a broad discretionary power to bring in parties. Schmuhl v. Milwaukee E, R. & L. Co., 156 Wis. 585, 146 N. W. 787; Kresge V. Maryland C. Co., 154 Wis. 627, 143 N. W. 668; Hemenway v. Beecher, 139 Wis. 402, 121 N. W. 150; Swanby v. Northern S. B. Co., 150 Wis. 572, 137 N. W. 763. We think all the districts should be made parties in the present action, and thus dispose of the whole controversy. It follows from what has been said that the judgment must be reversed. [4] 3. The important question in the case, however, is the apportionment between the four districts, and this question should be decided so that upon a new trial all questions may be settled and further litigation voided. It appears from the undisputed facts and the court below found: "That on the 20th day of June, 1913, the four assessors of said four assessment districts duly met at the office of the city clerk in said city of Hudson, for the purpose of assessing said electric light and power plant of said plaintiff for purposes of taxation, and found and placed the total assessed valuation of said property at $75,000, and valued and assessed the same at that amount. "That in apportioning said property among the four said assessment districts they valued the property located in the city of Hudson at $14,580, that amount being 19.44 per cent. of the total assessed valuation of $75,000. They found that the total business transacted by the company for the year 1912 was $20,262, and that is the correct amount of the business transacted by the company in all four districts, and it was found by said assessors, and the court here finds, that $19,363 of said business was transacted in the city of Hudson, and that said amount of business so transacted in the city of Hudson was 95.56 per cent. of the total business transacted by said company. That said assessors added the percentage of property in the city of Hudson to the percentage of business transacted in the city of Hudson; that is, they added said 19.44 per cent. to said 95.56 per cent., which gave a total of 115 per cent. of both property and business in the city of Hudson. They divided that amount, to wit, 115 per cent., by 2 which gave 57.5 per cent., and apportioned to the city of Hudson 57.5 per cent. of the assessed valuation of $75,000, making an assessed valuation apportioned by them to the city of Hudson of $43,132 and the assessors of said city of Hudson placed upon the assessment roll of said city of Hudson, against said plaintiff, on account of its said electric light and power plant, an assessed valuation of $43,132 which assessment was arrived at by the method above stated. "That on said assessed valuation there was placed upon the tax roll of the city of Hudson for said year 1913, against said plaintiff company, a tax amounting to $1,401.79, and on the 15th day of January, 1914, said assessed valuation and said tax based thereon appeared upon the tax roll in the hands of the city treasurer of said city as a personal property tax against said plaintiff company because of its said electric light and power plant." It is clear that the method of apportionment adopted by the assessors was not in compliance with the statute. Section 1037c, Stats. 1911, is as follows: "If the property or business of any such person, company or corporation extends into two or more districts the assessors of all the assessment districts in which any part of such property is located shall meet and assess all the property of such person, company or corporation, and extend on the assessment rolls of assessed valuation thereof properly belonging to their respective districts the proportion of the each. Such proportion shall be determined by the ratio which the property located and the business transacted in each district bears to the pany or corporation. The amount so assessed total property and business of such person, comshall be subject to the same tax rate as other property in said district." The assessors found that the total property of the plaintiff located in the city of Hudson was $14,580; that the total business transacted by the company in the city of Hudson was $19,363-aggregating $33,943, total property located and business done in the city of Hudson. The assessors also found that the total assessed valuation of the plaintiff's property in the four districts was $75,000, and the total business done, $20,262, making a total of property and business in the four districts of $95,262. Under the method of apportionment by the plain provisions of the statute the ratio should be obtained as follows: $33,943, the numerator, and $95,262 the denominator, of the fractional part of the total assessed valuation, $75,000, which should be apportioned to the city of Hudson. This fraction, reduced to a decimal, gives 35.63 per cent. of the total assessed valuation which should be apportioned to the city of Hudson. 35.63 per cent. of $75,000 gives the amount which should be assessed to the city of Hudson as $26,722.50. The assessors placed the amount at $43,132, an excess of about $16,409. It was stipulated and found that the rate of taxation in the city of Hudson for the year 1913 was 321⁄2 mills on the dollar. 321⁄2 mills of the excess of assessment in the city of Hudson would amount to about $533. Obviously the plaintiff did not consider that it was entitled to this amount, because judgment was taken for only $330.26. All the facts were admitted except the rate of taxation in the three districts not parties to the action. The material question here, therefore, is the proper method of apportionment, and the court is of opinion that the method adopted by the court below was the correct method and in accordance with the statute. The method adopted by the assessors does not determine the ratio which the property located and the business transacted in the city of Hudson bears to the whole property and business done. The language of the statute, "by the ratio which the property located and the business transacted in each district bears to the total property and business," is plain and unambiguous, and the court cannot disregard it. It follows from what has been said that on the main proposition, namely, the apportionment, the judgment of the court below was correct, but, because of other errors committed, the judgment must be reversed, and the other districts brought in by proper amendment and made parties to the action, to the end that their rights may be determined and such judgment rendered as shall set tle all the rights of the four districts involved in the matter. The judgment of the court below is reversed, and the cause remanded for further proceedings according to law and in accordance with this opinion; the appellant to recover costs in this court. which the property located and the business transacted in each district bears to the total property and business of such person, company or corporation." trict bear to the total of the property and the gross earnings of the entire plant, then the districts where there are no earnings whatever and the districts where the earnings are produced are given an equal proportionate share of the assessed value thereof. The object of providing a change in the method of assessment, as stated by the Commission to the Legislature, was to provide a method of apportionment of the assessed value of the entire plant, whereby the assessment district which produced the earnings should receive such a distributive share of the whole tax as the assessed property and the assessed gross receipts of each district jointly produced. This statute was intended to increase the tax receipts from these plants in the assessment districts which produced the earnings of the business, and this for the reason the Commission urged upon the Legislature that the revenue-producing districts established the actual value of the property of the entire physical plant, and hence the benefit of the tax due to earnings ought, in equity, to be received by the dis The words of the statute, to my mind, signify that the proportion shall be the ratio which the property located in each district and the business transacted in each district SIEBECKER, J. (dissenting). The trial bears to the total property and the total court's construction of section 51.44, Stats. business. What is this ratio? The business (1915) and the construction put upon it by referred to obviously means the gross earnthe Wisconsin Tax Commission differ vary ings, and so the Commission and the circuit materially, and the operative effect of the court interpreted the word. How then is statute under these two constructions pro- "the proportion of the assessed valuation duces widely different results in the amounts thereof properly belonging to each" district apportioned to the taxing districts into which to be calculated? If the apportionment be the property and business of the utility ex-made upon the ratio which the total of the tends. This difference in the result is shown property and the gross earnings of each disin the assessment of the plaintiff's utility for the year here in question in the city of Hudson. Under the Tax Commission's construction of the law $43,132 of the assessed valuation of plaintiff's plant was apportioned to the city of Hudson, and under the circuit court's construction of the law only $26,722.50 of such valuation is apportioned to the city of Hudson, resulting in a difference in plaintiff's tax in the city of Hudson for the year 1913 of $533.30. The Tax Commission has construed the law as it did in this instance since its enactment, and applied it, as so construed, for four years. Consequently, if this assessment is erroneous, then three other assessments are erroneous. The Commission's brief informs us that their method of apportionment has been carried out for four years in all assessments throughout the state, amounting to at least 2,000 district as sessments. It seems to me this practical construction of the law must be followed by the courts, if it is permissible, and thus avoid the perplexing and disastrous consequences of overturning the 2,000 or more tax levies and the tax payments in the different taxing districts that paid them. The Tax Commission tricts involved throughout the state. If a administered the law so as to accomplish this statute in its administration has received a result so far as practicable, and the adminpermissible and reasonable interpretation, istration of the law as here interpreted frusthen the courts adopt and follow that inter- trates this purpose and object of the Legispretation, though it may not be in harmony lature, in that it transfers the benefit of the with the meaning which the court finds the tax receipts from the district where the Legislature had in mind. I am of the opinion business is done to the district where there that there is no good ground for holding that is no business. It seems logical, reasonable, the Tax Commission gave this statute an in- and just in the light of the history of the terpretation out of harmony with or contrary legislation on the subject, that the factor of to the natural and ordinary meaning of its gross earnings should be treated of equal terms. Section 51, 43 Stats. (1915), declares importance with the factor of the physical that the property of water, light, heat, and property in determining a just distribution power plants conducted as public utilities, of the taxes realized from the enterprises, shall be deemed personal property for the and that the Tax Commission's method of purposes of taxation, and shall be assessed apportioning the tax was calculated on a as a single item. Section 51.44 Stats. (1915), ratio which complied with the terms of the provides for the assessment of such property, statute and which accomplished the result when located in two or more assessment dis- intended by the Legislature. But it is urged tricts, by the assessors of the districts at a that the Commission's interpretation of the joint meeting, and that the assessors shallstatute does violence to the language used, "extend on the assessment rolls of the respec- and is therefore not a permissible interpretative districts the proportion of the assessed valuation thereof properly belonging to each. Such tion of the statute. proportion shall be determined by the ratio statute is: The phrasing of the "Such proportion shall be determined by the ratio which the property located and the business transacted in each district bears to the total property and business of such person, company or corporation." The claim is that the terms in their grammatical construction and their ordinary significance express but the idea, namely, that the proportion must be the ratio which the property and the business in each district, when added together, bears to the total sum of the property and business of the whole plant. These terms of the statute, I think, do not, in their ordinary use and meaning, convey only such a restricted and narrow meaning, and should not be limited in their meaning to this precise mathematical formula adopted by the court. They logically and reasonably permit of the interpretation that the proportion shall be determined by the ratio which the property and the gross earnings in each district, taken separately, respectively bear to the property and gross earnings of the whole plant, and that the result thus obtained fixes the percentage for apportioning the total tax according to the taxable valuation of property and business in each district. This gives equal significance to the physical property and the gross earnings in determining the assessed value of the plant in the several districts into which it extends. Since this is, in my opinion, a proper and reasonable interpretation of the language of the statute, it seems to me that the court, in the light of the history of this legislation, showing the intent of the Legislature in enacting the law and the practical construction given it by the Tax Commission in harmony therewith, should follow the practical administration given it by the Tax Commission, which would prevent the disastrous results of invalidating the assessments in a large number of taxing districts in the state. I consider that the plaintiff's taxes were apportioned by the Commission according to law, and plaintiff's complaint in this action should be dismissed. WINSLOW, C. J. I concur in the foregoing dissenting opinion of Mr. Justice SIEBECKER. MARSHALL, J. I concur in the foregoing dissenting opinion of Mr. Justice SIEBECKER. the highways would not justify the expenditures so as to render the opening impracticable, since the use of the lake for boating, fishing, fowling, bathing, and cutting ice cannot be said to be incommensurate with the cost of opening the road. Cent. Dig. 88 26, 27, 111, 132-135; Dec. Dig. [Ed. Note-For other cases, see Highways, 42.] " 2. HIGHWAYS 46(1) ESTABLISHMENT BY STATUTE "PUBLIC LAND.' Sections of land which had been granted to a railroad company before Rev. St. § 2477 (U. way for public highways over public lands not S. Comp. St. 1913, § 4919), granting rights of reserved for public use, was made applicable by the territorial act now embodied in Pol. Code, 8.1594, declaring all section lines to be public highways, were not public lands and were not affected by those statutes. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 141-143; Dec. Dig. 46(1). For other definitions, see Words and Phrases, First and Second Series, Public Land.] 3. HIGHWAYS LINE OF TRAVEL. 5-PRESCRIPTION-INTENT section line on a highway and where the latter Travel by the public between a point on a line crosses the section line, which travel was not shown to have followed the section line or any definite route, but to have taken the most convenient route, is not sufficient to establish a highway by prescription. 5.] [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 6, 7; Dec. Dig. 4. HIGHWAYS WIDTH. 47-GRANT BY STATUTE Pol. Code, § 1596, which was originally part of an act relating only to section line highways, provides that such highways be 68 feet wide, and shall be taken equally from each side of the section lines unless changed. Secthan 66 feet wide, and that the order for laying tion 1626 provides that no road shall be less any highway must specify the width. At the time the act establishing the highways along section lines became effective, the parts of sections along the one side of the section line had been granted to a railroad, but the sections on the other side were still public lands. The supervisors attempted to lay out a highway 66 the owner of the lands brought suit to restrain feet wide on each side of the section line, and them. Held, that section 1626 did not apply to section line highways and that section 1596 did not indicate an intention not to use a highway 33 feet wide on one side of a section line where the line on the other side was privately owned, and plaintiff was entitled therefore to have the opening of the highway restrained only in so far as it crosses the privately owned sections. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 147-150; Dec. Dig. 47.] Appeal from Circuit Court, Deuel County; C. G. Sherwood, Judge. Action by Henry D. Sample against Joseph Harter and others, as supervisors of the SAMPLE v. HARTER et al. (No. 3810.)* township of Altamont, Deuel county, and an(Supreme Court of South Dakota. 1916.) March 16, 1. HIGHWAYS 42-OPENING PRACTICABILITY. Under Pol. Code, § 1594, declaring that section lines shall be public highways as far as practicable, the fact that the highways proposed to be opened up each led only to a large, deep, and permanent lake, which had been meandered, and therefore belonged to the state for the benefit of all the people, does not show that the benefit to accrue from the opening of other. Judgment for the defendants, and plaintiff appeals. Modified and remanded. Geo. H. Marquis, of Watertown, for appellant. T. J. Law and W. W. Knight, both of Clear Lake, for respondents. POLLEY, P. J. Plaintiff instituted this action for the purpose of enjoining the defendants (acting as the board of supervis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ors of Altamont township in Deuel county) | road from South Coteau Lake to Coteau Isfrom opening a road from the northeast corner of section 20 and the northwest corner of section 21, along the section line between said sections to its intersection with the north side of Coteau Island Lake; and also a road from the southeast corner of section 29 and the southwest corner of section 28, along the section lines between said sections to its intersection with the south side of South Coteau Lake. A reference to the following diagram will aid in understanding the facts: land Lake, along the section lines between enjoining the plaintiff from obstructing or interfering with the said "highway." Section 1594, Pol. Code provides: "All section lines shall be, and are hereby declared public highways as far as practicable. The plaintiff is the owner of lot 1, in sec- | ants, and entered a decree, restraining and tion 21, of the S. W. 4 of the S. W. 4, and lot 7 in section 28, and of lot 8 in section 29. So that, in order to open up the road between sections 20 and 21, defendants intend to appropriate a strip of land (claimed by plaintiff) 33 feet wide along the west side of lot 1 in section 21, and, for the road between It is contended by appellant that the secsections 28 and 29, a strip of land (claimed tion lines here involved are not practicable by him) 66 feet wide along the line between for use as highways. This contention is basthose sections. Defendants were attempting ed upon the grounds that said roads lead to to open said roads under the authority of no other place or objective point than the section 1594, Pol. Code, and section 2477, said lakes, and that the public has no ownerRev. Stat. U. S. (U. S. Comp. St. 1913, 8 ship or beneficial interest in said lakes that 4919). would warrant the expenditure necessary [1] Defendants do not intend to open a to make said highways passable. With this [3] As to the line between sections 28 and 29, an attempt was made to show the establishment of a road by prescription, and, upon this subject, the trial court made the following finding of fact: contention we cannot agree. Conceding, as | grants. This proposition is too elementary claimed by appellant, that said lakes can be to require the citation of authority. From used by the public for no purposes other this it follows that defendants were not than boating, fishing, fowling, bathing, and authorized by section 1594, Pol. Code, to aptaking ice, we cannot say that the benefits propriate any portion of these two sections to be derived therefrom are not commensu- for highway purposes; and, as to the strip rate with the cost of making said section of land 33 feet wide, along the west side of lines available for public travel. The fact lot 1, in section 21, no authority or right that said lakes are "large, deep, and perma- of appropriation is shown, or attempted to be nent" places them in the class designated as shown, from any other source. navigable lakes. In Flisrand v. Madson, 35 S. D. 457, 152 N. W. 796, and Anderson v. Ray (S. D.) 156 N. W. 591, it was held by this court that lakes of this description belong to the state, for the benefit of all the people. Such lakes are "public waters," and ought to be preserved by the state for public uses. Upon the question of practica-southwest corner of said section 28 and southbility, it was shown that the land along these section lines is somewhat hilly in places, and in other places wet and marshy during wet seasons, but there does not seem to be any serious obstacle in the way of public travel or obstacles that cannot be removed at a reasonable expense, and we believe that the trial court was warranted in finding, as it did, that these section lines are practicable for public uses. [2] This brings us to the second and more difficult branch of the case. It is contended by appellant that section 2477, Rev. Stat. U. S., and section 1594, Pol. Code, do not apply to these section lines, and that they can be appropriated for use as highways only by proceeding in the manner marked out by the statute for that purpose. This contention is based upon the following fact as found by the trial court: "That all of sections 21 and 29 were and are a part of the lands granted by the United States to the territory of Minnesota, by act of Congress approved March 3, 1857" said sections 28 and 29, running from the "That the part of said section line between east corner of said section 29, north to the waused and traveled by the public from the year ters of South Coteau Lake, was continuously 1880 to the time a fence was built across the same, about the year 1902; and, if not ob would still be used and traveled by the public." structed by said fence, said section line highway Appellant excepts to this finding of fact on the ground that it is not supported by the evidence. There was testimony to the effect that, as far back as 1880, there was some travel from the road along the south side of sections 28 and 29 to South Coteau Lake and around the east side of that lake, but it does not appear that this travel was confined to the section line or to any particular or defined roadway. While much of this travel appears to have turned off from the east and west road at or about the section corner, it does not appear to have followed any defined roadway from that point to the south side of the lake. There is a slough or marsh on the section line between said section corner and the lake that could not be crossed except when frozen or very dry, and it was necessary, in going from the section corner to the lake, to go either to the east or to the west side of this marsh; and it does not appear that any one that went around this marsh, either to the east or west side, followed the edge of the same until he reached the section line and then followed the section line to the lake; nor is there any satisfactory evidence that there ever was any travel along the section line between the marsh and the lake. It is plain that people traveling back and forth between the east and west road and the lake follow -to aid in the construction of what was afterward known as the Winona & St. Peter Railroad; and it may be added that plaintiff acquired his title through this grant. The act of Congress granting the right of way for the construction of highways over public lands not reserved for public uses, and now embodied in section 2477, Rev. Stat. U. S., was not enacted until July 26, 1866, and did not go into effect, so far as lands in South Dakota are concerned, until January 12, 1871, when the territorial Legislature enacted the law, now embodied in section 1594, Pol. Code, declaring that all section lines ed the route that was most convenient at shall be highways. Wells v. Pennington the particular time, and without any referCounty, 2 S. D. 1, 48 N. W. 305, 39 Am. ence to the said section line. In our opinSt. Rep. 758. This being long after sections ion, the evidence is not sufficient to show the 21 and 29 had been granted to the said establishment of a highway from the southrailroad company, these two sections were east corner of section 29 to South Coteau not "public lands," in the sense in which that Lake; and it is not necessary to consider term is used in section 2477 at the time that the effect of section 1632 of the Pol. Code. statute was enacted. The government had [4] But it does not necessarily follow that already divested itself of title to these two the judgment appealed from must be reverssections, and it could not burden them with ed. The railroad grant above referred to a right of way for highways by subsequent does not affect sections 20 or 28, and, under |