noting that no one public use would be destroyed or greatly impaired and that the benefit to public use outweighed the harmSummary of this case from In re Water Use Permit Applications
January 11, 1957 —
February 5, 1957.
APPEAL, from a judgment of the circuit court for Dane county: HELMUTH F. ARPS, Circuit judge, Presiding. Affirmed.
For the appellant there was a brief by the Attorney General and Roy G. Tulane, assistant attorney general, and oral argument by Mr. Tulane.
For the respondent Public Service Commission there was a brief and oral argument by William E. Torkelson, chief counsel.
For the city of Madison there was a brief and oral argument by Harold E. Hanson, city attorney.
Proceeding instituted June 13, 1955, by the state of Wisconsin at the request of the Conservation Commission to review orders of the Public Service Commission. The judgment affirmed the orders. The state of Wisconsin appealed.
The Public Service Commission, in the first of the orders reviewed, gave its approval to proposed filling and dredging by the city of Madison of portions of Lake Wingra adjacent to Henry Vilas park and the use of the area for parks, lagoons, recreational activities, parking areas, and appurtenant highways. In the second order, the commission denied rehearing.
Ch. 282, Laws of 1953, authorized the city of Madison, subject to the approval of the Public Service Commission, to fill and dredge within the area of Lake Wingra lying northeasterly of a specified straight line and to use the area for parks, lagoons, recreational activities, parking areas, and for any other municipal purpose. The act granted the city concurrent jurisdiction over the area.
The city of Madison drew up plans and on January 28, 1955, applied to the Public Service Commission for approval. The commission held hearings and made findings of fact which are undisputed.
The commission found in substance: The city owns and operates Henry Vilas park, fronting on Lake Wingra. It contains a system of lagoons connecting with the lake. Lake Wingra and the lagoons are navigable in fact. The lake is used for boating, swimming, fishing, and skating and the lagoons for boating and skating. There is a bathing beach on the shore of Lake Wingra, in the park area, and there is a highway behind the bathing beach. The city proposes to fill part of a lagoon, to remove an existing bridge, to fill a portion of the lake bed and use it for parking of cars, enlargement of the beach area, and relocation of highways, to open a new waterway between the lake and the lagoon, and to build a new bridge. The project will provide a more substantial bathing beach and better park facilities. The improved parking facilities will be a convenience for bathers and other park users, but are not essential. The rearrangement of highways will add convenience and safety, but is not essential. Other methods toward the same purposes would be possible, "although possibly not as desirable."
The present area of Lake Wingra is about 320 acres. It will be reduced by approximately 11/4 per cent of its area. The fish-producing potential of the lake will be reduced by 800 to 1,000 pounds of game fish and a like quantity of rough fish per year and the number of fish caught in the lake will be cut by about 50 pounds for each acre to be filled. The areas proposed to be filled are within the boundary line fixed by ch. 282, Laws of 1953.
The commission further found: The project "will not (excepting the portions of the bed of the existing lagoon and lake to be filled) materially obstruct navigation nor be detrimental to the public interest." Respecting the portion of the present lagoon and lake bed to be filled, the project will destroy navigation. Enlarging the swimming beach, dredging a portion of the lake toward its outlet, and opening a new connection between lake and lagoon will improve navigation.
In a preface to its findings, the commission expressed concern over the validity of ch. 282, Laws of 1953. It suggested that ch. 282 delegates legislative power without establishing any standard and that it authorizes filling the bed of a navigable lake for purposes not directly in aid of navigation. The commission explained that it would proceed to perform the duty imposed by ch. 282 and that it would apply the standards prescribed by sec. 30.02, Stats., under which the commission is empowered to grant a permit for placing structures or materials on the bed of a navigable water. After making the findings summarized above, the commission concluded that it should grant approval, and did so on April 5, 1955. On May 20th, the commission granted the state leave to intervene, but denied applications of the state and others for rehearing.
The state asserts that the order of the commission should have been reversed because (1) ch. 282, Laws of 1953, is an unconstitutional delegation of legislative power, (2) the findings of fact do not support the order of approval, (3) ch. 282 makes a grant of a lake bed in violation of the trust under which the state owns and controls lake beds, (4) the public purpose to be served by the project is local and the grant is without valuable consideration.
These various challenges must fail for the reasons hereinafter set forth.
Ch. 282, Laws of 1953, is an act for a specific purpose which is fully described. The legislature itself has determined that it is in the public interest to authorize Madison to develop its park by the filling and use of a portion of the bed of Lake Wingra. By the use of the phrase, "subject to the approval of the Public Service Commission," the legislature has required Madison to submit the details of its project to the commission and obtain approval.
The standards for the approval are properly implied from ch. 282, Laws of 1953, itself and from sec. 30.02, Stats., which gives the commission general power to grant permission to place fills or structures on the beds of navigable waters when satisfied that such action will not materially obstruct navigation nor be detrimental to the public interest.
The commission, before approving the project, must be satisfied that it complies with the limitations and purposes expressed in ch. 282, Laws of 1953. It has done so. It has found the project is within the area prescribed by the legislature and will serve the purposes mentioned. Ch. 282 contemplates that a portion of the lake bed will be filled. Obviously it contemplates that navigation, in a strict sense, will be destroyed to the extent of the fill. In enacting ch. 282 the legislature has determined that some fill and corresponding destruction of navigation is in the public interest. By requiring the approval of the commisson, [commission] the legislature required that the details of the project be considered and that it be determined whether the manner in which Madison carried out its authority would materially impair navigation or be detrimental to the public interest. The delegation is greatly limited, and clearly complies with the principles set forth in State ex rel. Wisconsin Inspection Bureau v. Whitman, 196 Wis. 472, 220 N.W. 929, and decisions following it.
Approval also is a continuing condition of the authority granted to Madison. Should Madison desire to make any material change in the manner of exercising its authority, it would be required to obtain approval of the change.
The state argues that because the commission found that the fill would, pro tanto, destroy navigation, the findings do not support the order of approval. Clearly the legislature contemplated when it enacted ch. 282, Laws of 1953, that there would be some destruction of navigation in the strict sense of the word, and we understand that the findings of the commission approved the project generally as not materially impairing, and in fact improving navigation in certain particulars, while recognizing the obvious, that one could not boat, fish, nor swim in an area where water had been replaced by dry land.
We are of the opinion that the use of filled lake bed, to the extent authorized in ch. 282, Laws of 1953, for park improvement, including a parking area and appurtenant highways, as well as alterations which will aid navigation and other enjoyment of the water, does not violate the obligations of the trust subject to which the state owns the lake bed.
In reaching that conclusion, we attach importance to these facts: 1. Public bodies will control the use of the area. 2. The area will be devoted to public purposes and open to the public. 3. The diminution of lake area will be very small when compared with the whole of Lake Wingra. 4. No one of the public uses of the lake as a lake will be destroyed or greatly impaired. 5. The disappointment of those members of the public who may desire to boat, fish, or swim in the area to be filled is negligible when compared with the greater convenience to be afforded those members of the public who use the city park.
In Muench v. Public Service Comm. 261 Wis. 492, 499, 53 N.W.2d 514, 55 N.W.2d 40, Mr. justice CURRIE reviewed the history of the doctrine that the state holds the beds underlying navigable waters in trust for all of its citizens. (p. 501.) The trust is "for public purposes." Illinois Steel Co. v. Bilot, 109 Wis. 418, 426, 84 N.W. 855, 85 N.W. 402. Early decisions frequently spoke of navigation, often in a commercial sense, as the purpose of the trust, but all public uses of water have from time to time been recognized, including pleasure boating, sailing, fishing, swimming, hunting, skating, and enjoyment of scenic beauty.
Certainly the trust doctrine would prevent the state from making any substantial grant of a lake bed for a purely private purpose. Priewe v. Wisconsin State Land — Improvement Co. 93 Wis. 534, 67 N.W. 918. Even for a public purpose, the state could not change an entire lake into dry land nor alter it so as to destroy its character as a lake. In re Crawford County L. — D. Dist. 182 Wis. 404, 196 N.W. 874. But the trust doctrine does not prevent minor alterations of the natural boundaries between water and land.
"It is not the law, as we view it, that the state, represented by its legislature, must forever be quiescent in the administration of the trust doctrine, to the extent of leaving the shores of Lake Michigan in all instances in the same condition and contour as they existed prior to the advent of the white civilization in the territorial area of Wisconsin." Milwaukee v. State, 193 Wis. 423, 451, 214 N.W. 820.
The supreme court of the United States has recognized that parcels of lake bed could even be granted by the state to private persons where such parcels "being occupied, do not substantially impair the public interest in the lands and waters remaining." Illinois Central R. Co. v. Illinois., 146 U.S. 387, 452, 13 Sup. Ct. 110, 36 L.Ed. 1018. Similarly, Franzini v. Layland, 120 Wis. 72, 82, 97 N.W. 499.
Even where an artificial change in the course of a navigable stream will impair the enjoyment of water by hunting and fishing to some extent, the degree of impairment must be weighed against the other public interests to be served and unless the impairment so viewed is substantial, the impairment is not a violation of the trust. Merwin v. Houghton, 146 Wis. 398, 410, 131 N.W. 838.
"Undoubtedly, when the Houghton Case was decided, this court was thoroughly impressed with the idea that the trust reposed in the state was an active, administrative, and governmental trust, and one which should be administered to promote not only navigation but the public health and welfare generally." Milwaukee v. State, 193 Wis. 423, 452, 214 N.W. 820.
As well said by the learned trial court:
"It does not appeal to the reasoning of this court that in exercising its duty, as trustee for the people of the state to the lands underlying its navigable waters, that the state is required to leave the beds of all navigable waters intact and in the condition in which they were created by nature. . . .
"There must be a realistic and sane legal approach to this problem, namely, a balancing of public need and convenience against the interference with navigation involved."
A similar thought is expressed by 1 Farnham, Water and Water Rights, pp. 398, 399, sec. 84:
"The question depends altogether upon the importance of the navigation as compared with the interests which would be promoted by sacrificing it. . . . Therefore, the doctrine is firmly established that when it is for the public interest to interfere with rights of navigation, so far as the public is concerned the legislature may do so. . . . It is primarily for the legislature, and not for the courts, to determine between the conflicting interests and the necessity of requiring the navigation right to yield, and its discretion will not be interfered with by the courts, except in cases of a plain and gross abuse of discretion."
There is no contention here that the purpose authorized by ch. 282, Laws of 1953, is not public. The purpose which is served is not local in any sense which would involve improper use of state property. Any park is local in the sense that it will be of greater use to those living near it than those who are remote, but this has never been considered to prevent the state from providing a park wherever it sees fit. The park is open to all who seek to use it.
Appellant suggests that ch. 282, Laws of 1953, is a grant of property for which consideration must be received. The answer is that ch. 282 is only permission to use property, not a grant of it. It vests nothing in the city which the legislature could not take back at will.
By the Court. — Judgment affirmed.
The landfill in question has a reasonable relationship toward improved use of the water for purposes of public navigation and recreation and I concur in the result reached by the majority of the court. But in so far as the majority opinion permits use of the lake bed if only some public purpose is served thereby, even though such purpose is opposed to, and even inconsistent with, use of the water by the public, I disagree, preferring to reserve decision of that question until it is presented by the record.
I am authorized to state that Mr. justice STEINLE and Mr. Justice WINGERT are of the same opinion.