintiffs in the Circuit Court for Fond du
Lac County, Russell E. Hansen, J., and the
defendants appealed. The Supreme Court,
Broadfoot, J., held that the ordinance was
invalid.
Order affirmed.


I. Municipal Corporations <.57
Power of villages are derived solely
from the state through the Legislature, ex-
cept where the people of the state by a
constitutional home-rule provision vest the
village with some degree of local sover-
eignty.

2. Municipal Corporations 0-589
Under the statute, villages have been
vested with very broad, if not full, police
powers in local affairs. St.1953, 61.34.
3. Constitutional Law e=63(2)
Municipal Corporations -65
The home rule amendment was a direct
grant of power to cities and villages but it
did not give to the legislature any additional
power to delegate legislative authority to
cities or villages in matters primarily of
state-wide concern. Const. art. 11, 3.

4. Constitutional Law 8=70(3)
Matters of public policy are primarily
for the legislature and a determination by it


that a certain matter is of state-wide con-
cern is entitled to great weight.

5. Waters and Water Courses =e101
The water supply of the state is a mat-
ter of state-wide concern so that a legisla-
tive determination thereof that the water
supply is of state-wide concern is entitled
to great weight St.1953, 144.03.

6. Municipal Corporations e=592(1)
Where a matter affects the interest of
local residents as well as the interests of
people in other areas, test to be applied in
resolving the matter is that of paramount
interest and the interest of the people gen-
erally is paramount to that of the residents
of a particular village.

7. Municipal Corporations =592(1)
Ordinance of the town of Empire pro-
hibiting the drilling of a water well with a
casing in excess of six inches in diameter
except by permission upon a showing that
such well will not adversely affect avail-
ability of water for private wells in the town
is invalid in view of the enactment of the
statute indicating that the use of subter-
ranean waters of the state is a matter of
state-wide concern and that the effect of
the ordinance was to deprive the city of
Fond du Lac purchasing a tract within the
town, of right to drive wells to replenish its
water supply. St.1953, 60.18(12), 144.03.

8. Municipal Corporations <592(I)
Village ordinances under the police
power must be consistent and not in conflict
with the law of the state. St.1953, 61.01
et seq.; Const. art. 11, 3.

9. Municipal Corporations e592(1)
Ordinance of the town of Empire pro-
hibiting drilling of a water well in the town
with the casing in excess of six inches in
diameter except by permission of the town
board upon a showing that the well will
not adversely affect the availability of
water for private wells in the town is in-
valid as conflicting with the general laws
of the state. St.1953, 66.066(la), 144.03.


Wis. 699







77 NORTH WESTERN REPORTER,, 2d SERIES


. The action was commenced by the city
of Fond du Lac against the town of Em-
pire and the individual members of the
town board of said town seeking a declara-
tory judgment as to the validity of certain
town ordinances. The complaint alleges
that the city operates a municipal water
utility; that its water supply is from wells
located within the city but that its water
supply because of an increase in popula-
tion and in the use of water, is inadequate
for present purposes and that a water short-
age will result as the population grows and
water uses increase; that surveys were
made to locate an additional source of
water and that an underground water basin
was located -under lands located in the
towns of Empire, Taycheedah and Forest,
in Fond du Lac county; that the city has
purchased a tract of approximately four
acres in the town of Empire and has se-
cured options to purchase approximately
1,100 additional acres of land, most of
which are in said town of Empire; that it
is drilling a test well upon the four-acre
tract and plans to drill additional wells on
the lands which it plans to acquire, said
wells to be approximately 12 inches in
diameter; that there is no other adequate,
feasible and proper source of water avail-
able to the city; that the town board of
the town of Empire has .the powers of
village boards as provided in sec. 60.18(12),
Stats.: The town board of the town of
Empire enacted three ordinances, the va-
lidity of which is attacked. The first ordi-
nance is entitled: "An Ordinance prohibit-
ing the drilling of a well in the town of
Empire with a casing in excess of 6" in
diameter, except byk permission of the town
board'upon a showing that such well will
not adversely affect or reduce the avail-
ability of water for private wells in the
town of Empire." The title of the second
ordinance is as follows: "Ax Ordinance
prohibiting the commercial sale or use of
water from wells in the town of Empire
other than on the premises in the town of
Empire from which the water is removed,
except by permission of the town board
upon a showing that such use and sale will


not adversely affect or reduce the avail-
ability of water for "private wells in the
town of Empire." Those titles sufficiently
describe the contents of the ordinances.
The third ordinance complained of is desig-
nated as an interim zoning ordinance and
by the terms thereof certain specified uses
of property are prohibited, among which
are commercial wells. Said ordinance fur-
ther provides that where water is to be
transported from the township, wells may
be constructed only in case the town board
shall have made findings similar to those
stated in the other ordinances and the pro-
prietor of the well gives adequate security
against damage' to users of well water in
the town by the posting of a bond or con-
tract. The city further alleges, upon in-
formation and belief, that the construction
of such wells may possibly affect to some
degree the level of water available in wells
of land owners in the vicinity. Further,
upon information and belief, that under
said ordinances permission to operate and
construct the proposed wells cannot be ob-
tained from the defendant town board for
the reason that such wells must of necessity
be larger in diameter than six inches and
for the further reason that the construction
thereof may adversely affect the availability
of water to a number of private users of
well water in said town of Empire.

The defendants demurred to the com-
plaint. On May 3, 1956, an order was en-
tered overruling the demurrer and the de-
fendants appeal. On: motion duly made
and because of the importance of the ques-
tion involved, the case was advanced to
the June, 1956, assignment.

St. Peter & Hauer, Fond du Lac, for ap-
pellants.

Frederick K. Foster, Corp. Counsel, Wor-
thing & Calhoun, Sp. Counsel, Fond du Lac,
for respondent.

Willink & Thompson, Madison, amicus
curiae.

Roy W. Thiel, Fond' du Lac, for Town
of Taycheedah, amicus curiae.


_r __


700 WiJ.







CITY OF FOND DU-LAC v. TOWN OF EMPIRE
Cite as 77 N.W.2d 699


BROADFOOT, Justice.
The defendants vigorously contend that
they had ample authority to enact the
three ordinances. It is conceded that the
town board has been granted the powers
of a village board.

[1,2] The powers of villages are de-
rived solely from the state through the
legislature,'except where the people of'the
state by a 'constitutional home-rule pro'
vision vest the village with some degree of
local sovereignty. The legislature of Wis-
consin has never been hostile to granting
a large measure of local self government
to villages and cities. Some attempts to
do so by the legislature have been held to
be unlawful delegations of legislative au-
thority. Accordingly, in 1924 a home-rule
amendment to the constitution, art. XI,
was enacted, which reads as follows:
"Cities and villages organized pur-
suant to state law are hereby em-
powered, to determine their local
affairs arid government, subject only
to this constitution and to such enact-
ments of, the legislature of state wide
concern as shall with uniformity affect
every city or every village. The meth-
od of such determination shall be pre-
scribed by the legislature." (emphasis
supplied).Section 3.'
Thereafter enabling legislation was en-
acted by the legislature. Now, under the
provisions of sec. 61.34, Stats.. villages have
been, vested, with very broad, if not full
police powers -in local affairs. In: Van
Gilder v. City of Madison, 222 Wis. 58,
at page 83, 267 N.W. 25, 35, 268 N.W. 108,
105 A.L.R. 244, this subject was thoroughly
reviewed. In that case the court said:
"The power granted cities and vil-
lages by the home-rule amendment is'
the power to determine their local
affairs and government. The amend-
ment confers upon cities and villages
no power to deal by way of charter or-
dinance with matters which are pri-
marily of state-wide concern. **"

[3] The home-rule 'amendment was a
direct grant of power to cities and villages


but it did not give to the legislature any
additional power to delegate legislative
authority to cities or villages in matters
primarily of state-wide concern. Thus, the
case of Muench v. Public Service Commis-
sion, 261 Wis. 492, 53 N.W.2d 514, 55 N.W.
2d 40, is in point. Although in that case
We were concerned with the power of the
legislature to delegate legislative authority
to county boards, the principle is the same.

[4,5] In the Van Gilder case, supra, it
was pointed out that no attempt had been
made to define what are local affairs and
what are matters of state-wide concern,
nor does the home-rule amendment lodge
the power in the legislature to define said
terms. However, matters of public policy
are primarily for the legislature and a de-
termination by it that a certain matter is
of state-wide concern is entitled to great
weight. By enacting sec. 144.03, Stats., the
legislature has indicated that the use of
subterranean waters of the state is a matter
of state-wide concern, although it has done
very little to regulate the use thereof.
This state has always been blessed with a
large supply of water, both surface and
subterranean. Until recently its water sup-
ply has been abundant. However, in recent
years, because of the growth of population
and a concentration thereof and because of
the increased use of water from subter-
ranean sources on farms, by industries, and
in homes, qur supplies thereof have begun
to cause concern. The legislature has fur-
ther shown its interest in the matter by
appropriating money for a study of the
subject by a ground water working group
of the Natural Resources Committee of
State Agencies. Other studies are being
made by the U. S. Geological Survey and
the university of Wisconsin. Presumably,
when the- legislature receives what it con-
siders to be sufficient information it will
enact laws that will permit some state
agency to regulate the use of subterranean
and other waters. We have no hesitancy
in saying that the watei supply of the state
is a matter of state-wide concern.
[6,7] In a companion case, Menne v.
City of Fond du Lac, 77 N.W.2d 699, the
complaint alleges that the water basin


Wis. 701







702 Wis. 77 NORTH WESTERN REPORTER, 2d SERIES


which the city intends to tap extends not
only under the town of Empire, but also
under the towns of Taycheedah and Forest.
We can readily concede that the tapping of
this water basin by the city is a matter of
local concern to the towns that will be
affected thereby, and to the residents there-
of. However, as was stated in the Muench
case, supra, where a matter affects the in-
terests of local residents as well as the in-
terests of the people in other areas of the
state, the test to be applied in resolving
the matter is that of paramount interest,
and we deem that the interest of the people
generally is paramount to that of the resi-
dents of the town of .Empire. Therefore,
we can find no authority, either under the
home-rule amendment or under ch. 61,
Stats., that would authorize the town of
Empire to adopt the ordinances under at-
tack. They are therefore declared to be
invalid.

[8] Further, in the case of Voss v.
Lenerz, 256 Wis. 183, 40 N.W.2d 519, it was
held that village ordinances under the police
power must be consistent and not in con-
flict with the law of the state. As of the
date of the commencement of the action,
the law of the state with reference to sub-
terranean, percolating waters is controlled
by the case of Huber v. Merkel, 117 Wis.
355, 357, 94 N.W. 354, 357, 62 L.R.A. 589.
In that case the court was considering the
validity of ch. 354, Laws of 1901, which
read as follows:

"'Where there are two or more
artesian wells in any vicinity or neigh-
borhood, one or more of which are
operated or used by any person or
owner, the person or owner of such
well shall use due care and diligence
to prevent any loss or waste or unrea-
sonable use of any water therein con-
tained or flowing from the same, as
would deprive or necessarily diminish
the flow of water in any artesian well,
to the injury of the owner of any
other well in the same vicinity or
neighborhood.' *
"'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 action was brought to restrain the
defendant from wasting or unreasonably
using the water from two artesian wells
upon defendant's land, on the ground that
such use interfered with the flow of water
from plaintiff's artesian well situated on
his land. In the town of Germantown.
Washington county, there was an area
about two and one-half miles in width by
five miles in length within which there
were about 30 artesian wells. The plain-
tiff's farm was located on higher ground
than that of the defendant. Apparently
all of the well owners except the defend-
ant had caps or plugs on their wells to
check the flow of water when the well
was not in use. The defendant refused to
cap his wells and as a result thereof the
water in plaintiff's well would not rise
above the surface but could only be raised
by means of a pump. The trial court
found that the defendant maliciously al-
lowed his wells to flow to their full ca-
pacity; that he used some of the water
from his wells to supply a fish pond on his
land; that he sold some, and intentionally
and maliciously wasted the remainder by
allowing it to flow and soak into the ground.
The trial court granted the injunction and
awarded the plaintiff nominal damages.
Upon appeal to this court the judgment of
the trial court was reversed. The court
held that an owner of land had a right to
sink wells thereon and to use the water
from them, if the supply was percolating
water, in any way he chose, or to allow it
to flow away, even though he would be
diminishing the water in his neighbors
wells, and even though in so doing he was
actuated by malicious motives. The court
further held that such right of a land owner
is a property right which cannot be taken
away or impaired by legislation unless b
the exercise of the richt of eminent doman








MENNE v. CITY OF FOND DU LAO
Cite as 77 N.W.2d 703


or by proper exercise of the police power.
The court held that the legislation in ques-
tion was in no sense a condemnation law
nor could it be sustained as a proper exer-
cise of the police power, because it did not
pretend to serve any public interest but
was for the purpose of promoting the wel-
fare of one citizen by preventing his neigh-
bor from using his own property. So much
of the decision in the Huber case as is ap-
plicable to the facts 'before us is controlling,
and is the general law of the state.

[9] In addition to sec. 144.03, Stats., our
attention has been called to only one other
section dealing with the subject of water
supply, sec. 66.066(la), Stats., which au-
thorizes municipalities to acquire, own, and
operate a source of water supply and neces-
sary transmission facilities beyond its cor-
porate limits. The ordinances of the town
of Empire conflict with these general laws
of the state, and that is a second reason
for holding that they are invalid.

Order affirmed.








273 Wis. 341
Joseph J. MENNE et al., Appellants,
v.
CITY OF FOND DU LAC, a Municipal
Corporation, Respondent.

Supreme Court of Wisconsin.
June 22, 1956.

Rehearing Denied Sept. 11, 1950.
Action for an injunction by town resi-
dents seeking an injunction against a city
from constructing a well and removing or
withdrawing water from.the town for com-
mercial sale to noncontiguous territory and
for additional release in the alternative.
From a judgment for the respondent in
the Circuit Court for Fond du Lac County,
Russell E. Hansen, J., the plaintiff appealed.


The Supreme Court, Broadfoot, J., held
that injunction should not issue under the
circumstances.
Order affirmed.
Fairchild C. J., and Currie, J., dis-
sented.


1. Common Law =3, 7, 8
The common law in effect at the time
of the adoption of the state constitution is
not confined to English statutes and the
decisions of the English courts and is per-
haps broad enough to embrace customs and
usages and legal maxims and principles in
vogue at the time.

2. Courts C=93(1)
Under the rule of "stare decisis" where
property rights are involved, the courts are
reluctant to engage in judicial legislation
and if there is to be a change, it should
come by action of the legislature.
See publication Words and Phrases,
for other judicial constructions and defi-
nitions of "Stare Decisis".

3. Waters and Water Courses In action by township residents to en-
join a city from constructing a well and re-
moving or withdrawing water from the
town for commercial sales to noncontiguous
territory where the results of the proposal
of the city to withdraw water from the un-
derground basin were unknown, an injunc-
tion should not be granted under the cir-
cumstances. Const. art. 14, 13.


This action was commenced by three in-
dividuals on behalf of themselves and all
other residents, taxpayers, owners of real
property, and users of water in the town-
ships of Empire, Taycheedah, and Forest,
in Fond du Lac county. Plaintiffs seek an
injunction enjoining the city of Fond du
Lac from constructing a well and removing
or withdrawing water from the towns of
Empire and Taycheedah for commercial
sale to non-contiguous territory. In the
alternative, plaintiffs seek an injunction
restraining the city from removing: water


Wis. 703




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