In re Dancy Drainage District
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Opinion of the Court
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Gassoday, O. J.
1. The appealability of the portion of the order in question is not challenged nor mentioned in the briefs of counsel. It was suggested on the argument, but counsel for the respondents requested a decision upon the merits. Such suggestion was in consequence of the discussion in another case decided herewith. In re Horicon Drainage Dist., ante, p. 42, 108 N. W. 198 . That was an appeal from an order appointing commissioners under sec. 1379—13, Stats. 1898, as amended by sec. 1, ch. 43, Laws of 1901, and it was held that the order was not appealable. In writing the opinion of the court in that case, my brother Keewin has given a synopsis of several sections of the statutes for organizing drainage districts, as amended, and pointed out that the only authority therein given to appeal to this court is found in sec. 1379—18, Stats. 1898, as amended by sec. 2, ch. 43, Laws of 1901. That section relates to the action of the court on the report of the commissioners, and gives the court authority to require a modification of the same and to determine all controversies in the matter, and then, among other things, declares:
“If the finding be against the validity of the proceedings the same shall be dismissed at the cost of the petitioners. If the finding be in favor of the validity of the proceedings, the *137 court, after the report shall have been modified to conform to the findings, or if there be no remonstrance, shall confirm- the same, and the order of confirmation shall be final and conclusive, the proposed work shall be established and authorized and the proposed assessments approved, subject to the right of appeal to the supreme court.”
The court not only refused to confirm the report, but found against the validity of the proceedings, so far as they purported to “destroy and wipe out of existence the body of water shown and designated on the map as Rice Lake,” and in so far as the “proposed drainage system” would “impair the navigability of the Little Eau Pleine river.” The “drainage system” reported by the commissioners included the destruction of Rice Lake and its navigability, and also the impairment of the navigability of the river running through the same. Such “drainage system” is expressly condemned by the findings of the court, and it is also expressly found that “such proposed drainage system cannot be made effective so as to accomplish the object sought and cannot be confirmed by the court.” The statutes seem to contemplate that the findings of the court and the order made thereon shall be final and conclusive, “subject to the right of appeal to”- this court. True, the court refused to dismiss the proceedings, on the express ground that “it was not shown with reasonable certainty that there is no other way of effecting this drainage in some manner not interfering with the rights of navigation and commerce on the Eau Pleine, river and Rice Lake.” But such “other way” would necessarily be a system of drainage not contemplated in the report of the commissioners. The order of the court is final and conclusive as to the drainage system so reported. It is “a final order affecting a substantial right made in special proceedings.” Subd. 2, sec. 3069, Stats. 1898. Such an order, “within the meaning of this statute, is one which determines and disposes finally of the proceeding— one which, so long as it stands, precludes any further steps therein.” Kingston v. Kingston, 124 Wis. 263, 264 , 102 *138*138 N. W. 577 See, also, Bryant v. Robbins, 70 Wis. 258 , 35 N. W. 545 ; S. C. 74 Wis. 608 , 43 N. W. 507 ; In re Theresa Drainage Dist. 90 Wis. 301 , 63 N. W. 288 ; Stone v. Little Yellow Drainage Dist. 118 Wis. 388 , 95 N. W. 405 . We must Fold that the order is appealable.
2. The important question presented is whether the trial court was justified in holding that the commissioners, by the “drainage system” so reported, had no power to “destroy and wipe out of existence the body of water shown and designated on the map as Rice Lake,” nor to “impair the navigability of the Little Eau Pleine river,” and that it was “beyond the power of the court to grant to” such commissioners any such-power. Certainly, the statutes providing for the “organization and powers of drainage districts” do not in terms give any such power. Secs. 1379 — 11 to 1379 — 31, Stats. 1898,. as amended. The broadest power given to the commissioners by these sections is to “do any and all necessary acts in and about the surveying, laying out, constructing, repairing, altering, enlarging, cleaning, protecting and maintaining any drain, ditch, levee or other work for which they shall have been appointed, including all necessary bridges, crossings, embankments, protections, dams and lateral drains, clearing out and removing obstructions from natural or artificial channels or streams within or beyond the limits of the drainage district, procuring, purchasing or condemning, under proceedings similar to the proceedings had on the award of damages-hereunder, riparian rights, rights of fldwage and water powers, and may use any moneys in their hands arising from assessments for that purpose.” Sec. 1379 — 22, Stats. 1898. One of these sections declares that the provisions of the preceding “sections shall be liberally construed to promote the public health or welfare by reclaiming wet and overflowed lands, building embankments or levees and the preservation of any system of drainage . . . constructed according to law.” Sec. 1379- — 31, Stats. 1898. But there is no mention nor refer *139 ence in any of those sections to the destruction of any lake or river, nor to the impairment of the navigation of any lake or river — much less a meandered lake or river. As indicated in numerous adjudications of this court, some of which are cited by counsel for the petitioners, the legislature, in aid of navigation, has power to authorize the deepening and widening of channels, the building of flooding dams, and other-structures. Falls Mfg. Co. v. Oconto River Imp. Co. 87 Wis. 134, 150, 151, 58 N. W. 257 , and cases there cited. To authorize structures in aid of navigation is a very different thing than to authorize the destruction of a navigable lake or to impair the navigability of a river. As indicated, the sections of the statutes cited do not in terms authorize such destruction or impairment. On the contrary, another section of the statutes expressly declares:
“All lakes wholly or partly within this state which have-been meandered and returned as navigable by the surveyors, employed by the government of the United States or which have been so meandered and are navigable in fact are hereby declared to be navigable and public waters, and all persons, shall have the right to pass to and fro, be and remain thereon and have and enjoy all other rights and privileges thereon and thereto to the same extent and with the like effect as in, to,, over and upon any other navigable or public waters.” Sec. 1607a, Stats. 1898.
It is undisputed that Rice Lake is a meandered body of water and navigable in fact, and it is also undisputed that the-Little Eau Pleine river is a navigable stream, which has been used for driving and rafting logs for many years, and that the-lake is an enlargement of tlie river, and that in and upon both the river and the lake fish and game abound. This court has repeatedly held that the title to the bed of a meandered lake-navigable in fact “is in the state in trust for legitimate public uses, such as fishing, navigation, and the like;” and that “the-state cannot convey it away for private uses, nor can it abdicate the trust.” Att’y Gen. ex rel. Askew v. Smith, 109 Wis. *140 532, 539 , 85 N. W. 512 , and cases there cited. In one of the cases cited it was held, on the last appeal to this court:
“It is the duty of the legislature to preserve for the benefit of all the people of the state, forever, the enjoyment of the navigable waters within its boundaries. The navigable waters of the state belong to the state, and the lands under them, in all situations, so far as it is necessary to preserve inviolate the common right to enjoy those incidents which are not the subject of private ownership in navigable waters at common law.” Priewe v. Wis. State L. & I. Co. 93 Wis. 534 , 67 N. W. 918 ; S. C. 103 Wis. 537, 549, 550 , 79 N. W. 780 . See, also, Rossmiller v. State, 114 Wis. 169, 186, 187 , 89 N. W. 839 .
The statutes and adjudications cited certainly justified the trial court in refusing to confirm the report of the commissioners. Counsel claim that the respondents have no such special interest in the lake or river as to authorize them to make the objection. They are certainly parties, and necessary parties, to the proceedings. The petitioners and commissioners have the affirmative and are seeking to invade the rights intrusted to the state. The respondents have as much right to object as they have to proceed. This court has held:
“An attempt by any person or corporation to violate public rights in the navigable waters of the state, to the special injury of a particular person, may be restrained by a private action.” Priewe v. Wis. State L. & I. Co. 103 Wis. 537 , 79 N. W. 780 .
So it has held :
“A wrongful invasion of the right to use land for fishing and hunting is actionable, regardless of the amount of the damages caused by such invasion. . Every wrongful intrusion by one person upon the legal rights of another is both an injury and a damage and is a proper subject for legal redress.” Diana S. Club v. Lamoreux, 114 Wis. 44, 45 , 89 N. W. 880 .
We find no error in the record of which the appellants can rightfully complain.
By the Court. — The portion of the order of the circuit court •appealed from is affirmed.
Dissent
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Dodge, J.
(dissenting). I am constrained to dissent from the judgment of affirmance in this proceeding, because it is obvious that this court has no jurisdiction by appeal to review the order entered,in the court below. The right of appeal essential to give us jurisdiction in such matters is purely statutory. Maxon v. Gates, 118 Wis. 238 , 95 N. W. 92 . The only appeal authorized is, generally, in special proceedings, by subd. 2, sec. 3069, Stats. 1898, from “a final order affecting a substantial right made in special proceedings.” I have-no doubt whatever that upon the coming in of the commissioners’ report in a drainage proceeding, under sec. 1379 — 11 to sec. 1379—18, Stats. 1898, if an order is made either confirming the report and establishing the drainage district or dismissing the proceeding, such order is final and affects a substantial right. In the language of Kingston v. Kingston, 124 Wis. 263 , 102 N. W. 577 , it “determines and disposes finally of the proceeding — one which, so long as it stands, precludes-any further steps therein.” This I understand to be in accord with the view taken in In re Horicon Drainage Dist., ante, p. 42, 108 N. W. 198 . The difficulty is, however, that the present order does neither. It refuses to confirm the report, and therefore the drainage district is not yet established but it also refuses to dismiss the proceedings, upon the ground, as stated by the court, that he is not convinced that some modification of the plan reported by the commissioners is not possible so as to obviate the objections he now finds to the establishment of a drainage district in general pursuance of the policy of the petition filed. The statute (sec. 1379 — 18) seems to contemplate that such a situation may arise, and then expressly authorizes the court to again refer the matter to the commissioners, who may modify their report in any respect.- This situation seems to me identical with one where,, before proceeding to judgment, the court has declared that, either the pleadings or the evidence will not support a judgment in accordance with the complaint, but that, before enter *142 ing judgment, the parties may have opportunity to amend the pleadings or add to the evidence. In such case, obviously, the time of final adjudication would not have arrived. The consideration that the reasons advanced by the court, when and if carried into final order, would he conclusive against the petitioners, has no bearing upon the right of appeal, ivhich is given not from the decision, but from the final order. Nevil v. Clifford, 51 Wis. 483 , 8 N. W. 296 ; Maynard v. Greenfield, 103 Wis. 670 , 79 N. W. 407 ; Sutton v. C., St. P., M. & O. R. Co. 114 Wis. 647 , 91 N. W. 121 ; Land & S. Co. v. South Milwaukee, 127 Wis. 284 , 106 N. W. 850 . Other cases which seem to me to refute the appealability of this order are: In re Schumaker, 90 Wis. 488 , 63 N. W. 1050 ; Cook v. McComb, 91 Wis. 445 , 65 N. W. 181 ; Johns v. N. W. Mut. R. Asso. 94 Wis. 431 , 69 N. W. 160 . When our mandate of affirmance shall have gone down to the trial court, there will, to my mind, still exist there a proceeding which may go on for years and finally terminate in an order either establishing a drainage district in pursuance of the present petition or dismissing the proceedings, and from which either party in interest will then have a right to appeal.
A suggestion was made at bar that, since an order dismissing the proceeding would he appealable, an order refusing to dismiss, being the converse ruling of the court upon the same motion, ought to be. This reasoning has been repudiated in many analogous cases. The order of dismissal terminates the proceeding and is final; the order refusing to dismiss perpetuates it, and is not final. Moyer v. Koontz, 103 Wis. 22 , 79 N. W. 50 ; Welsher v. Libby, 106 Wis. 291 , 82 N. W. 143 ; Benolkin v. Guthrie, 111 Wis. 554 , 87 N. W. 466 . Perusal of the opinion fails to make entirely clear to my mind whether the decision is based upon want of power in the legislature to destroy a navigable body of water when public health or welfare demands, or merely upon absence of clear and unambiguous delegation of such power to drainage districts. I pre *143 sume the latter ground only is intended to be declared, since I did not understand that a majority, if any, of the members of the court expressed opinions in favor of the former. I am not prepared to hold that the legislature has not power to abate a public nuisance, a menace to public health, merely because navigable or fishable. Doubtless the purpose to delegate so high a power to any inferior tribunal is to be inferred only from the most unambiguous expression. Winchell v. Wau kesha, 110 Wis. 101, 108 , 85 N. W. 668 . I agree fully that the statute under consideration-contains none such.
Winslow, J. I concur in the views expressed by Mr. Justice Dodge.
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