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Pumpelly v. Green Bay Company, 80 U.S. 13 Wall. 166 166 (1871)

Pumpelly v. Green Bay Company

80 U.S. (13 Wall.) 166


1. Where a plea relies on a statute authority as a defense, it must allege the facts which it asserts to be so authorized, and cannot plead generally that it complied with the statute. Hence a plea is bad which states that defendant raised the water in a lake no higher than the statute authorized when the state forbid the water being raised above its ordinary level.

2. Where a declaration charges a defendant with overflowing the plaintiff's land by raising the water in the lake, a plea containing neither a denial of what is alleged nor authority for doing it is bad.

3. By the general law of European nations and the common law of England, it was a qualification of the right of eminent domain that compensation should be made for private property taken or sacrificed for public use.

4. And the constitutional provisions of the United States and of the several states which declare that private property shall not be taken for public use without just compensation were intended to establish this principle beyond legislative control.

5. It is not necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of this constitutional provision. There may be such serious interruption to the common and necessary use of property as will be equivalent to a taking, within the meaning of the Constitution.

6. The backing of water so as to overflow the lands of an individual, or any other superinduced addition of water, earth, sand, or other material or artificial structure placed on land, if done under statutes authorizing it for the public benefit, is such a taking as by the constitutional provision demands compensation.

7. This proposition is sustained by the decisions of the Supreme Court of Wisconsin construing the provision of the constitution of that state on the subject, and by many other adjudged cases in this country.

8. The cases which hold that remote and consequential injury to private property by reason of authorized public improvements is not taking such property for public use have many of them gone to the utmost limit of that principle, and some beyond it, though the principle is a sound one in its proper application to many injuries so originating.

9. Lands sold by the United States with no reservation, though bordering on it navigable stream, are as much within the protection of the constitutional principle awarding compensation as other private property.

The Constitution of Wisconsin ordains that

"The property of no person shall be taken for public use without just compensation therefor. "

Page 80 U. S. 167

With this provision in force as fundamental law, one Pumpelly, in September, 1867, brought trespass on the case against the Green Bay & Mississippi Canal Company for overflowing 640 acres of his land by means of a dam erected across Fox River, the northern outlet of Lake Winnebago, by which, as the declaration averred, the waters of the lake were raised so high as to forcibly and with violence overflow all his said land from the time of the completion of the dam in 1861 to the commencement of this suit, the water coming with such a violence, the declaration averred, as to tear up his trees and grass by the roots and wash them, with his hay by tons, away, to choke up his drains and fill up his ditches, to saturate some of his lands with water, and to dirty and injure other parts by bringing and leaving on them deposits of sand, and otherwise greatly injuring him. The canal company pleaded six pleas, of which the second was the most important, but of which the fourth and sixth may also be mentioned.

This second plea was divisible, apparently, into two parts.

The first part set up (quoting it entire) a statute of Wisconsin Territory, approved March 10, 1848, by which one Curtis Reed and his associates were authorized to construct a dam across Fox River, the northern outlet of Winnebago Lake, to enable them to use the waters of the river for hydraulic purposes.

The second section of the act quoted read thus:

"Said dam shall not exceed seven feet in height above high water mark of said river, provided that said dam shall not raise the water in Lake Winnebago above its ordinary level."

"And the said Curtis Reed and his associates, their heirs and assigns, shall be subject to, and entitled to, all the benefit and provisions of the Act relating to Mills and Mill Dams approved January 13, 1840."

"[NOTE -- 'The Act relating to Mills and Mill Dams, approved January 13, 1840,' thus referred to in the statute of 1848, as an act to which Reed and his associates should be subject, was an act of Wisconsin which provided a special remedy for persons whose lands were overflowed or otherwise injured by mill dams. Section 4 was as follows: "

Page 80 U. S. 168

" Any person whose land is overflowed or otherwise injured by such dam may obtain compensation therefor upon his complaint before the district court for the county where the land, or any part thereof, lies, provided that no compensation shall be awarded for any damages sustained more than three years before the institution of the suit."

"Sections 5 to 27, inclusive, provided for the manner of prosecuting the suit, the form, effect, and mode of enforcing the judgment, and for appeals and proceedings thereon. Section 28 was thus:"

" No action shall be sustained at common law for the recovery of damages for the erecting, maintaining, or using any mill or mill dam except as provided in this act.]"

The plea, still continuing its first part, averred that Reed and an associate commenced the building of this dam; that by certain legislation of Wisconsin (now become a state), it was afterwards adopted as part of the system of improving the navigation of the Fox River, and became the property of the defendants. The plea, after referring to the provisions of the act of 1848, averred

"That the said dam was built to the same height and in the same manner, and to no greater height and in no different manner from that duly authorized under and according to the provisions aforesaid, and to no greater height than was authorized by the act aforesaid, approved March 10, 1848."

"That the said dam has ever since been and is now continued and maintained at the same and no greater height, and in the same and no different manner from that to which and in which it was originally built and erected as aforesaid."

In what might be distinguished as its second part, the plea having set forth and pleaded in the first, as already indicated, that the Legislature of Wisconsin, after it had become a state, passed an act to provide for the improvement of the Fox and Wisconsin Rivers; that Doty and his associate accepted the terms of the act; that under the act, a board of public works was organized which, through Doty and his associate, built the dam -- went on to say that by subsequent legislation, in the years 1861 and 1866, the present defendants were made a corporation under the laws of Wisconsin,

Page 80 U. S. 169

and became possessed of the "River Improvement," so called, and of its dams, water powers,

"also all other rights, privileges, franchises, easements, and appurtenances of all kinds described in the acts of the Legislature of Wisconsin &c., . . . including the easement or right to overflow, as hereinafter mentioned."

The plea then proceeded to say that by the act of building and completing the dam &c., and by means of the waters of Lake Winnebago, Reed and Doty, and the state by its board of public works, did, as they lawfully might do, seize, and, to the extent necessary and for the purposes of a water power and of the said improvement, take possession of the lands and premises, trees, grass, herbage, drains, ditches &c., in the declaration mentioned, to the extent that the same were, as therein alleged, destroyed, damaged, overflowed, saturated, and subverted, and otherwise injured; that the seizure and taking possession were so made and done under claim and color of right and title duly made by virtue of the laws of Wisconsin, and that the defendant had done as lawfully it might.

The fourth plea set forth the legislation authorizing the erection of the dam and the improvement of the river, the title of the defendant to the improvement and its privileges and duties in relation thereto -- all as in the second plea -- and alleged that the dam was completed in the year 1852; that the state, by its board of public works, seized so much of the plaintiff's land as was overflowed and as was necessary for this improvement, and ever since the completion of the dam in 1852 that the state, its successors, and the defendant, had held, and that the defendant now held the same; that such seizure was made under claim and color of right and title, by virtue of the laws of Wisconsin; publicly and notoriously, and with the knowledge and acquiescence of the plaintiff, and under like claim and color, and in like manner had since been held; that the plaintiff, at the time of such seizure, was seized in fee and was in possession of the land described in the declaration, subject to the rights acquired by the state by its seizure and possession; that

Page 80 U. S. 170

during all the said time -- i.e., since the completion of the dam, in 1852 -- the plaintiff had been under no disability which disabled him from bringing suit.

The sixth plea alleged that by the Ordinance of 1787, the Act of Congress of August 7, 1789, the act establishing the territorial government of Wisconsin, the act admitting the State of Wisconsin into the Union, the Constitution of the State of Wisconsin, and the laws of the United States and of the State of Wisconsin, it was declared that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places &c., should be common highways and forever free; that the Fox and Wisconsin Rivers and Lake Winnebago were and ever had been of the navigable waters thus referred to; that the Fox River was a navigable water leading into the St. Lawrence.

The plea then set out the legislation in regard to the improvement, the incorporation of the Fox and Wisconsin Improvement Company, the organization, incorporation, and title of the canal company (the defendant), as set forth before, and further alleged that the dam was built and maintained under the authority of the laws of the United States and of the State of Wisconsin and the board of public works; that as constructed and maintained, it was and is an essential portion of the works for the improvement of the navigability of the Fox and Wisconsin Rivers, and to the proper development as common navigable highways; that the ordinance, the laws of Congress and of the state, granted and assigned to the defendant, the improvement and the easement, right and privilege of overflowing &c., the lands described in the declaration, to the extent necessary to improve the navigability of said rivers; that under a treaty with the Winnebago Indians in 1832, the United States patented certain land (of which the plaintiff's was a part) to one Theresa Paquette; that she, the said Theresa and original grantor of the lands described in the declaration, and all the subsequent grantees thereof, including the plaintiff, purchased with full notice of, and subject to, the easement

Page 80 U. S. 171

and right aforesaid, and which easement and right was granted to the state prior to the original grant of title to plaintiff's land, which is alleged to have been in 1849.

A general demurrer to these three pleas being overruled by the court, the plaintiff brought the case here.

Page 80 U. S. 174

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