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Statement of the Case.

foreclosed for the purpose of paying the State indebtedness and the bonds issued under the mortgage, as well as those secured by the trust deed; and the property upon such foreclosure was sold to a committee, which subsequently became incorporated under the name of the Green Bay and Mississippi Canal Company, plaintiff in this suit, which in this manner became seized in fee of all the improvements, and all the rights, powers and privileges connected with the improvement company, including the dam and canal and all the hydraulic power thereby furnished and the mill lots connected therewith. Plaintiff entered into possession of this property and spent considerable sums in improving, repairing and operating such works of improvement. Finding its expenses largely exceeded the revenue derived from it, an act of Congress was procured in 1870, authorizing the Secretary of War to ascertain the amount which ought to be paid to the plaintiff for its property and rights in the canal, which amount, being subsequently settled by a board of arbitration, a deed was made to the United States of the entire property, with a reservation of the water power created by the dam, and by the use of the surplus water not required for the purposes of navigation, with the rights of protection and reservation appurtenant thereto, and the land necessary to the enjoyment of the same, and acquired with reference to such use.1

1 On the 3d of March, 1875, Congress enacted: "That whenever, in the prosecution and maintenance of the improvement of the Wisconsin and Fox Rivers in the State of Wisconsin, it becomes necessary or proper in the judgment of the Secretary of War to take possession of any lands, or the right of way over any lands, for canals and cut-offs, or to use any earthquarries or other material lying adjacent or near to the line of said improve. ment and needful for its prosecution or maintenance, the officers in charge of said works may, in the name of the United States, take possession of and use the same, after first having paid or secured to be paid the value thereof, which may have been ascertained in the mode provided by the laws of the State wherein such property lies. In case any lands or other property is now or shall be flowed or injured by means of any part of the works of said improvement heretofore or hereafter constructed for which compensation is now or shall become legally owing, and in the opinion of the officer in charge it is not prudent that the dam or dams be lowered, the amount of such compensation may be ascertained in like manner. 18 Stat. 506, c. 166, § 1.

Statement of the Case.

The dam which furnishes such hydraulic power rests upon the south side of the river on lot 5 of the government survey, which lot in its natural condition was low and scarcely raised above the surface of the water in the river at its natural stage. In order to maintain a head of water in the pond for the purpose of navigation or hydraulic power, it was necessary to build an embankment about ten feet high, and of a thickness and strength sufficient to hold the water in the pond; such embankment was built and extended across the fronts of lots 5, 6 and 7, shortly before the construction of the dam. This lot number 5 was entered by one Denniston in 1835. afterwards assigned his duplicate therefor to one Hathaway, who received a patent from the United States, August 10, 1837. His title, through several mesne conveyances, became vested in the Water Power Company, May 14, 1880, but no authority was ever obtained from the owner of this lot to erect or abut the dam upon it, or to build an embankment upon it, and no condemnation proceedings under the act of 1848 to obtain an appraisal of damages to such lot were proved at the trial. Lots 6 and 7, also originally entered by Denniston, lie immediately above lot 5, and in their natural state were also low and flat. In 1854, one John Hunt, then the owner in fee of these lots, granted to the improvement company, its successors and assigns, the right to erect and forever maintain an embankment of the dimensions as surveyed by the engineer of said company, reserving the right to "myself to use said embankment when completed, but not so that the same shall be injured through lots 6 and 7; also the privilege of excavating a ditch along the south or east side of said embankment, not exceeding three feet in width." Under and by virtue of such grant, the improvement company built the embankment, and dug the ditch, and the same have ever been maintained under and by virtue of such grant and the legislative act of 1848.

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The defendant, the Kaukauna Water Power Company, claiming to own that part of lots 5, 6 and 7, adjacent to Fox River, by purchase of lot 5 from one Beardsley and of lots 6 and 7 from Hunt in 1880, began to excavate and build a canal upon these lands, in order to draw water from the pond on the south

Statement of the Case.

side, and use the same for hydraulic purposes, when plaintiff gave notice in writing of its claim to such hydraulic power, stating that it would resist the breaking of such embankment and the drawing of water from the pond, thereby depriving plaintiff of the use thereof, and of the control of and dominion over the same. The other defendants claimed the right to use the water from the canal of the Water Power Company under, and as tenants of such company. The complaint was dismissed by the Circuit Court, and an appeal taken to the Supreme Court of the State, by which the decree of the Circuit Court was reversed, and the case remanded to that court with instructions to enter judgment for the plaintiff, and for an injunction against the defendants restraining them from drawing any water from the pond maintained by the dam for hydraulic purposes. From the decree so entered by the Circuit Court

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the Kaukauna Water Power Company and the other defendants sued out this writ of error, claiming that there was drawn in question the validity of a statute of the State, and of an authority exercised under the State, upon the ground of their

Argument for Plaintiffs in Error.

repugnance to the Constitution of the United States.

tion to dismiss the writ of error upon the ground that no Federal question was involved was postponed to a consideration of the case upon the merits.

Mr. David S. Ordway (with whom was Mr. Alfred L. Cary) for plaintiffs in error.

I. The question, as to whether the use was for a public or private purpose, is open here for discussion, notwithstanding the fact that this court usually adopts the construction put upon a state statute by the court of last resort of the State where enacted. Jefferson Branch Bank v. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; McMillen v. Anderson, 95 U. S. 37; Yick Wo v. Hopkins, 118 U. S. 356; Crowley v. Christensen, 137 U. S. 92; Gormley v. Clark, 134. U. S. 348; Chicago, Milwaukee &c. Railway v. Minnesota, 134 U. S. 418; Minneapolis Eastern Railway v. Minnesota, 134 U. S. 467; Johnson v. Risk, 137 U. S. 306.

II. The Kaukauna Company was possessed of the property of which it claims to have been illegally deprived, and that property extended to the centre line, or thread, of the river. Jones v. Pettibone, 2 Wisconsin, 308; Olson v. Merrill, 42 Wisconsin, 203; Norcross v. Griffiths, 65 Wisconsin, 599; State v. Carpenter, 68 Wisconsin, 165; Chandos v. Mack, 77 Wisconsin, 573; Walker v. Board of Public Works, 16 Ohio, 540; June v. Purcell, 36 Ohio St. 396.

By reason of ownership of the bank and of the bed of the stream, the company was the owner of the use, while passing, of all of the water which might flow over the bed of the stream; in other words, was the owner of all of the water power which could be utilized upon its land. Webb v. Portland Manufacturing Co., 3 Sumner, 189; Stillman v. White Rock Manufacturing Co., 3 Woodb. & Min. 538; Parker v. Griswold, 17 Connecticut, 288; S. C. 42 Am. Dec. 739; Cooper v. Williams, 5 Ohio, 391; S. C. 24 Am. Dec. 299; Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 75 Wisconsin, 385.

Argument for Plaintiffs in Error.

It could erect and maintain a dam upon its own land across the stream, although navigable, unless the United States, the State of Wisconsin, or some party acting under them, for the protection of navigation, objected. Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Wetmore v. Brooklyn Gas Light Co., 42 N. Y. 384; Chenango Bridge Co. v. Paige, 83 N. Y. 178; Roe v. Strong, 107 N. Y. 350; Harvard College v. Stearns, 15 Gray, 1; Boom Co. v. Patterson, 98 U. S. 403.

If the Water Power Company was so possessed of the south bank and the bed of the stream to its centre, with the right to construct such a wing-dam and canal, certainly the State, by the exercise of its undoubted power in the improvement of navigation, forestalled the Water Power Company, and by the erection of the dam in question deprived it of the opportunity of improving and utilizing its water power. The necessity for and object of the embankment was to prevent the overflow of the river and escape of the water; it was a mere continuation of the dam up stream upon the surface of the land of the Water Power Company. The right to place it there could only be acquired by purchase or condemnation. Pumpelly v. Green Bay Co., 13 Wall. 166.

In such case the riparian proprietors retain the ownership of the soil, subject to the public easement, unless the language of the statute shows an intention to take the fee for the purpose of the act; the rule being, that in the absence of express words, the courts do not infer that a statute of this kind gives to the public or to a board of conservators or navigation companies, acting in the public interest, a greater interest in the soil than is necessary for the purpose of navigation." See Lee Conservancy Board v. Button, 12 Ch. D. pp. 400, 401, James, L. J.

III. If taking the property of the Water Power Company was for a private purpose, there will be no dispute but that the law of 1848 was void, because in conflict with the provisions of the Fourteenth Amendment to the Constitution of the United Osborn v. Hart, 24 Wisconsin, 89; Cole v. La Grange, 113 U. S. 1; Matter of Deansville Cemetery Assn., 66 N. Y.

569.

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