Steinle, J.
Appellants’ challenge is directed against the provisions in the ordinance which prohibit the use of the lake for bathing, boating, or swimming purposes. No attack is made upon the ordinance in so far as it prohibits the deposit[16]*16ing of refuse, decayed vegetable or animal matter, and the like in the lake, nor drainage therein from cesspools, sewage disposal units, and such.
Riparian owners have a right to the use of the shore line of their property. They also have a right to the reasonable use of the water of the lake. The latter right, like the former, is a property right. It carries with it the privilege to use the lake for bathing, swimming, and boating purposes.
Here, neither the appellants’ predecessor in title, nor appellants, ever divested themselves of the riparian rights. Under the grant to the city, riparian rights were reserved to the owner. It was expressly agreed that the riparian rights were not conveyed to the city.
Appellants contend that the city’s denial to them by ordinance of the use of the lake for bathing, boating, and swimming constitutes the taking of their property without due process and without compensation. They submit that under the contract they never surrendered any part of their riparian rights to the city, and that the city may not validly, under the guise of police power, extend the contractual rights acquired and exercised by it in its proprietary capacity. In the alternative, appellants maintain that were the ordinance to be declared valid, nevertheless, under the facts of the case, the ordinance constituted an unreasonable exercise of the police power of the city.
It is the city’s position that the parties to the grant intended that there be reservation to the grantor of the rights to the shore line, but not to the water of the lake. Further, the city submits, that its ordinance in all particulars, including the provisions which prohibit swimming, boating, and bathing is designed to keep the water of the lake uncontaminated, thereby protecting the city’s supply from contamination and safeguarding the public health. It is further [17]*17contended that the ordinance is valid, and that it does not constitute an unreasonable exercise of police power.
The trial court made no finding that the grantor reserved only the riparian right to the shore line and not to the water. There is no bill of exceptions.
In its memorandum decision the trial court cited and analyzed a number of cases from other jurisdictions in which the constitutionality of ordinances forbidding swimming and bathing in lakes and other waters used by municipalities for water-supply purposes, had been challenged. Amongst the cases noted by the.court were those of People v. Hulbert (1902), 131 Mich. 156, 91 N. W. 211; State v. Morse (1911), 84 Vt. 387, 80 Atl. 189; and State v. Heller (1937), 123 Conn. 492, 196 Atl. 337. In People v. Hulbert, the supreme court of Michigan held unconstitutional an ordinance which prohibited bathing in a lake lying wholly in the city of Battle Creek from which the city drew its water supply. The city was a riparian owner possessing 200 feet of lakeshore, the balance of the shore line being owned by private persons who used the lake for swimming, fishing, etc. In that case the court said (p. 173) :
“Each proprietor has an equal right to the use of the stream for the ordinary purposes of the house and farm, even though such use may in some degree lessen the volume of the stream, or affect the purity of the water. . . . This right is not affected by the fact that the lower proprietor is a municipality instead of an individual. . . .
. . It may be conceded that the police power of the state is very broad, but our attention has not been called to any principle of law, or to any case, the practical application of which will enable a village, city, or other municipality, for the purpose of obtaining a water supply, to prevent the ordinary and reasonable use of the waters of an inland lake or stream by an upper riparian proprietor, without the exercise of the right of eminent domain or without compensation.”
[18]*18In State v. Morse, the supreme court of Vermont held constitutional and valid an order of the state board of health which prohibited bathing and swimming in a navigable pond from which the city of Montpelier took its water supply. The shore line was occupied by the city and by a number of other owners. It was there stated that (p. 400) :
“Turning again to the case in hand we are not satisfied and cannot say that the regulation prohibiting bathing in Berlin pond was a palpable violation of respondent’s rights; nor can we, from the record aided by facts of which we may take judicial notice, say that such prohibition was unnecessary or unreasonable. On the contrary we take notice of the germ theory of disease, and that the human body may give off germs dangerous to the public health; and that should these reach the intake of the water supply, they might, as suggested by the state board, spread contagion throughout the city.”
In State v. Heller, the supreme court of Connecticut noted that upon substantially the same factual situations, the courts of Michigan and Vermont (in the cases above referred to) had reached diametrical opposite conclusions. The Connecticut court determined to follow the ruling of the-Vermont court. The report of the Connecticut case indicates that the defendant owned land across which flowed a creek that drained into a reservoir, the latter of which was used as a part of the city of Bridgeport’s water supply, being furnished through a utility. A statute prohibited anyone from bathing in a stream tributary to a reservoir from which a city obtained its water supply. The defendant was charged with violating the statute. He contended that as an owner of land abutting the stream he was unconstitutionally deprived of his property through the operation of the statute. The court sustained the constitutionality of the statute. In part it was said (pp. 494, 496) :
“It is unquestioned that the defendant as riparian owner had a right which included ordinary and reasonable bathing [19]*19privileges in this brook by himself, his family, and inmates and guests of his household. . . . [the statute] can only be sustained as an exercise of the state’s police power. Furthermore, it is not disputed that the object of the statute in question is to protect the health of citizens using water distributed through these reservoirs, and that thus its purpose affords a proper basis for the exercise of the police power inherent in the legislature. . . .
“ ‘, . . [the police power] may regulate any business or the use of any property in the interest of the public health, safety, or welfare, provided this be done reasonably. To that extent the public interest is supreme and the private interest must yield. Eminent domain takes property because it is useful to the public. The police power regulates the use of property or impairs the rights in property, because the free exercise of these rights is detrimental to public interest.’ ”
In the case at bar the city acts in a proprietary capacity in withdrawing water from the lake and in supplying its inhabitants with the water. In Eau Claire Dells Imp. Co. v. Eau Claire (1920), 172 Wis. 240, 179 N. W.
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Steinle, J.
Appellants’ challenge is directed against the provisions in the ordinance which prohibit the use of the lake for bathing, boating, or swimming purposes. No attack is made upon the ordinance in so far as it prohibits the deposit[16]*16ing of refuse, decayed vegetable or animal matter, and the like in the lake, nor drainage therein from cesspools, sewage disposal units, and such.
Riparian owners have a right to the use of the shore line of their property. They also have a right to the reasonable use of the water of the lake. The latter right, like the former, is a property right. It carries with it the privilege to use the lake for bathing, swimming, and boating purposes.
Here, neither the appellants’ predecessor in title, nor appellants, ever divested themselves of the riparian rights. Under the grant to the city, riparian rights were reserved to the owner. It was expressly agreed that the riparian rights were not conveyed to the city.
Appellants contend that the city’s denial to them by ordinance of the use of the lake for bathing, boating, and swimming constitutes the taking of their property without due process and without compensation. They submit that under the contract they never surrendered any part of their riparian rights to the city, and that the city may not validly, under the guise of police power, extend the contractual rights acquired and exercised by it in its proprietary capacity. In the alternative, appellants maintain that were the ordinance to be declared valid, nevertheless, under the facts of the case, the ordinance constituted an unreasonable exercise of the police power of the city.
It is the city’s position that the parties to the grant intended that there be reservation to the grantor of the rights to the shore line, but not to the water of the lake. Further, the city submits, that its ordinance in all particulars, including the provisions which prohibit swimming, boating, and bathing is designed to keep the water of the lake uncontaminated, thereby protecting the city’s supply from contamination and safeguarding the public health. It is further [17]*17contended that the ordinance is valid, and that it does not constitute an unreasonable exercise of police power.
The trial court made no finding that the grantor reserved only the riparian right to the shore line and not to the water. There is no bill of exceptions.
In its memorandum decision the trial court cited and analyzed a number of cases from other jurisdictions in which the constitutionality of ordinances forbidding swimming and bathing in lakes and other waters used by municipalities for water-supply purposes, had been challenged. Amongst the cases noted by the.court were those of People v. Hulbert (1902), 131 Mich. 156, 91 N. W. 211; State v. Morse (1911), 84 Vt. 387, 80 Atl. 189; and State v. Heller (1937), 123 Conn. 492, 196 Atl. 337. In People v. Hulbert, the supreme court of Michigan held unconstitutional an ordinance which prohibited bathing in a lake lying wholly in the city of Battle Creek from which the city drew its water supply. The city was a riparian owner possessing 200 feet of lakeshore, the balance of the shore line being owned by private persons who used the lake for swimming, fishing, etc. In that case the court said (p. 173) :
“Each proprietor has an equal right to the use of the stream for the ordinary purposes of the house and farm, even though such use may in some degree lessen the volume of the stream, or affect the purity of the water. . . . This right is not affected by the fact that the lower proprietor is a municipality instead of an individual. . . .
. . It may be conceded that the police power of the state is very broad, but our attention has not been called to any principle of law, or to any case, the practical application of which will enable a village, city, or other municipality, for the purpose of obtaining a water supply, to prevent the ordinary and reasonable use of the waters of an inland lake or stream by an upper riparian proprietor, without the exercise of the right of eminent domain or without compensation.”
[18]*18In State v. Morse, the supreme court of Vermont held constitutional and valid an order of the state board of health which prohibited bathing and swimming in a navigable pond from which the city of Montpelier took its water supply. The shore line was occupied by the city and by a number of other owners. It was there stated that (p. 400) :
“Turning again to the case in hand we are not satisfied and cannot say that the regulation prohibiting bathing in Berlin pond was a palpable violation of respondent’s rights; nor can we, from the record aided by facts of which we may take judicial notice, say that such prohibition was unnecessary or unreasonable. On the contrary we take notice of the germ theory of disease, and that the human body may give off germs dangerous to the public health; and that should these reach the intake of the water supply, they might, as suggested by the state board, spread contagion throughout the city.”
In State v. Heller, the supreme court of Connecticut noted that upon substantially the same factual situations, the courts of Michigan and Vermont (in the cases above referred to) had reached diametrical opposite conclusions. The Connecticut court determined to follow the ruling of the-Vermont court. The report of the Connecticut case indicates that the defendant owned land across which flowed a creek that drained into a reservoir, the latter of which was used as a part of the city of Bridgeport’s water supply, being furnished through a utility. A statute prohibited anyone from bathing in a stream tributary to a reservoir from which a city obtained its water supply. The defendant was charged with violating the statute. He contended that as an owner of land abutting the stream he was unconstitutionally deprived of his property through the operation of the statute. The court sustained the constitutionality of the statute. In part it was said (pp. 494, 496) :
“It is unquestioned that the defendant as riparian owner had a right which included ordinary and reasonable bathing [19]*19privileges in this brook by himself, his family, and inmates and guests of his household. . . . [the statute] can only be sustained as an exercise of the state’s police power. Furthermore, it is not disputed that the object of the statute in question is to protect the health of citizens using water distributed through these reservoirs, and that thus its purpose affords a proper basis for the exercise of the police power inherent in the legislature. . . .
“ ‘, . . [the police power] may regulate any business or the use of any property in the interest of the public health, safety, or welfare, provided this be done reasonably. To that extent the public interest is supreme and the private interest must yield. Eminent domain takes property because it is useful to the public. The police power regulates the use of property or impairs the rights in property, because the free exercise of these rights is detrimental to public interest.’ ”
In the case at bar the city acts in a proprietary capacity in withdrawing water from the lake and in supplying its inhabitants with the water. In Eau Claire Dells Imp. Co. v. Eau Claire (1920), 172 Wis. 240, 179 N. W. 2, the court held that in operating a waterworks system a city acts in a proprietary capacity and not in a governmental capacity, and that in such operation the city is governed by the same laws which apply to private corporations.
It cannot be held that the original grantor did not reserve its riparian rights with reference to the water in the lake. In the grant there is no specification that the city is entitled to withdraw water from the lake that has not been used in the ordinary exercise of riparian owners’ rights including bathing, boating, and swimming.
We share the view indicated by the Michigan court in People v. Hulbert, supra, that had the .city desired to prevent the ordinary privileges compatible with riparian rights, including bathing, boating, and swimming, it ought to have contracted for the acquisition of the same or should have acquired by eminent domain the property to which the rights attached.
[20]*20The situation in the present case is controlled by the principle laid down in Allen v. Detroit (1911), 167 Mich. 464, 133 N. W. 317. There, the city of Detroit purchased a lot in a subdivision restricted to residences, and undertook to build a fire-engine house thereon. The court held that the city could not erect a building which would be in violation of the restriction, without release from the other lot owners or condemnation of their interests.’ The court said (pp. 473, 474) :
“Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; the validity of such restriction not being affected by the character of the parties in interest. . . .
“The contention that the city under its general police power, may ignore this building restriction, and erect its fire-engine house within the restricted district because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power, and becomes an act of eminent domain governed by the appropriate condemnation laws. Police power is regulative and restrictive only, limiting and dictating the owner’s use of property for public safety, but never extends to depriving him of it for public benefit.”
Similar rulings obtained in Story v. New York Elevated R. R. Co. (1882), 90 N. Y. 122, and Ladd v. Boston (1890), 151 Mass. 585, 24 N. E. 858. We perceive of no material distinction between building restrictions created by contract and the rights of a riparian owner reserved to him by the terms of an agreement. Both are substantial property rights and invasion thereof cannot be classified as slight. In Allen v. Detroit, supra, the court also stated that the validity of building restrictions is not affected by the character of the [21]*21parties in interest, — that municipalities are not immune from the rules of law which apply to private parties touching building restrictions. In our opinion the same must be said, with respect to the validity of the reservation in the grantor as recognized by the city of Hurley in the grant.
It does not appear from the record that the lake is the only place from which the city can obtain its water supply. There is nothing to suggest that the city would not be able to find a supply of water by digging or drilling wells as is done in most municipalities of this state. It is practically conceded that the water drawn from the lake could be made safe for public consumption and other use, were it adequately treated. The saving of expense in engaging the services of a full-time chemist does not justify the taking of a property right from the riparian owner. While the lake may not be very inviting for swimming and bathing, nevertheless, it does not appear that such activities could not with safety be engaged in by the riparian owner or owners, their families, and guests. The court’s findings indicate that it is not likely that a permit for a public beach would ever be issued by the authorities.
Depriving a riparian owner on a lake in the use of the water for swimming, bathing, and boating does not result in but incidental damage to his property which need not be compensated for by a municipality adopting an ordinance prohibiting such an activity in the interest of public health and welfare. Such riparian right is a substantial and valuable one for which compensation must be given if the owner is to be deprived of it.
Should the city be desirous of acquiring the right to take from the lake water not used in the exercise of ordinary riparian rights, it may invoke its power of eminent domain and acquire the property of the riparian owners for just compensation, or it may contract to obtain such rights.
We are constrained to hold .that the ordinance in question is not within the limits of proper regulation, but is actually [22]*22the taking of property of the appellants without due process and without compensation. It violates the Fourteenth amendment of the federal constitution and the provisions of sec. 13, art. I, Wisconsin constitution.
In view of this conclusion we deem it unnecessary to determine other questions presented.
By the Court.- — -Judgment reversed, and cause remanded with directions to declare the ordinance unconstitutional as to provisions relating to the prohibition of bathing, boating, and swimming in the lake by riparian owners.