City of Milwaukee v. Gimbel Bros.

Dodge, J.

In tbis case tbe trial court bas exercised its discretion to maintain tbe present status quo until tbe various issues of fact and law can be duly considered and decided. Were tbis not done, tbe damage to result from an effective removal of all claimed obstructions in Milwaukee river east of tbe established dock line would be vastly greater than any caused by temporary restraint of tbe construction of a business building, as alleged to be threatened, and the- result sought by tbe action, namely, preventing obstruction of navigation, would be rendered impossible. Under such circumstances, if there is any reasonable probability, because of fair 'doubt as to either law or fact, that plaintiff may ultimately recover, it is tbe part of wise judicial discretion to maintain tbe existing conditions by a properly guarded restraining order. Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467 , 84 N. W. 870 ; Quayle v. Bayfield Co. 114 Wis. 108, 112 , 89 N. W. 892 ; Bartlett v. L. Bartlett & Son Co. 116 Wis. 450, 460 , 93 N. W. 473 ; Chain Belt Co. v. Von Spreckelsen, 117 Wis. 106, 119 , 94 N. W. 78 . Maintenance of suit in equity by a municipal corporation to prevent encroachment upon and obstruction of highways by land or water under its care and charge is entirely settled in tbis state. Eau Claire v. Matzke, 86 Wis. 291 , 56 N. W. 874 ; Pewaukee v. Savoy, 103 Wis. 271, 279 , 79 N. W. 436 ; Wauwatosa v. Dreutzer, 116 Wis. 117 , 92 N. W. 551 . Hence the probability of recovery is not excluded by reason of tbe form of action.

As an obstacle to recovery, claimed to be certain and insuperable, it is urged that regulation of all harbors used in interstate commerce bas been assumed by tbe federal government, and that thereby all power of tbe state over tbe subject is excluded. It would be an extreme doctrine that tbe United States, by anything short of express authorization, could exclude tbe state from tbe ordinary police control over tbe conduct of its citizens or the erection of structures within its limits, but we need consider no such question, for tbe federal *35 statutes are merely restrictive of certain acts and, on tbeir face, evince no purpose to exclude the states from prohibiting other acts within their borders as deemed necessary for public welfare and safety. This limited purpose has already been ascribed to the statutes by the ultimate judicial tribunal in Cummings v. Chicago, 188 U. S. 410 , 23 Sup. Ct. 472, and Montgomery v. Portland, 190 U. S. 89 , 23 Sup. Ct. 735, which hold that even express consent by federal authority- to erect structures within navigable harbors wholly within a state will not abrogate restrictions or prohibitions imposed by the state government, and that the purpose of the federal legislation is merely to supplement and not to exclude that of the several states.

As to other questions involved in the litigation, whether of law or fact, we shall hardly feel justified in declaring any final conclusion in view of the incompleteness with which they are presented by the record and the briefs. We construe the complaint as asserting that all structures, ancient or in progress, east of the established dock line do obstruct navigation of the river and are within its limits. The denials of this claim in answer and affidavits but serve to make an issue, as to which we are unable to say, with sufficient certainty, that the trial court might not have entertained such doubt as to warrant his discretion in the restraint interposed.

Counsel for appellants insist that it conclusively appears that the space between the established dock line and the east line of the proposed building, coincident with the existing dock line, never could have been navigable. We do not quite understand his meaning. If it is that the space never was under water, either practically navigable or capable of being made so, we do not think that fact conclusively appears. Whether that space was originally dry land or was part of the bed of the river, so that the state might prevent illegal occupation thereof and preserve it “forever free,” in the words of the Ordinance of 1787, cannot be clearly answered from this *36 record. If, on tbe other hand, he means merely that vessels could not navigate that space because of the artificial structures placed there, the assertion is doubtless true, but not nee? essarily material. If it shall be found that the structure is an unlawful obstruction to the public use of a navigable river, its presence, excluding rightful passage of vessels over that spot, could not make lawful4other and more complete obstruction. The fact that the government permits a structure in some degree interfering with navigation does not work a surrender of its authority to prevent other structures even on the same spot. Obviously, a fringe of platform alongside of this harbor in which vessels must pass and turn round, near-enough to the water level not to interfere with protruding upper portions of hull or rigging, may less obstruct the use of the harbor than would the wall of a building on the same line. Nor because a party had driven a certain number of piles in a given space would the government be disabled from preventing driving others in the same space, if unlawful, thus making the whole structure more substantial and more difficult of' abatement, which, by the way, seems to be one of the objects of the present action, although defendants assume otherwise. The complaint prays that defendants be compelled to remove and take away all piles already driven in the space east of .the-established dock line and also for general equitable relief,, and the resolution under which the city attorney brings the suit directs him to procure the removal of existing obstructions.

We are persuaded that no error is presented by the restraining order pending the ascertainment of the rights of the parties.

By the Court. —Order appealed from is affirmed.