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every reason why a water power thus created should belong to the public rather than to the riparian owners. Indeed, it seems to have been the practice, not only in New York but in Ohio, in Wisconsin, and perhaps in other States, in authorizing the erection of dams for the purpose of navigation or other public improvement, to reserve the surplus of water thereby created to be leased to private parties under authority of the State; and where the surplus thus created was a mere incident to securing an adequate amount of water for the public improvement, such legislation, it is believed, has been uniformly sustained. Thus, in Cooper v. Williams, 4 Ohio, 253, the law authorizing the construction of the Miami Canal, from Dayton to Cincinnati, empowered the canal commissioners to dispose of the surplus water power of the feeder for the benefit of the State, and their action in so disposing of the water was justified. The ruling was repeated in the same case, 5 Ohio, 391. In Buckingham v. Smith, 10 Ohio, 288, it was held that, if the water of private streams should be taken by the State for the mere purpose of creating hydraulic power, and rented to an individual, the transaction would be illegal, and no title would pass as against the owner; but it was intimated that in conducting water through a feeder, a discretionary power must necessarily rest in the agents of the State, and in making provision for a supply, it must frequently occur that a surplus will accumulate, and that such surplus might be subject to lease by the commissioners. In Little Miami Elevator Co. v. Cincinnati, 30 Ohio St. 629, 643, the right to lease surplus water for private use was recognized as an incident to the public use of a canal for the purpose of navigation; but it was held that such use was a subordinate one, and that the right to the same might be terminated whenever the State, in the exercise of its discretion, abandoned or relinquished the public use. It was doubted whether the State could, after abandoning the canal as a public improvement, still reserve to itself the right to keep up a water power solely for private use and as a source of revenue. "By so doing," said the court, "the water power would cease to be an incident to the public use, and the State would be engaged in the private enterprise of

Opinion of the Court.

keeping up and renting water power after it ceased to act as a government in keeping up the public use." The same ruling was made by this court in Fox v. Cincinnati, 104 U. S. 783. See also Hubbard v. City of Toledo, 21 Ohio St. 379. In Spaulding v. Lowell, 23 Pick. 71, 80, it was held that, where a town built a market house two stories high, and appropriated the lower story for a market, it being bona fide their principal and leading object in erecting the building, the appropriation of the upper story to other subordinate purposes was not such an excess of authority as to render the erection of the building and the raising of money there for illegal. Chief Justice Shaw, in delivering the opinion of the court, said: "If this had been a colorable act, under the pretence of exercising a legal power, looking to other and distinct objects beyond the scope of the principal one, it might be treated as an abuse of power, and a nullity. But we perceive no evidence to justify such a conclusion in the present case. The building of a market house was the principal and leading object, and everything else seems to have been incidental and subordinate.

If the accomplishment of the object was within the scope of the corporate powers of the town, the corporation itself was the proper judge of the fitness of the building for its objects, and it is not competent in this suit to inquire whether it was a larger and more expensive building, than the exigencies of the city required." See also French v. Inhabitants of Quincy, 3 Allen, 9. In Attorney General v. Eau Claire, 37 Wisconsin, 400, it was broadly held that where the State was authorized to erect and maintain a dam for a public municipal use, the legislature might also empower it to lease any surplus water power created by such dam. The ruling was repeated in State v. Eau Claire, 40 Wisconsin, 533.

The true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtaining a water power to lease to private individuals, or where in building a dam for a public improvement, a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement and a reasonable provision for securing an adequate supply of water at all times for such

Opinion of the Court..

improvement. No claim is made in this case that the water power was created for the purpose of selling or leasing it, or that the dam was erected to a greater height than was reasonably necessary to create a depth of water sufficient for the purposes of navigation at all seasons of the year. So long as the dam was erected for the bona fide purpose of furnishing an adequate supply of water for the canal and was not à colorable device for creating a water power, the agents of the State are entitled to great latitude of discretion in regard to the height of the dam and the head of water to be created; and while the surplus in this case may be unnecessarily large, there does not seem to have been any bad faith or abuse of discretion on the part of those charged with the construction of the improvement. Courts should not scan too jealously their conduct in this connection if there be no reason to doubt that they were animated solely by a desire to promote the public interests, nor can they undertake to measure with nicety the exact amount of water required for the purposes of the public improvement. Under the circumstances of this case, we think it within the power of the State to retain within its immediate control such surplus as might incidentally be created by the erection of the dam.

So far, however, as land was actually taken for the purpose of this improvement, either for the dam itself or the embankments, or for the overflow, or so far as water was diverted from its natural course, or from the uses to which the riparian owner would otherwise have been entitled to devote it, such owner is undoubtedly entitled to compensation. So far as concerns lots 6 and 7, no such compensation could be claimed, since the Supreme Court held, and we think correctly, that the release executed by Hunt to the Fox and Wisconsin Improvement Company in 1854, in which he granted to that company and its representatives "the right to erect and forever maintain an embankment of the dimensions as surveyed by the engineer of said company," operated as a surrender of all riparian rights appertaining to such lots not reserved in the instrument. No such grant, however, was proven to have been made with respect to lot 5, then owned by one Beardsley, to which the

Opinion of the Court.

Water Power Company now holds the title. Inasmuch as the dam abuts upon this lot, its owner was doubtless entitled to compensation for the land occupied by the dam and embankment, as well as for the value of the use of the water diverted from its natural course. The 17th section of the act of 1848 attempted to provide for such compensation by enacting that “when any lands, waters or materials, 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 shall take measures to secure the appointment of appraisers to assess the benefits or damages to the owner from the appropriation of the land, etc., with a further provision that if the damages exceeded the benefits it should be the duty of the board to direct the same to be paid "out of the fund appropriated to said improvements." It was held, however, by the Supreme Court of Wisconsin in Sweaney v. United States, 62 Wisconsin, 396, as well as in the present case, that it failed to give the land owner the right to institute condemnation proceedings under it to have his compensation determined; and, that if the State should institute such proceedings, the condemnation when determined was, by section 21 of the act, made payable out of the fund appropriated for such improvements, and for these reasons the

t did not make adequate provision for the compensation of the owners. The construction thus given to this act is obligatory upon this court.

In 1875, however, Congress passed an act, 18 Stat. 506, to aid in the improvement of the Fox and Wisconsin Rivers, the first section of which provided that "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 be ascertained," etc. It is claimed in this connection that there was nothing in the contract of purchase made between the government and the

Opinion of the Court.

Canal Company, by which the government was bound to pay anything for, or on account of, the property which it did not take and which was excepted in the deed; that the water power created by the Kaukauna dam, and by the use of the surpl is water not required for the purposes of navigation, was a part of the excepted property which the government did not purchase; that whatever title the Canal Company had to such water power and such surplus water at the time of its conveyance, it kept, and nothing more; that if its title was defective, or it had none, the government was in nowise bound to make the same good or supply it; and that to compel the government now to pay for the water power, would require it to make a payment it never assumed to make, and for property it had no title to or interest in. If there were anything in this point, it is one which should more properly be made by the government, and if the government has seen fit, as it did, to reimburse the riparian owners for all their damages, it comes with ill grace from the mouth of the Water Power Company to set up the exemption.

This construction, however, in our opinion is too narrow and technical. The only authority by which private property could be taken or overflowed was one derived from the State or general government; whatever appropriation was made, or injury done to such lands, was done solely for the benefit of the public, and it was right the public should pay the compensation therefor. There is no sound reason for a distinction in regard to compensation between the property conveyed and the property excepted from the conveyance the latter being a mere incident to the former. The Fox and Wisconsin Improvement Company, in receiving title from the State, did not undertake to reimburse the riparian proprietors for damages to their lands, and it was inequitable that it should be called upon to do so. It was said by this court in United States v. Jones, 109 U. S. 513, 514, speaking of the act of 1870 authorizing the purchase of the improvements: "Some of the dams constructed had caused the lands of several parties to be overflowed, and in the estimate of the amount to be paid by the United States no account was taken of the liability of the