Summary
Appeal from an order of tbe circuit court for Eau Claire county: Jaimes O’Neill, Circuit Judge.
This is an appeal from, an order vacating a portion of an interlocutory injunction. The motion for such order was heard on the complaint, answer, and affidavits. The plaintiffs, among other things, seek to enjoin the defendant, pending the litigation and permanently, from effecting a forfeiture of their rights under a certain contract for the construction, maintenance, and operation of a dam across the Chippewa river in the city of Eau Claire during the term of ninety-nine years from Eebruary 17, 1877, and from interfering with their possession and use-of such dam and works; to be relieved from sucb grounds of forfeiture, if any, as may exist, before any forfeiture bas been declared; to bave opportunity given them to perform sucb contract in any respect wherein they may be found to be in default; and to bave certain disputed questions respecting tbe rights of the parties under said contract ascertained and determined. Tbe defendant seeks relief adjudging that snch contract was and is void and that tbe defendant is presently entitled to tbe possession and use of sucb dam and works. A temporary injunction in accordance with tbe prayer of tbe complaint having been granted, tbe defendant, upon tbe pleadings and an affidavit of tbe city attorney, obtained an order requiring plaintiffs to show cause why sucb injunction should not be wholly vacated. Tbe issues on sucb bearing were whether tbe complaint stated facts entitling tbe plaintiffs to tbe permanent relief which they seek, and whether tbe doing by the defendant pendente lite of any of tbe acts temporarily enjoined would injure tbe plaintiffs or tend to render such judgment as they were entitled to ineffectual. Upon tbe bearing tbe circuit court made an order vacating so much of sucb temporary injunction as restrained tbe defendant from declaring a forfeiture of tbe contract or lease described in tbe complaint, but continued in force tbe injunction restraining tbe defendant from enforcing any forfeiture that might be declared. Tbe. plaintiffs claim that tbe modification of tbe interlocutory in junctional order was erroneous.
Tbe complaint, after describing tbe parties, makes reference to cb. 231, Laws of 1816, authorizing tbe construction of tbe dam, and the acts amendatory thereof. That act authorizes the city of Eau Olcdre to construct waterworks, and for that purpose to maintain a dam not exceeding sixteen feet in height above low-water mark across tbe Chippewa river; to construct aqueducts and mains; to acquire all machinery, works, and appendages necessary or proper for tbe successful construction and operation of sucb waterworks and of works to be constructed above and below suck dam for protecting and preserving tbe navigability of said river. Tbe act further provided that tbe dam should contain a lock for tbe passage of steamboats and rafts of lumber; that tbe same should be operated free from tolls; that tbe dam should contain separate and sufficient chutes and slides for tbe passage of logs, timber, etc.; that in case tbe dam authorized should create any water power not continuously needed to propel tbe machinery and to supply tbe mains connected with said waterworks, or to preserve tbe navigability of tbe river, the city might lease tbe same or any part thereof for manufacturing or other purposes', and also lease tbe piers and other structures for any use or purpose which should not materially obstruct tbe navigability of tbe river or interfere with tbe successful operation and maintenance of tbe dam and works authorized; that tbe city should be liable for damages sustained by reason of the insufficiency of any of the.works authorized or by reason of unreasonable delays or detentions suffered on account of tbe manner of operating the same, and for all damages suffered by reason of negligence of agents or employees of tbe city in operating tbe same. Tbe amenda-tory acts authorize the maintenance of tbe dam at a height not exceeding eighteen feet above low-water mark, and also authorize the city to grant by contract or ordinance to any person or corporation tbe right and authority to construct for themselves and own tbe waterworks provided for and to maintain and operate tbe same. Tbe complaint further alleges that on February 17, 1877, tbe city was and ever since has been unable to construct said dam, works, and improvements at its own expense, and that tbe only method by which this could be accomplished was by contracting with some person or corporation for the construction of the same, and that upon said date the city entered into a contract with one of the plaintiffs, which may be designated as the Improvement Company, which contract is set out in the complaint. By this contract the Improvement Company undertook to construct tlie dam, the lock and chutes and slides, and such piers and booms as should be requisite to protect and preserve the navigability of the river, as prescribed in the act of the legislature. The Improvement Company further undertook to construct and operate certain other works and facilities for the maintenance of power for the operation of the waterworks and to contribute certain money to aid in the purchase of machinery for waterworks. The city agreed, among other things, to turn over to the Improvement Company its bonds to the amount of $95,000, and further agreed, in consideration of the performance by the Improvement Company of its covenants, which were declared to be a condition precedent, to lease for a term of ninety-nine years, for the purposes mentioned, the interest of the city in the surplus water power created by the dam and not required for waterworks purposes for the nominal rental of one dollar per year, the lease to be executed and delivered within thirty days after the completion of the works and on demand of the company. The contract provided what the lease should contain with respect to the navigability of the fiver and the supply of water for the operation of the waterworks, and that it should “maintain and operate all of said works so constructed by it, in strict accordance as the same are authorized to be maintained and operated by said city by said act of the legislature and not otherwise,” and that it should not assign said lease or under-let the whole of the premises without the consent of the city. The provision of the contract under which the city claims the right to declare a forfeiture is as follows:
“And it is further mutually covenanted and agreed, by .and between the parties hereto, that in case of the nonpayment of said rent whenever and as fast as it becomes due, or in case of the noncompliance with said conditions precedent, or in case of the nonperformance by said second party of any of the covenants or agreements hereinbefore contained on its part to be performed, then in tbat case the said city of Eau Claire, its attorney or assigns, shall, after giving thirty days’ notice of such default to said second party or any. of its principal officers, if such default then continues, have the full right to vacate this lease and declare all the provisions, terms, and conditions thereof null and void, whereupon the said lessee shall yield up to the said lessor, its attorney, agent, or assigns, full, quiet, peaceable, and immediate possession of the said premises and rights hereby leased, anything herein contained to the contrary notwithstanding.”
It is alleged that the lease provided for in the contract was never executed, but that both parties have treated the contract as embodying the terms of the lease. It sets forth the construction and maintenance of the dam and works at an expense of over $200,000, all of which was paid by the Improve-' ment Company except the contribution by the city of $95,000 of bonds; that it has paid the annual rentals stipulated for; and that it has maintained the dam, works, and improvements at great cost and expense, and has recently - expended large sums of money in repairing and improving the same.
The complaint alleges that at the time the construction of the dam was authorized and ever since it has been the general custom in this state to use flashboards on dams to control and regulate the water thereby accumulated, and that it was necessary for the proper -management of said dam and water power created thereby that such flashboards should be used, and that for more than twenty years prior to the commencement of this action such flashboards have been maintained at a height of from four to six feet above the crest of said dam, and for several years prior to the commencement of this action such flashboards have been maintained at the height of eight feet, and that it is necessary that the flash-boards now being used should be maintained in order to furnish the necessary supply of water for the operation of the waterworks for said city and to supply the necessary water for the other uses contemplated in the contract. Eaets are set forth which it is claimed show the consent and acquiescence of the city in the use of such dashboards. The complaint alleges that the Chippewa river is no longer used for the purposes of navigation, and that after the navigation of the river by steamboats and lumber rafts had ceased the Pulp Company, one of the plaintiffs, being an assignee of the Improvement Company, with the consent of the city constructed one of its mills over the lock at great expense, and has since maintained the same with the consent of said city. It is alleged that the use of said dashboards has not caused any injury to the city or to any person, and that their discontinuance would be of no benedt to anybody whatever, but on the contrary such discontinuance would cause great damage to the parties especially interested; that the use of said mill and machinery in and over said lock causes no damage to said city or to any other person, but that the removal of the same would cause great loss and damage to said Pulp Company; that it is not possible within the period of thirty days to build another lock in said dam, but that such lock could be constructed at great loss and expense, but that when constructed no use could be made thereof. It is further alleged that the city, by the construction of bridges below said dam, has effectually obstructed any navigation upon the stream which would render the lock necessary. The complaint charges the adoption by the common council on August 1, 1906, of a resolution, thereto attached, directing service upon the Improvem.ent Company and all claiming under it of a certain notice, which notice sets out the breach of the contract in substance as follows : That the dam has been maintained many feet above the authorized height; that the lock has been converted to- private use and its use for navigation destroyed; that sufficient chutes and slides have not been maintained; that the dam has been so changed and altered as to materially obstruct navigation; that the surplus water has been misapplied and appropriated to uses and to the benefit of persons not authorized by the contract; that tbe land of tbe city adjacent to tbe river bas been appropriated to private uses; tbat tbe Improvement Company bas become irresponsible and practically defunct. Tbe notice, in pursuance of tbe terms of tbe contract, after reciting tbe breaches complained of, contains tbe following language: “And tbat tbe continuance of such default for thirty days after this notice will give tbe said city tbe full rights in the said contract provided in such case, which will then be exercised and enforced.” Tbe complaint further charges tbe service of tbe above notice on August 4, 1906, tbat tbe regular meeting of tbe council would be held September 5, 1906, and tbat it was tbe intention of tbe common council at such meeting to adopt a resolution purporting to vacate the contract of Eebruary 17, 1877, and declare its provisions void and forfeiting tbe interest of tbe plaintiffs in tbe property. Tbe complaint alleges “tbat such action on tbe part of tbe officers of said city and its common council would greatly injure and impair tbe property, rights, and interests of tbe plaintiffs and each of them, would create a cloud upon their title to their respective properties, and would cause tbe plaintiffs irreparable loss, damage, and injury.”
Tbe relief prayed in tbe complaint is in substance tbat tbe contract of Eebruary 17, 1877, be adjudged valid; tbat defendant be required to execute a formal lease pursuant to tbe contract as modified by subsequent agreements or acquiescence of tbe parties; tbat it be adjudged tbat tbe use of tbe flashboards and the closing of the lock were not a breach of tbe contract; tbat, if determined to be a breach, it be adjudged tbat tbe breach bas been waived; that, if adjudged that tbe breach has not been waived, “tbe plaintiffs be relieved from such forfeiture and grounds of forfeiture in such manner and subject to such conditions as tbe court shall determine;” “tbat tbe rights of all parties interested in tbe maintenance of said dam, and tbe use of tbe hydraulic power made available thereby, shall be ascertained and determined;” and that the rights of the plaintiffs be quieted — together with a prayer for the temporary and permanent enjoining of the city from declaring or enforcing a forfeiture.
The answer puts in issue the allegations of the complaint as to the construction and validity of the contract, and as to the waiver by the city particularly denies any waiver of the breach of the contract arising from the closing of the lock and from the use of flashboards, asserts that the closing of the lock and use of the flashboards is unauthorized and illegal, and contains averments showing that the use of the flash-boards is not necessary to any public use, but that they serve only the private purposes of the plaintiffs, and alleges facts tending to show that the breaches of the contract by the plaintiffs are destructive of navigation and operate to the great injury of the city and jeopardize the lives and property of its inhabitants. The answer expressly denies that the city has, by its officers or otherwise, threatened to or will take possession of the said dam, water power created thereby, structures or works therewith used and connected, or any property of said plaintiffs or either of them, until such time as the proper court shall have decreed that the defendant city is entitled thereto', and denies that it is about to or will hinder or prevent the furnishing of water power for the operation of the waterworks in said defendant city for municipal or other purposes. The answer prays that the preliminary injunction be dissolved, that the contract of February 17, 1877, be adjudged invalid, and that the defendant be adjudged to be entitled to the ownership and possession of the dam and its appurtenances, with a prayer for general relief.
The affidavits presented by the respective parties go in corroboration of said allegations contained in the complaint or the answer, and their contents are not material to the questions involved on this appeal. The interlocutory injunc-tional order was based- on tbe verified complaint and was issued ex paHe by a court commissioner, and in substance restrained tbe defendant, first, from declaring, by ordinance or otherwise, and from doing any act for tbe purpose of declaring, tbe forfeiture of tbe contract; second, from taking possession, or interfering with plaintiffs’ possession, of the dam and water power. IJpon tbe bearing in tbe trial court, as appears from tbe opinion of the lower court, tbe city did not seek to modify tbe latter part of tbe injunction, preventing tbe city from enforcing a forfeiture. Tbe city merely asked tbe vacation of that part of tbe order which prevented it from declaring the forfeiture, and such is tbe scope of tbe order modifying tbe injunction and now before this court for review.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
