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12/19/75 DEGAYNER & COMPANY v. DEPARTMENT NATURAL

December 19, 1975

DEGAYNER & COMPANY, INC., APPELLANT,
v.
DEPARTMENT OF NATURAL RESOURCES, RESPONDENT



Appeal from a judgment of the Circuit Court for Dane County: W. L. Jackman, Circuit Judge.

Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is an appeal from a judgment of the circuit court which sustained the order of the Department of Natural Resources (DNR) which held that Five Mile Creek, a tributary of the Namekagon river in Bayfield county, was navigable in fact. We affirm.

The record indicates that DeGayner & Company, Inc., was the sole riparian owner of Five Mile Creek. We are concerned with the navigability of that portion which runs from new county trunk M to the confluence of Five Mile Creek with the Namekagon river. That straight-line distance is approximately one mile. These proceedings were initiated on December 1, 1972, by citizens who filed a petition with the DNR, asking that the DNR, pursuant to sec. 227.06, Stats., issue a declaratory order to decide whether certain portions of ch. 30 were applicable to Five Mile Creek.

The citizens' petition was impelled by the fact that DeGayner proposed the damming up of Five Mile Creek, the creation of an artificial lake, and the construction along its banks of approximately 500 housing units. If the stream is navigable, a permit must first be issued. Sec. 30.10 (2), Stats. At the hearing, the parties' counsel agreed that the applicability of the statutes was controlled by the central issue of whether the stream was navigable in fact. The finding that it was was affirmed by the circuit court for Dane county.

Although there was evidence produced at the hearing which would tend to show that the stream was navigable in fact, there was also a great deal of opinion testimony, primarily of employees of the DNR, that the stream was not navigable.

The test to be applied, however, is not whether there is a preponderance of evidence sufficient to sustain the findings of the DNR, but whether its finding was "nsupported by substantial evidence in view of the entire record as submitted." Sec. 227.20 (1) (d), Stats.

Robertson Transportation Co. v. Public Service Comm. (1968), 39 Wis. 2d 653, 159 N.W.2d 636, pointed out that a reviewing court, under that standard, may not reverse the administrative decision even though that decision is contrary to the great weight and clear preponderance of the evidence, if there is substantial evidence to support the finding.

More recently, the standards of review were reiterated in Daly v. Natural Resources Board (1973), 60 Wis. 2d 208, 219, 208 N.W.2d 839. Therein we said:

"'". . . The basic case is Gateway City Transfer Co. v. Public Service Comm. (1948), 253 Wis. 397, 34 N.W.2d 238. That case pointed out that in reviewing administrative decisions, 'substantial evidence' did not include the idea of this court weighing the evidence to determine if a burden of proof was met or whether a view was supported by the preponderance of the evidence. Such tests are not applicable to administrative findings and decisions. We equated substantial evidence with that quantity and quality of evidence which a reasonable man could accept as adequate to support a Conclusion. And, in this process, sec. 227.20 (1) (d), Stats., providing that the decision of an agency may be reversed if unsupported by substantial evidence in view of the entire record as submitted does not permit this court to pass on credibility or to reverse an administrative decision because it is against the great weight and clear preponderance of the evidence, if there is substantial evidence to sustain it.

"'". . .

"'"he term 'substantial evidence' should be construed to confer finality upon an administrative decision on the facts when, upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable man, acting reasonably, might have reached the decision; but, on the other hand, if a reasonable man, acting reasonably, could not have reached the decision from the evidence and its inferences then the decision is not supported by substantial evidence and it should be set aside."'"

The evidence adduced at the DNR hearing showed that Five Mile Creek in the one-mile segment under consideration was divisible into two approximately equal segments. The upper stream is a combination of beaver ponds and stream, and the lower portion is composed almost entirely of beaver ponds except for a few hundred feet, undisputably navigable, just upstream from the Namekagon river.

The appellant concedes that approximately 100 feet of the upper segment is navigable below the beaver dams. The testimony appears to be reasonably clear that the stream was navigable, but only because of the existence of beaver dams.

The testimony shows that several persons attempted to canoe downstream from new county trunk M, and it is undisputed that each canoeist succeeded in canoeing to a point identified as XR-O, a point in a straight line distance approximately one mile downstream from new county trunk M. In fact, no canoeist was unable to complete whatever journey was undertaken.

Thomas J. Rossberger testified that on April 30, 1972, he traversed the distance in his canoe with the exception of one short area, where he was obliged to drag the canoe. It is not argued that occasional shoal areas or "drag areas" make the stream nonnavigable, since the record was replete with evidence showing that even in large and admittedly ...


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