
    Wells and others, Respondents, vs. Wisconsin River Power Company, Appellant.
    
      April 3
    
    April 30, 1918.
    
    
      Mills and milldams: Eminent domain: Compensation for lands made unfit for agriculture: Statutes construed: “Injure."
    
    1. Under ch.. 189, Laws 1907, granting power to build and maintain a dam across the Wisconsin river at Prairie du Sac, the licensees must make compensation for the injury to lands which are made permanently unfit for agricultural purposes by the backing up of the water, as well as for lands which are actually overflowed.
    2. The word “injure” in sec. 2, ch. 189, Laws 1907, and in sec. 1777e, Stats. 1898, should not be construed in its technical legal senáe, as referring merely to an actionable wrong, but rather in the popular and usual sense, as applying to any damage inflicted.
    Appeal from an order of the circuit court for Columbia county: Chestee A. Eowlee, Circuit Judge.
    
      Affirmed.
    
    This is a condemnation proceeding brought' by owners of land bordering on the Wisconsin river who claim that their lands are flowed or permanently injured by reason of the erection and maintenance of a dam at Prairie du Sac by the appellant, the Wisconsin Biver Power Company. The appellant admitted the flowing of certain of the lands, but denied that it had flowed the remainder. Upon the hearing of the petition the court found that certain of' the lands were permanently flooded (and.no contention is now made against that finding), also that the remaining parcel of the lands was “permanently injured and its use for agricultural purposes practically destroyed by reason of the stoppage and interference with the underground drainage” thereof by the erection and maintenance of the dam, and commissioners were appointed to assess compensation not only for the lands actually flowed but for the damage to the lands not actually flowed but permanently injured for agricultural purposes. The Power Company appeals from the order because it includes among the lands to be appraised the last named lands.
    For the appellant there was a brief by J ones <& Schubring, and oral argument by E. J. B. Schubring and Arnold Peterson, all of Madison.
    For the respondents there was a brief by Qrotophorst, Thomas', Bieser & Quale of Baraboo, and oral argument by H. E. Thomas.
    
   WiNsnow, 0. J.

The question in the case is whether the Power Company must'make compensation for the injury to lands which are made permanently unfit for agricultural purposes by the backing up of water by its dam as well as for lands which are actually overflowed.

This depends on the legislation under which the Power Company is acting, and an examination of that legislation clearly shows, we think, that the question must be affirmatively answered.

The Power Company obtains its authority to maintain the dam by virtue of a grant of power made to certain persons (of whom the company is the assignee) by ch. 189, Laws 1907. This act evidently contemplates- that the licensees shall make compensation for injuries to lands not flowed as well, as for lands actually flowed.

By sec. 2 of the act it is declared that “In case it shall be necessary to take, flow or injure” any lands or property for tbe purpose of tbe construction or use of tbe dam tbe licensees shall be subject to tbe provisions and entitled to all tbe benefits and remedies of cb. 146, Stats. 1898 (tbe milldam act). By sec. 3 of tbe act it is further provided that “for acquiring tbe necessary lands or rights, easements or privileges in lands” necessary for tbe complete and successful construction of tbe dam and improvement of navigation, tbe said licensees may enjoy tbe rights granted to corporations by secs. 1 111 to 1 lile inclusive, Stats. 1898, and tbe amendments thereto.

Turning to tbe statutes last named we find that they have to do with log-driving corporations, which are authorized to improve streams with flooding dams, booms, etc., and are given powers of condemnation for that purpose. Tbe most significant of tbe sections referred to is sec. 1 lile, in which it is provided that such corporations may acquire title to necessary lands or easements by purchase or lease or by eminent domain, “and in case it shall be necessary to take, flow or injure lands and property in tbe construction of tbe works . . . such lands and property or easements therein may be acquired” in tbe manner prescribed by tbe statutes with reference to condemnation by railroads.

In our judgment tbe word “injure” in this statute as well as in tbe statute licensing tbe construction of tbe dam was intentionally inserted and was not intended to be construed in its technical legal sense, i. e. an actionable' wrong, but rather in tbe popular and usual sense, namely, an act resulting in damage. If tbe word were to be construed in its strict technical sense tbe insertion of it in tbe statute would accomplish little, if anything; construed in tbe usual sense, however, it becomes a reasonable and just provision requiring tbe licensees to make compensation for all damage inflicted by their enterprise.

If authority be necessary to support this reasoning it may be found in U. S. v. Alexander, 148 U. S. 186, 13 Sup. Ct. 529, and tbe cases therein collated.

The ease of Huber v. Merkel, 111 Wis. 355, 94 N. W. 354, which touches upon the right of a property owner to ’ sink wells on his own land and allow the water to run away, although the flow of water in an adjoining owner’s well is thereby diminished, has no application here. In authorizing the erection of this dam the state could impose such terms as it chose, and the licensees must conform to them. They have no other rights save those which the legislature gives them.

By the Court. — Order afSrmed.

RoseNberry, J., took no part.  