Legal Opinion

Green Bay & Mississippi Canal Co. v. Kaukauna Water Power Co.

Wisconsin Supreme Court

Decided June 20, 1895No. But it is urged upon this motion that the language of the opinion is only general and will not enable the trial court to determine and direct in what specific place, or in what pi-ecise manner, the water must be returned to the stream; nor how and where the respondent may lawfully use that relative proportion of the flow of the stream which is appurtenant to its bank, below the dam. Probably this is a just estimation of the opinion. It has assumed to determine only the general principle by which the relative rights of the parties are to be determined, and has pronounced that general principle in general terms only. It could well do no more. The court had no concrete question before it. Uo such issue was made, nor such judgment asked by the respondent’s pleading; lior was any such issue adjudgéd by the trial court. Uor does the record furnish data by which such questions can be determined by this court. These are practical questions which cannot be answered by the aid only of mere theory. Probably it cannot be satisfactorily predicted, in advance of experiment, just where and how the water must be returned to the stream so as to work no injury to lower owners. Certainly, it cannot be determined by a court without evidence of some kind. The court has performed its full function in this case when it has established the general rule which governs it. The judgment of the superior court of Milwaukee couuty is reversed, upon each of the three appeals, as to those parts of the judgment which were appealed from, and the cause is remanded with direction to enter judgment in accordance with the opinionPublishedCited by 13 opinions

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Appeals from a judgment of the superior court of Milwaukee county: R. hi. Austin, Judge. In 1846 Congress granted to the state of Wisconsin, when it should become a state, certain lands to be used in improving the navigation of the Fox and Wisconsin rivers. In 1848 the state accepted the grant, and placed the construction, maintenance, and operation of such improvement under control of a board of public works. Sec. 15 of the act (Laws of 1848, p. 61) provided: “ In the construction of such improvements, the said board shall have power to enter on, to take possession of and use all lands,…

1Opinion of the CourtNewmau, J.

It is settled by the decisions in Green Bay & M. Canal Co. v. Kaukauna W. P. Co. 70 Wis. 635, and Kaukauna W. P. Co. v. G. B. & M. Canal Co. 142 U. S. 254, that the respondent in these appeals, the Green Bay & Mississippi Oanal Company, is the legal owner of all the water power which has been created by the dam at the head of the rapids at Kaukauna beyond what is required for the purpose of navigation; and that it has all the right and ' title in that water power which the state acquired in it .under sec. 16 of the act of 1848 (Laws of 1848, p. 62); and that such title amounts to entire and…

2Cases cited8 opinions

Attorney General v. City of Eau ClaireWisconsin Supreme Court · 1875
Kaukauna Water Power Co. v. Green Bay & Mississippi Canal Co.Supreme Court of the United States · 1891
Cole v. La GrangeSupreme Court of the United States · 1885
City of Janesville v. CarpenterWisconsin Supreme Court · 1890
Delaplaine v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1877

3 more not listed; retrieve them via the Exa API.

3Cited by13 opinions

Colberg, Inc. v. State of California Ex Rel. Dept. Pub. Wks.California Supreme Court · 1967
Clark v. AllamanSupreme Court of Kansas · 1905
Bigelow v. DraperNorth Dakota Supreme Court · 1896
Doemel v. JantzWisconsin Supreme Court · 1923
Patten Paper Co. v. Green Bay & Mississippi Canal Co.Wisconsin Supreme Court · 1896

8 more not listed; retrieve them via the Exa API.

Court: Wisconsin Supreme Court
Decided: June 20, 1895
Docket: No. But it is urged upon this motion that the language of the opinion is only general and will not enable the trial court to determine and direct in what specific place, or in what pi-ecise manner, the water must be returned to the stream; nor how and where the respondent may lawfully use that relative proportion of the flow of the stream which is appurtenant to its bank, below the dam. Probably this is a just estimation of the opinion. It has assumed to determine only the general principle by which the relative rights of the parties are to be determined, and has pronounced that general principle in general terms only. It could well do no more. The court had no concrete question before it. Uo such issue was made, nor such judgment asked by the respondent’s pleading; lior was any such issue adjudgéd by the trial court. Uor does the record furnish data by which such questions can be determined by this court. These are practical questions which cannot be answered by the aid only of mere theory. Probably it cannot be satisfactorily predicted, in advance of experiment, just where and how the water must be returned to the stream so as to work no injury to lower owners. Certainly, it cannot be determined by a court without evidence of some kind. The court has performed its full function in this case when it has established the general rule which governs it. The judgment of the superior court of Milwaukee couuty is reversed, upon each of the three appeals, as to those parts of the judgment which were appealed from, and the cause is remanded with direction to enter judgment in accordance with the opinion
Parties: Green Bay & Mississippi Canal Co.v.Kaukauna Water Power Co.
Author: Newmau, J.
Panel: Newmast, Newmau
Disposition: By the Court.— The motion for a rehearing is denied
Status: Published
Cited by: 13 opinions
Cites: 8 opinions