80
U.S. 166
December Term, 1871
ERROR to the Circuit
Court of the United States for the District of Wisconsin; the case being
thus:
The Constitution of
Wisconsin ordains that
'The property of no
person shall be taken for public use without just compensation therefore.'
167
With this provision in
force as fundamental law, one Pumpelly, in September, 1867, brought
trespass on the case against the Green Bay and Mississippi Canal Company
for overflowing 640 acres of his land, by means of a dam erected across
Fox River, the northern outlet of Lake Winnebago, by which, as the
declaration averred, the waters of the lake were raised so high as to
forcibly and with violence overflow all his said land, from the time of
the completion of the dam in 1861 to the commencement of this suit; the
water coming with such a violence, the declaration averred, as to tear up
his trees and grass by the roots, and wash them, with his hay by tons,
away, to choke up his drains and fill up his ditches, to saturate some of
his lands with water, and to dirty and injure other parts by bringing and
leaving on them deposits of sand, and otherwise greatly injuring him. The
canal company pleaded six pleas, of which the second was the most
important, but of which the fourth and sixth may also be mentioned.
This second plea was
divisible, apparently, into two parts.
The first part set up
(quoting it entire) a statute of Wisconsin Territory, approved March 10th,
1848, by which one Curtis Reed and his associates were authorized to
construct a dam across Fox River, the northern outlet of Winnebago Lake,
to enable them to use the waters of the river for hydraulic purposes.
The second section of
the act quoted read thus:
'Said dam shall not
exceed seven feet in height above high-water mark of said river:
Provided, that said dam shall not raise the water in Lake Winnebago above
its ordinary level.
'And the said Curtis
Reed and his associates, their heirs and assigns, shall be subject to, and
entitled to, all the benefit and provisions of the Act relating to Mills
and Mill-dams, approved January 13th, 1840.'
NOTE. -- "The
Act relating to Mills and Mill-dams, approved January 13th,
1840," thus referred to in the statute of 1848, as an act to which
Reed and his associates should be subject, was an act of Wisconsin which
provided a special remedy for persons whose lands were overflowed or
otherwise injured by mill-dams. Section 4 was as follows:168
"Any person whose
land is overflowed or otherwise injured by such dam may obtain
compensation therefore upon his complaint before the District Court for the
county where the land, or any part thereof, lies; provided, that no
compensation shall be awarded for any damages sustained more than three
years before the institution of the suit."
"Sections 5 to
27, inclusive, provided for the manner of prosecuting the suit, the form,
effect, and mode of enforcing the judgment, and for appeals and
proceedings thereon. Section 28 was thus:
"No action shall
be sustained at common law for the recovery of damages for the erecting,
maintaining, or using any mill or mill-dam, except as provided in
this act."
The plea, still
continuing its first part, averred that Reed and an associate commenced
the building of this dam; that by certain legislation of Wisconsin (now
become a State) it was afterwards adopted as part of the system of
improving the navigation of the Fox River, and became the property of the
defendants. The plea, after referring to the provisions of the act of
1848, averred
"That the said
dam was built to the same height and in the same manner, and to no greater
height and in no different manner from that duly authorized under and
according to the provisions aforesaid, and to no greater height than was
authorized by the act aforesaid, approved March 10th, 1848.
"That the said
dam has ever since been and is now continued and maintained at the same
and no greater height, and in the same and no different manner from that
to which and in which it was originally built and erected as
aforesaid."
In what might be
distinguished as its second part, the plea having set forth and pleaded in
the first, as already indicated, that the legislature of Wisconsin after
it had become a State passed an act to provide for the improvement of the
Fox and Wisconsin Rivers; that Doty and his associate accepted the terms
of the act; that under the act a board of public works was organized,
which, through Doty and his associate, built the dam -- went on
to say, that by subsequent legislation, in the years 1861 and 1866, the
present defendants were made a corporation under the laws of Wisconsin,
169 and became possessed of the "River Improvement," so
called, and of its dams, water-powers, 'also all other rights,
privileges, franchises, easements, and appurtenances of all kinds
described in the acts of the legislature of Wisconsin, &c., . . .
including the easement or right to overflow, as hereinafter mentioned.'
The plea then proceeded to say that by the act of building and completing
the dam, &c., and by means of the waters of Lake Winnebago, Reed and
Doty, and the State by its board of public works, did, as they lawfully
might do, seize, and, to the extent necessary and for the purposes of a
water-power and of the said improvement, take possession of the
lands and premises, trees, grass, herbage, drains, ditches, &c., in
the declaration mentioned, to the extent that the same were, as therein
alleged, destroyed, damaged, overflowed, saturated, and subverted, and
otherwise injured; that the seizure and taking possession were so made and
done under claim and color of right and title duly made by virtue of the
laws of Wisconsin, and that the defendant had done as lawfully it might.
THE FOURTH plea set
forth the legislation authorizing the erection of the dam and the
improvement of the river, the title of the defendant to the improvement
and its privileges and duties in relation thereto -- all as in
the second plea -- and alleged that the dam was completed in
the year 1852; that the State, by its board of public works, seized so
much of the plaintiff's land as was overflowed and as was necessary for
this improvement, and ever since the completion of the dam, in 1852, that
the State, its successors, and the defendant, had held, and that the
defendant now held the same; that such seizure was made under claim and
color of right and title, by virtue of the laws of Wisconsin; publicly and
notoriously, and with the knowledge and acquiescence of the plaintiff, and
under like claim and color, and in like manner had since been held; that
the plaintiff, at the time of such seizure, was seized in fee and was in
possession of the land described in the declaration, subject to the rights
acquired by the State by its seizure and possession; that
170 during all the said time -- i. e., since the completion
of the dam, in 1852 -- the plaintiff had been under no
disability which disabled him from bringing suit.
THE SIXTH plea alleged
that by the Ordinance of 1787, the act of Congress of August 7th, 1789,
the act establishing the territorial government of Wisconsin, the act
admitting the State of Wisconsin into the Union, the Constitution of the
State of Wisconsin, and the laws of the United States and of the State of
Wisconsin, it was declared that the navigable waters leading into the
Mississippi and St. Lawrence, and the carrying-places, &c.,
should be common highways and forever free; that the Fox and Wisconsin
Rivers and Lake Winnebago were and ever had been of the navigable waters
thus referred to; that the Fox River was a navigable water leading into
the St. Lawrence.
The plea then set out
the legislation in regard to the improvement, the incorporation of the Fox
and Wisconsin Improvement Company, the organization, incorporation, and
title of the canal company (the defendant), as set forth before, and
further alleged that the dam was built and maintained under the authority
of the laws of the United States and of the State of Wisconsin, and the
board of public works; that as constructed and maintained, it was and is
an essential portion of the works for the improvement of the navigability
of the Fox and Wisconsin Rivers, and to the proper development as common
navigable highways; that the ordinance, the laws of Congress and of the
State, granted and assigned to the defendant, the improvement and the
easement, right and privilege of overflowing, &c., the lands described
in the declaration, to the extent necessary to improve the navigability of
said rivers; that under a treaty with the Winnebago Indians, in 1832, the
United States patented certain land (of which the plaintiff's was a part)
to one Theresa Paquette; that she, the said Theresa and original grantor
of the lands described in the declaration, and all the subsequent grantees
thereof, including the plaintiff, purchased with full notice of, and
subject to, the easement 171
and right aforesaid; and which easement and right was granted to the State
prior to the original grant of title to plaintiff's land, which is alleged
to have been in 1849.
A general demurrer to
these three pleas being overruled by the court, the plaintiff brought the
case here.
Messrs. B. J. Stevens and H. L. Palmer, in support of the ruling
below:
I. The fact that our
dam causes an overflow, even if the fact were conceded, does not make us
liable anywhere. For the second section of the act of March 10th, 1848,
gave us a right to build a dam of seven feet, or of any greater height,
above high-water mark in Fox River, provided only that such dam did
not raise the water in Lake Winnebago above its ordinary level. And it
gave us a right to build to the seven feet, let the result be what it
might. This is the fair construction of the proviso. Now we have pleaded
that we built the dam just as the statute authorized us to build it; that
is to say, conceding an overflow, that we have built it seven feet high
and no more. These facts being admitted by the demurrer, the judgment was
properly given for the defendant.
Further than this, the
Mill-dam Act of 1840 having provided a special remedy for injuries
sustained by the owners of lands overflowed by mill-dams, the remedy
thus provided is the only one available to the land-owner, and
excludes all others.
II. Passing to the
second part of the plea, we come to a grave question in State
constitutional law; but here, too, we say that the plaintiff has no claim,
and that the demurrer was rightly overruled.
The Fox River being a
public navigable river, and a common public highway (as it will be
admitted in virtue of well-known public legislation to be), prima
facie and of common right belongs to the sovereign power. The lands of
individuals bounded on this public navigable river and on the lakes
through which it runs, and which form a part of it,
172 were indeed granted to those individuals by the State or National
government; but neither the State nor the government thereby divested
itself of the right and power of improving the navigation of the river,
and may improve it without liability for remote and consequential damages
to individuals.
In Lansing v. Smith,
[FN1] a statute of New York authorized the construction of a basin in the
Hudson at Albany, and erections whereby the docks, &c., of the
plaintiff were rendered inaccessible by vessels and much depreciated in
value. But it was determined that the act, although it provided no
compensation for such injury, was not unconstitutional, either as taking
private property for public use without compensation or as impairing the
obligation of contracts; that the plaintiff had not at common law, as
owner of the adjacent soil, nor by virtue of a grant from the State for
land under water opposite to the shore, and under which he claimed, a
right 'to the natural flow of the river with which the State had no right
to interfere by any erection in the bed of the river or in any other
manner.'
FN1 8 Cowen, 146.
The
doctrine of this case was followed in Pennsylvania, in McKeen v. The
Delaware Division Canal Company. [FN2] That was an action to recover
damages for injuries alleged to have been sustained by the plaintiff, by
reason of the erection by the defendant of a dam across the Lehigh River
for the purpose of improving the navigation of the river, which caused the
water to flow back into the plaintiff's mill‑race and thereby
injured his fall and water-power. The court held that this was but
the common case of a consequential injury, and that the injury 'which
followed the raising of the water in the stream to improve navigation was
not a taking of his property, but one merely consequential, which he must
suffer without compensation, unless the State should choose out of grace
to concede it.' 'Every one,' says the court, 'who buys property on a
navigable stream purchases subject to the superior rights of the
Commonwealth to regulate and 173
improve it for the benefit of all her citizens.' This same view is had in
numerous Pennsylvania cases; [FN3] and these cases are, we think, approved
by this court in Rundle v. Delaware and Raritan Canal Company. [FN4]
FN2 49 Pennsylvania
State, 424.
FN3
Monongahela Navigation Co. v. Coons, 6 Watts & Sergeant, 101;
Susquehanna Canal Co. v. Wright, 9 Id. 9; Henry v. Pittsburg and Alleghany
Bridge Co., 8 Id. 85; Monongahela Navigation Co. v. Coon, 6 Barr, 379;
Mifflin v. Railroad Co., 4 Harris, 182; New York and Erie R. R. Co. v.
Young, 9 Casey, 175; Monongahela Bridge Co. v. Kirk, 46 Pennsylvania
State, 112; Watson v. P. & C. R. R. Co., 1 Wright, 469; Shrunk v.
Schuylkill Navigation Co., 14 Sergeant & Rawle, 71
FN4 14 Howard, 80.
In Canal Appraisers v.
The People, [FN5] a New York case, it was determined that 'if, in the
improvement of the navigation of a public river, the waters of a tributary
stream are so much raised as to destroy a valuable mill site situated
thereon, and the stream be generally navigable, although not so at the
particular locality of the mill site, the owner is not entitled to damages
within the provisions of the canal laws, directing compensation to be made
for private property taken for public use.'
FN5 17 Wendell, 571.
To the same effect is
The People v. The Canal Appraisers, [FN6] decided in the same State by the
Court of Appeals, in 1865; Fitchburg Railroad Co. v. Boston and Maine
Railroad Co., [FN7] in Massachusetts; Hollister v. The Union Company,
[FN8] in Connecticut; Commissioners of Homochitto v. Withers, [FN9] in
Mississippi, and Hanson v. La Fayette, [FN10] in Louisiana.
FN6 33 New York, 461.
FN7 3 Cushing, 58.
FN8 9 Connecticut, 435.
FN9 29 Mississippi, 21.
FN10 18 Louisiana, 295.
But we must direct
particular attention to the Wisconsin case of Alexander v.
City of Milwaukee. [FN11] The plaintiff there owned lots on the
Milwaukee River, on which he had docks and a shipyard. The city of
Milwaukee, under legislative authority, constructed the existing 'straight
cut' harbor, for the purpose of improving navigation and promoting the
interests of commerce. By reason of the construction of the harbor, the
waters of the lake were from time to time driven through the cut and upon
and over the plaintiff's premises, washed away his buildings, materials,
and portions of the 174 lots,
and filled up the channel of the river opposite the plaintiff's premises,
so as to render it useless, and substantially destroyed his shipyard. The
action was to recover the damages thus sustained. The Supreme Court held
that the city was not liable for the consequential damages produced by the
improvement to property in the vicinity of such improvement, no part of
which was taken or used therefor; and 'that the making of a public
improvement in the vicinity of private property, which is incidentally
injured thereby, or diminished in volume, but no part of which is taken or
used for such improvement, is not a taking of private property for public
use within the meaning of the Constitution.'
FN11 16 Wisconsin, 247.
Thus it seems clear
that a State may, in the interest of the public, erect such works as may
be deemed expedient for the purpose of improving the navigation and
increasing usefulness of a navigable river, without rendering itself
liable to individuals owning land bordering on such river, for injuries to
their lands resulting from their overflow by reason of such improvements.
In this case, whatever
has been done by way of improving the Fox River; whatever has been done by
way of erecting and maintaining the dam in question, has been done by the
State itself or by its express authority. The defendant's lands have not
been taken or appropriated. They are only affected by the overflow
occasioned by raising the water in Lake Winnebago. Whatever may be the
extent of this injury, it is remote and consequential and without remedy.
III. The fourth and
sixth pleas involve in the main the same constitutional question as here
raised. The court will itself consider any points of difference.
Messrs. J. M. Gillet
and D. Taylor, contra.
Mr. Justice MILLER
delivered the opinion of the court.
The second plea, the
most important, is technically liable to the objection that it relies on
two substantially different grounds of defence, but as the demurrer was
general and 175 not special,
and as the part of it which sets up the first of these defences may be
treated as mere inducement to the other, we will consider whether there is
found in the plea any sufficient defence to the cause of action set out in
the declaration.
This first part of the
plea is clearly designed to present this defence, that the dam was
authorized by statute and built in conformity to the specific requirements
of the act, so that the defendants are not liable for exceeding the
authority which it conferred, and that for any injury to the plaintiff's
property arising from this lawful erection of the dam his only remedy was
the one provided in the act referred to, concerning mills and
mill-dams. As this enacted that persons whose lands were overflowed
might obtain compensation upon complaint before the District Court of the
county where the land lay, and that no action at common law should be
sustained for such damages, except as provided in the act; if the
remainder of the plea is good, it is a defence to the present suit. But
this part of the plea is defective in this. It is contended by the counsel
for the defendants that the second section of the act authorizes them to
build their dam seven feet above high-water mark of the river at all
events, and that the restriction that the water of the lake shall not be
raised above its ordinary level is only applicable to such raising, if the
dam should exceed the first limitation; while the counsel for the
plaintiff asserts that both limitations were effectual, and that if the
dam raised the water in the lake above its ordinary level the law was
violated, though it may not have reached the seven feet above
high-water of the river.
It will be seen that
the plea, in averring that the dam, when completed, was no higher than the
statute authorized, pleads a conclusion of law, and does not state the
facts on which the court can construe the law for itself and ascertain if
the fact pleaded is a good defence. This is bad pleading. It is also
liable to the objection that it does not either deny the allegation of the
declaration, that the dam raised the water in Winnebago Lake so as to
overflow the plaintiff's land, 176
nor admit that allegation and aver that they were authorized to do so by
the statute. But, as we are of opinion that the statute did not authorize
the erection of a dam which would raise the water of the lake above the
ordinary level, and as the plea does not deny that the dam of the
defendant did so raise the water of the lake, we must hold that, so far as
the plea relies on this statute as a defence, it is fatally defective.
But this same plea
further alleges that the legislature of Wisconsin, after it became a
State, projected a system of improving the navigation of the Fox and
Wisconsin Rivers, which adopted the dam of Reid and Doty, then in process
of construction, as part of that system; and that, under that act, a board
of public works was established, which made such arrangements with Reid
and Doty that they continued and completed the dam; and that, by
subsequent legislation, changing the organization under which the work was
carried on, the defendants finally became the owners of the dam, with such
powers concerning the improvement of the navigation of the river as the
legislature could confer in that regard. But it does not appear that any
statute made provision for compensation to the plaintiff, or those
similarly injured, for damages to their lands. So that the plea, as thus
considered, presents substantially the defence that the State of
Wisconsin, having, in the progress of its system of improving the
navigation of the Fox River, authorized the erection of the dam as it now
stands, without any provision for compensating the plaintiff for the
injury which it does him, the defendant asserts the right, under
legislative authority, to build and continue the dam without legal
responsibility for those injuries.
And counsel for the
defendant, with becoming candor, argue that the damages of which the
plaintiff complains are such as the State had a right to inflict in
improving the navigation of the Fox River, without making any compensation
for them.
This requires a
construction of the Constitution of Wisconsin; for though the Constitution
of the United States provides that private property shall not be taken for
public 177 use without just
compensation, it is well settled that this is a limitation on the power of
the Federal government, and not on the States. The Constitution of
Wisconsin, however, has a provision almost identical in language, viz.:
that 'the property of no person shall be taken for public use without just
compensation therefor.' [FN12] Indeed this limitation on the exercise of
the right of eminent domain is so essentially a part of American
constitutional law that it is believed that no State is now without it,
and the only question that we are to consider is whether the injury to
plaintiff's property, as set forth in his declaration, is within its
protection.
FN12 Sec. 13, Article 1.
The declaration states
that, by reason of the dam, the water of the lake was so raised as to
cause it to overflow all his land, and that the overflow remained
continuously from the completion of the dam, in the year 1861, to the
commencement of the suit in the year 1867, and the nature of the injuries
set out in the declaration are such as show that it worked an almost
complete destruction of the value of the land.
The argument of the
defendant is that there is no taking of the land within the meaning of the
constitutional provision, and that the damage is a consequential result of
such use of a navigable stream as the government had a right to for the
improvement of its navigation.
It would be a very
curious and unsatisfactory result, if in construing a provision of
constitutional law, always understood to have been adopted for protection
and security to the rights of the individual as against the government,
and which has received the commendation of jurists, statesmen, and
commentators as placing the just principles of the common law on that
subject beyond the power of ordinary legislation to change or control
them, it shall be held that if the government refrains from the absolute
conversion of real property to the uses of the public it can destroy its
value entirely, can inflict irreparable and permanent injury
178 to any extent, can, in effect, subject it to total destruction
without making any compensation, because, in the narrowest sense of that
word, it is not taken for the public use. Such a construction would
pervert the constitutional provision into a restriction upon the rights of
the citizen, as those rights stood at the common law, instead of the
government, and make it an authority for invasion of private right under
the pretext of the public good, which had no warrant in the laws or
practices of our ancestors.
In the case of
Sinnickson v. Johnson, [FN13] the defendant had been authorized by an act
of the legislature to shorten the navigation of Salem Creek by cutting a
canal, and by building a dam across the stream. The canal was well built,
but the dam caused the water to overflow the plaintiff's land, for which
he brought suit. Although the State of New Jersey then had no such
provision in her constitution as the one cited from Wisconsin, the Supreme
Court held the statute to be no protection to the action for damages.
Dayton, J., said 'that this power to take private property reaches back of
all constitutional provisions; and it seems to have been a settled
principle of universal law that the right to compensation is an incident
to the exercise of that power; that the one is inseparably connected with
the other; that they may be said to exist, not as separate and distinct
principles, but as parts of one and the same principle.' For this
proposition he cites numerous authorities, but the case is mainly valuable
here as showing that overflowing land by backing the water on it was
considered as 'taking' it within the meaning of the principle.
FN13 2 Harrison, New Jersey, 129.
In the case of Gardner
v. Newburgh, [FN14] Chancellor Kent granted an injunction to prevent the
trustees of Newburg from diverting the water of a certain stream flowing
over plaintiff's land from its usual course, because the act of the
legislature which authorized it had made no provision for compensating the
plaintiff for the injury thus done to his land. And he did this though
there was no provision in the 179
Constitution of New York such as we have mentioned, and though he
recognized that the water was taken for a public use. After citing several
continental jurists on this right of eminent domain, he says that while
they admit that private property may be taken for public uses when public
necessity or utility requires, they all lay it down as a clear principle
of natural equity that the individual whose property is thus sacrificed
must be indemnified. And he adds that the principles and practice of the
English government are equally explicit on this point. It will be seen in
this case that it was the diversion of the water from the plaintiff's
land, which was considered as taking private property for public use, but
which, under the argument of the defendants' counsel, would, like
overflowing the land, be called only a consequential injury.
FN14 2 Johnson's Chancery, 162.
If these be correct
statements of the limitations upon the exercise of the right of eminent
domain, as the doctrine was understood before it had the benefit of
constitutional sanction, by the construction now sought to be placed upon
the Constitution it would become an instrument of oppression rather than
protection to individual rights.
But there are unmerous
authorities to sustain the doctrine that a serious interruption to the
common and necessary use of property may be, in the language of Mr. Angell,
in his work on water-courses, equivalent to the taking of it, and
that under the constitutional provisions it is not necessary that the land
should be absolutely taken. [FN15] And perhaps no State court has given
more frequent utterance to the doctrine that overflowing land by backing
water on it from dams built below is within the constitutional provision,
than that of Wisconsin. In numerous cases of this kind under the Mill and
Mill-dam Act of that State this question has arisen, and the right
of the mill-owner to flow back the water has
180 been repeatedly placed on the ground that it was a taking of
private property for public use. It is true that the court has often
expressed its doubt whether the use under that act was a public one,
within the meaning of the Constitution, but it has never been doubted in
any of those cases that it was such a taking as required compensation
under the Constitution. [FN16] As it is the constitution of that State
that we are called on to construe, these decisions of her Supreme Court,
that overflowing land by means of a dam across a stream is taking private
property, within the meaning of that instrument, are of special weight if
not conclusive on us. And in several of these cases the dams were across
navigable streams.
FN15 Angell on Water-courses, § 465 a; Hooker v. New Haven
and Northampton Co., 14 Connecticut, 146; Rowe v. Granite Bridge Co., 21
Pickering, 344; Canal Appraisers v. The People, 17 Wendell, 604; Lackland
v. North Missouri Railroad Co., 31 Missouri, 180; Stevens v. Proprietors
of Middlesex Canal, 12 Massachusetts, 466.
FN16 Pratt v. Brown, 3 Wisconsin, 613; Walker v. Shepardson, 4 Id.
511; Fisher v. Horicon Iron Co., 10 Id. 353; Newell v. Smith, 15 Id. 104;
Goodall v. City of Milwaukee, 5 Id. 39; Weeks v. City of Milwaukee, 10 Id.
242.
It is difficult to
reconcile the case of Alexander v. Milwaukee, [FN17] with those just
cited, and in its opinion the court seemed to feel the same difficulty.
They assert that the weight of authority is in favor of leaving the party
injured without remedy when the damage is is inflicted for the public
good, and is remote and consequential. There are some strong features of
analogy between that case and this, but we are not prepared to say, in the
face of what the Wisconsin court had previously decided, that it would
hold the case before us to come within the principle of that case. At all
events, as the court rests its decision upon the general weight of
authority and not upon anything special in the language of the Wisconsin
bill of rights, we feel at liberty to hold as we do that the case made by
the plaintiff's declaration is within the protection of the constitutional
principle embodied in that instrument.
FN17 16 Wisconsin, 248.
We are not unaware of
the numerous cases in the State courts in which the doctrine has been
successfully invoked that for a consequential injury to the property of
the individual arising from the prosecution of improvements of roads,
streets, rivers, and other highways, for the public
181 good, there is no redress; and we do not deny that the principle
is a sound one, in its proper application, to many injuries to property so
originating. And when, in the exercise of our duties here, we shall be
called upon to construe other State constitutions, we shall not be
unmindful of the weight due to the decisions of the courts of those
States. But we are of opinion that the decisions referred to have gone to
the uttermost limit of sound judicial construction in favor of this
principle, and, in some cases, beyond it, and that it remains true that
where real estate is actually invaded by superinduced additions of water,
earth, sand, or other material, or by having any artificial structure
placed on it, so as to effectually destroy or impair its usefulness, it is
a taking, within the meaning of the Constitution, and that this
proposition is not in conflict with the weight of judicial authority in
this country, and certainly not with sound principle. Beyond this we do
not go, and this case calls us to go no further.
We are, therefore, of
opinion that the second plea set up no valid defence, and that the
demurrer to it should have been sustained.
The fourth plea
recites substantially the same statutes, and acts of the defendants and
their predecessors as the second plea, and avers that the dam was
completed to its present height in 1852, and that the defendants have ever
since had, used, and enjoyed the easement of overflowing the plaintiff's
lands with his acquiescence, and that they had done this under color of
right, and as they lawfully might do.
If this is intended as
a plea of prescription for an easement the time is not long enough. It
requires twenty years. If it is designed as a plea of disseizin it is bad,
because it avers that the plaintiff has all the time been seized in fee
and in possession of the land in controversy.
But the foundation of
the plea seems to be the authority conferred by the various statutes of
Wisconsin mentioned in the second plea. We have already held that the
defendants 182 were not
protected by the act of March 10th, 1848, because they exceeded the
authority conferred by it, and that, as to the plaintiff's rights, the
subsequent statutes were void because they contained no provision for
compensation. There is, therefore, no light in which we can view this
fourth plea that makes it a good one. The demurrer to it should have been
sustained.
The sixth plea, after
setting up all the matters alleged in the second, and also that by the
Ordinance of 1787 and the subsequent legislation of Congress, the
navigable streams of that territory were to be forever preserved as free
highways, then avers that the land of the plaintiff came to him through a
reservation in an Indian treaty in favor of one Therese Pacquett, who
received a patent from the United States in 1849. It is alleged that this
title came to the plaintiff burdened with an easement in favor of
improving the navigation of the Fox River, which authorized the injuries
complained of, and of which, therefore, he could not complain.
We do not think it
necessary to consume time in proving that when the United States sells
land by treaty or otherwise, and parts with the fee by patent without
reservations, it retains no right to take that land for public use without
just compensation, nor does it confer such a right on the State within
which it lies; and that the absolute ownership and right of private
property in such land is not varied by the fact that it borders on a
navigable stream.
The demurrer to this
plea should also have been sustained.
JUDGMENT REVERSED, and
the case remanded to the Circuit Court for further proceedings
NOT INCONSISTENT WITH THIS OPINION.
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