Syllabus. pany. The lines of the lands under the water have not been run, but are easily traceable by reference to the lines actually surveyed. The possession of the lands under the lake appears to have always accompanied the possession of the lands on its border. No contest was made against their recovery if a right of possession was shown to the border lands. From the view of the interest conveyed by the grant which we have expressed, we are satisfied that the company could maintain an action for the possession of the premises in controversy, and that its lessee, the plaintiff herein, was possessed of the same right. The judgment must, therefore, be Affirmed. KAUKAUNA WATER POWER COMPANY v. GREEN BAY AND MISSISSIPPI CANAL COMPANY. ERROR TO THE CIRCUIT COURT OF OUTAGAMIE COUNTY, WISCONSIN. No. 65. Argued October 30, November 2, 1891. - Decided December 21, 1891. If the adjudication of a Federal question is necessarily involved in the disposition of a case by a state court, it is not necessary that it should appear affirmatively in the record, or in the opinion of that court, that such a question was raised and decided. Proceedings under a state statute enacted before the adoption of the Fourteenth Amendment which, if taken before its adoption, would not have violated the constitution, may, when taken after its adoption, violate it. if prohibited by that amendment. In Wisconsin the ownership of riparian proprietors extends to the centre or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels; and the law, so settled by the highest court of the State, is controlling in this court as a rule of property. A state legislature may authorize the taking of land upon or riparian rights in a navigable stream for the purpose of improving its navigation, and if a surplus of water is created, incident to the improvement, it may be leased to private parties under authority of the State, or retained within control of the State; but so far as land is taken for the purpose of the improvement, either for the dam itself or the embankments, or for the overflow, or so far as water is diverted from its natural course, or from Statement of the Case. the uses to which the riparian owner would otherwise be entitled to devote it, such owner is entitled to compensation. Where a statute for the condemnation of lands for a public use provides a definite and complete remedy for obtaining compensation, such remedy is exclusive. The act of March 3, 1875, 18 Stat. 506, c. 166, "to aid in the improvement of the Fox and Wisconsin Rivers, in the State of Wisconsin," provided a mode for obtaining compensation to persons injured by the taking of their land or their riparian rights in making such improvements; and, as it remained in force for thirteen years, it gave to persons injured a reasonable opportunity for obtaining such compensation, and if they failed to avail themselves of it, they must be deemed to have waived their rights in this respect. Such an owner, who fails to obtain compensation for the taking of his property for use in a public improvement, by reason of his own neglect in applying for it, cannot violently interfere with the public use, or divert the surplus waters for his own use. It is not decided whether or not a bill in equity, framed upon the basis of a large amount of surplus water not used, will lie to compel an équitable division of the same upon the ground that it would otherwise run to waste. Under the circumstances disclosed in this case, there was no takin; of the property of the plaintiff in error without due process of law. THE Court stated the case as follows: This was a complaint in the nature of a bill in equity filed in the Circuit Court of Outagamie County, Wisconsin, by the Green Bay and Mississippi Canal Company against the Kaukauna Water Power Company, and a number of other defendants, lessees and tenants of the Water Power Company, for the purpose of enjoining them from interfering with the plaintiff and its employés while engaged in maintaining, repairing and rebuilding a certain embankment and drain upon a certain lot of land upon the bank of the Fox River, in the State of Wisconsin, and from cutting, tearing away or removing such embankment or drain. The case made by the complaint, pleadings and evidence was substantially as follows: By an act approved August 8, 1846, 9 Stat. 83, c. 170, Congress granted certain lands to the State of Wisconsin, upon its admission into the Union, for the purpose of improving the navigation of the Fox and Wisconsin Rivers, the former of which is one of the navigable rivers of the State, having an Statement of the Case. average flow of 150,000 cubic feet per minute, and affording a water power of 300 horse power per foot fall. By an act approved June 29, 1848, Laws Wisconsin 1848, No. 2, p. 58, the legislature accepted the grant, and by a subsequent act entitled An act to provide for the improvement of the Fox and Wisconsin Rivers, and connecting the same by a canal," approved August 8, 1848, created a board of public works to superintend the construction of the improvements contemplated by the act of Congress. In this act (sec. 16) the legislature pro 1 One of the briefs for the plaintiffs in error cited the following sections of this statute. "SEC. 15. In the construction of such improvements the said board shall have power to enter on, to take possession of and use all lands, waters and materials, the appropriation of which for the use of such works of improvement shall in their judgment be necessary. "SEC. 16. When any land, waters or materials appropriated by the Board to the use of said improvements shall belong to the State, such lands, waters or materials, and so much of the adjoining land as may be valuable for hydraulic or commercial purposes, shall be absolutely reserved to the State, and whenever a water power shall be created by reason of any dam erected or other improvements made on any of said rivers, such water power shall belong to the State, subject to future action of the legislature. "SEC. 17. When any lands, waters or material appropriated by the board to the use of the public in the construction of said improvements shall not be freely given or granted to the State, or the said board cannot agree with the owner as to the terms on which the same shall be granted, the superintendent, under the directions of the board, shall select an appraiser, and the owner shall select another appraiser, who, together, if they are unable to agree, shall select a third neither of whom shall have any interest directly or indirectly in the subject matter, nor be of kin to such owner, and said appraisers, or a majority of them, shall proceed to hear testimony, and to assess the benefits or damages, as the case may be, to the said owner, from the appropriation of such land, water or materials, and their award shall be conclusive unless modified as herein provided. If the owner shall neglect or refuse to appoint an appraiser as herein directed, after ten days' notice of such appointment by the superintendent, then such superintendent shall make such appointment for him. SEC. 18. Either party may appeal from such award to the Circuit Court of the County in which the premises may be situated within thirty days after such award may be made and filed with the secretary of the board, and such appeal shall be tried by a jury as other cases commenced in said Circuit Court, and upon the finding of such jury judgment may be rendered in favor of either party, but no execution shall issue thereon against the State. Statement of the Case. vided that, "Whenever a water power shall be created by reason of any dam erected or other improvements made on any of said rivers, such water power shall belong to the State, subject to the future action of the legislature." The board was limited by the act, in their contracts and expenditures, to the proceeds of the sale of the lands granted by Congress. In 1851 the State made a contract with Morgan L. Martin for the improvement of the Fox River between Lake Winnebago and Green Bay. At Kaukauna in township 24 N., R. 18 E., were rapids in the Fox River, and the navigation at this point had to be improved by the construction of a dam across the river to secure slack water, and of a canal leading therefrom on the north side of the river to a point below the rapids. In 1853, the State of Wisconsin, finding itself unable to complete the improvement from the grant made to it, incorporated the Fox and Wisconsin Improvement Company, for the purpose of carrying forward the improvements of these rivers, and relieving the State of its indebtedness on account of the work already done, and from its liability upon its contracts not then executed. The grant was made upon condition that the company should file with the Secretary of State a bond for the vigorous prosecution of the improvement to completion, and for the completion of the same within three years. The bond was further conditioned to pay all the State's in "SEC. 19. An entry of such award, signed by the appraisers, or a majorIty of them, or certified by the Clerk of the Court, in case the same shall have been appealed and containing a proper description of the premises appropriated, the names of the persons interested, and the sum estimated for benefits or damages, shall be made in a book, to be kept by the secretary of the board. "SEC. 20. A transcript of such entry, signed in like manner, acknowledged or proved as a conveyance of land, shall be recorded in the office of the Register of Deeds of the County in which the premises are situated, and the fee simple of said premises shall thereupon vest in the State. "SEC. 21. If the damages exceed the benefits it shall be the duty of the board to direct the same to be paid out of the fund appropriated to said improvements; proof of such payment or the offer thereof in case the party entitled shall decline to receive the same, shall discharge the State and every person under its employ from any claim for such land, waters and materials appropriated as aforesaid." VOL. CXLII-17 Statement of the Case. debtedness and to save the State harmless from all liability growing out of the improvement. Having complied with all of these conditions, all of the dams, locks, water powers and other appurtenances of said works, and all the said rights, powers and franchises were passed to and vested in the Fox and Wisconsin Improvement Company. Pursuant to the conditions of this grant, the improvement company went on to complete the works as then contemplated, and in its prosecution of the same, in order to secure slack-water navigation around the rapids, in 1853, 1854 and 1855 built a dam at the head of the rapids, so as to raise the water about eight feet above the natural level, reaching from lot 5, section 22, south of the river, to section 24 north of the river, and also built a canal and locks on the north side of the river, reaching from the pond created by the dam to the slack water of the river below the rapids and below the dam. The south end of the dam abutted upon lot 5, now owned by the Canal Company. This dam was built and maintained by virtue of the act of the State, approved August 8, 1848, providing for the completion of such improvement, and there was no other authority for building or maintaining the same. The dam so constructed was maintained by the improvement company and its successor, the Green Bay and Mississippi Canal Company, until 1876, when the United States, having taken title to the improvement, built the new dam now in question, forty feet below the old one, and extended the embankment down the river to meet it. In the belief that it also owned the hydraulic power mentioned in the 16th section of this act, the improvement company bought lands adjacent to the canal for the purpose of rendering such power available. In order to raise funds for the completion of the work and the payment of the State indebtedness, it mortgaged the property to the amount of $500,000; and, also, under an act of the legislature of October, 1856, made a deed of trust to three trustees of all the unsold lands granted to the State in aid of the improvement, and of all the works of improvement constructed on the river, including the dams, locks, canals, water powers and other appurtenances. This trust deed was subsequently |