## Facts

- George Apfelbacher owned and operated a gristmill and dam on the Bark River about one mile downstream from the outlet of Lake Nagawicka in Waukesha County, Wisconsin.
- Ephraim (Humphrey) Humphrey owned and operated an upstream gristmill and dam at the lake outlet; his mill and water-power rights were older than Apfelbacher’s.
- For more than 20 years before 1906, both mills operated practically daily, and the natural flow between them permitted Apfelbacher to run his mill continuously.
- Apfelbacher’s lower millpond was about 25 acres and stored only enough water to run his mill for a few hours without continued inflow.
- In 1906, the State established a fish hatchery below Lake Nagawicka using multiple ponds supplied by lake water, including a 12-inch pipe drawing water from the lake; water ultimately returned to the Bark River above Apfelbacher’s dam after losses from seepage and evaporation.
- In a 1906 written contract, Humphrey allowed the State to install and maintain the 12-inch pipe and to draw water for the hatchery; the agreement also required Humphrey to cease mill operations if the lake level receded beyond a specified amount due to hatchery use.
- After the hatchery began operations, the State’s diversion and Humphrey’s altered operations reduced downstream flow and significantly interfered with Apfelbacher’s mill operation.
- Apfelbacher brought an equitable action seeking injunctive relief against the State and Humphrey; the circuit court found the hatchery use unreasonable and granted an injunction.
- On appeal, the record contained only pleadings, findings of fact, and the judgment; no bill of exceptions was filed.

## Issues

1. Whether the State’s diversion and use of water from Lake Nagawicka for a fish hatchery, undertaken with the upstream riparian’s consent, constituted an unreasonable riparian use that unlawfully interfered with a downstream mill’s established water-power use.
2. Whether, given the limited appellate record (pleadings, findings, and judgment only), the injunction against the State and the upstream mill owner could be sustained.

## Decision

- The Wisconsin Supreme Court affirmed the judgment granting injunctive relief to Apfelbacher.
- Because no bill of exceptions was filed, the court treated the trial court’s findings as supported by the evidence and reviewed only whether the judgment was warranted by those findings.
- The findings supported that the hatchery diversion and related operational changes unreasonably diminished flow and substantially interfered with Apfelbacher’s downstream water-power use.
- The contract between the State and Humphrey did not justify the resulting injury to Apfelbacher’s riparian rights.

## Legal Principles

- In the absence of a bill of exceptions, appellate review is confined to whether the judgment is supported by the trial court’s findings; the findings are taken as established for purposes of review.
- Riparian use, including use by the State for public purposes, must be reasonable and may not substantially and unreasonably impair another riparian owner’s lawful use of the watercourse.
- A private agreement between riparian owners authorizing diversion or regulating dam operations cannot authorize unreasonable interference with the riparian rights of a nonconsenting third party.
- Injunctive relief may be available to restrain ongoing unreasonable interference with riparian rights even where damages remedies against the State may be limited.

## Conclusion

The court affirmed an injunction restraining the State’s fish-hatchery water diversion and the upstream riparian’s cooperative operations because, as found by the trial court and treated as binding on the limited record, the combined conduct unreasonably reduced the downstream flow and substantially interfered with the downstream mill owner’s established water-power use.


State v. Apfelbacher, 167 Wis. 233, 167 N.W. 244 (1918)