The following opinion was filed December 13, 1881:
Lyon, J.
The controlling question in this case is, Has the defendant The Kaukauna Water-Power Company the right to cut the embankment on lots 5 and 6, on the south side of the river, and draw water from the pond made by the Kaukauna dam, for the purpose of propelling machinery located on its canal below the dam? The solution of this [650]*650question requires the determination of several other questions which will be stated and considered in their order.
1. The claim of the plaintiff corporation to all the surplus water-power created by the dam is based upon the proposition that sec. 16 of the act of the legislature, approved August 8, 1848, appropriates all such water-power to the state. This proposition is disputed on behalf of the defendants. Their counsel maintain that sec. 16 only gives the state such surplus water-power created by the improvement as may exist upon lands owned by the state, and that inasmuch as the state was not the owner of the lands upon which the Kaukauna dam was erected, the section does not apply to the surplus water-power thereby created. Their argument is, in substance, that, inasmuch as the first clause of the section only reserves to the state such land, waters, or materials appropriated by the board for the use of such improvements as belonged to the state, the last clause, which provides that water-power created by the improvement shall belong to the state must be held to apply only to such water-power as is made by dams erected on state lands. In other words, they seek to apply to this section the maxim nosoitur a sociis. We cannot adopt this construction. The statute absolutely reserves to the state the property belonging to it mentioned in the first clause, and at the same time confers upon the state the waterpower therein mentioned; that is to say, such water-power as should thereafter be created “by reason of any dam erected or other improvements made on any of said rivers ” (including the Fox river), which otherwise did not belong to the state. This was necessary in order to give the state the absolute control of the improvement, and such is the plain reading of the statute. Sec. 16 will be found copied in the foregoing statement of the case.
It requires no argument to demonstrate that the water-powers reserved to the state by sec. 16'of the act of 1848 [651]*651■were granted to the Eox & "Wisconsin Improvement Company, by ch. 98, Laws of 1853; that the same passed to the plaintiff 'by the purchase on the foreclosure of the trust deed and mortgage, and the conveyance thereof to it by the trustees and mortgagee therein; and that, in its conveyance to the United States, the plaintiff reserved to itself all of the surplus water-power created by the improvement.
We conclude, therefore, that whatever rights the state took to the Kaukauna water-power by the act of 1848 (which is the absolute ownership of the whole thereof, if that is a valid act), is vested in the plaintiff.
2. It is further maintained on behalf of the defendants that, conceding the Kaukauna water-power is within the provision of sec. 16 of the act of 1848, such act is invalid as to the surplus of the water-power over and above that required for the navigation of the river, for the reason that it is taking private property for private use, which is beyond the power of the legislature. Here, also, we are compelled to differ with the learned counsel for the defendants. It was necessary to erect the Kaukauna dam for the purpose of making the river at that point available for navigation. Without it slack-water navigation would have been impossible. It was of vital interest, therefore, to the state that it, or tho corporation to which it entrusted the preservation and maintenance of the improvement, should have the entire and absolute control of the dam, embankments, canal, and all appliances necessary for the purposes of navigation, as well as of the waters in the pond created by the dam. It would be a serious detriment to the public interests were each riparian owner entitled to cut the dam, or the embankment which is a part thereof, and draw water from the pond. The exercise of such a right might, and probably would, seriously interfere with the proper management of the improvement, greatly to the detriment of the free and unrestricted navigation of the river. It was impossible to [652]*652make the improvement in a proper manner, and to meet the requirements of navigation, without creating some surplus water-power. But for the reasons above suggested such surplus was merely incidental to the improvement.
In Attorney General v. Eau Claire, 37 Wis. 400, and again in State v. Eau Claire, 40 Wis. 533, it was held that a statute which authorized the city of Eau Claire to erect a dam and raise the waters of the Chippewa river for the purpose of creating public water-works in said city, and which granted to the city the right to lease the surplus water-power created by such improvement, faas a valid law. In the opinion of the court, prepared by Ryan, C. J., in each case, speaking of the power granted to the city to construct water-works, it is said: “That is so essentially a public and municipal purpose, that it is obvious that the city can take any legitimate power in aid of it. For that purpose the legislature could unquestionably grant, and the city take, power to construct and maintain a dam not obstructing the navigation of a public river or violating other right, public or private. And the dam so authorized might well produce an excess of power. Superfina non nocent. In such a case, as was frankly admitted on the argument, the surplus water need not run to waste. The legislature might well grant, and the city take, power to lease it. The power to construct and maintain the dam would still rest on the public, municipal use; not on the disposition of the accidental excess. Spaulding v. Lowell, 23 Pick. 71.” Manifestly, the principle of that case is applicable here.
3. It is further claimed on behalf of the defendants that, by locating the south end of the dam upon lot 5, building an embankment thereon and on lots 6 and 7, and appropriating the whole water-power created by the dam, the state took the property of the owners of those lots, and that the laws of the state made no adequate provision for compensating them therefor. A riparian ownei upon a navigable [653]*653stream has no right, without legislative consent, to build a dam across such stream for any purpose. Wis. R. Imp. Co. v. Lyons, 30 Wis. 61. He has the right, however, to pass from his land to the river, and from the river to his land, and to utilize the waters of the river upon his land for any purpose not interfering with the navigation of the stream or the rights of other riparian owners. That the construction of the Kaukauna clam and improvement by the state, and its appropriation of the water-power thereby created, take the property of the owner of lot 5, and deprive him of his riparian rights just mentioned (which, are also property), does not seem to admit of doubt or controversy. Such owner has never been compensated for his property so taken; neither has he released his right thereto.
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The following opinion was filed December 13, 1881:
Lyon, J.
The controlling question in this case is, Has the defendant The Kaukauna Water-Power Company the right to cut the embankment on lots 5 and 6, on the south side of the river, and draw water from the pond made by the Kaukauna dam, for the purpose of propelling machinery located on its canal below the dam? The solution of this [650]*650question requires the determination of several other questions which will be stated and considered in their order.
1. The claim of the plaintiff corporation to all the surplus water-power created by the dam is based upon the proposition that sec. 16 of the act of the legislature, approved August 8, 1848, appropriates all such water-power to the state. This proposition is disputed on behalf of the defendants. Their counsel maintain that sec. 16 only gives the state such surplus water-power created by the improvement as may exist upon lands owned by the state, and that inasmuch as the state was not the owner of the lands upon which the Kaukauna dam was erected, the section does not apply to the surplus water-power thereby created. Their argument is, in substance, that, inasmuch as the first clause of the section only reserves to the state such land, waters, or materials appropriated by the board for the use of such improvements as belonged to the state, the last clause, which provides that water-power created by the improvement shall belong to the state must be held to apply only to such water-power as is made by dams erected on state lands. In other words, they seek to apply to this section the maxim nosoitur a sociis. We cannot adopt this construction. The statute absolutely reserves to the state the property belonging to it mentioned in the first clause, and at the same time confers upon the state the waterpower therein mentioned; that is to say, such water-power as should thereafter be created “by reason of any dam erected or other improvements made on any of said rivers ” (including the Fox river), which otherwise did not belong to the state. This was necessary in order to give the state the absolute control of the improvement, and such is the plain reading of the statute. Sec. 16 will be found copied in the foregoing statement of the case.
It requires no argument to demonstrate that the water-powers reserved to the state by sec. 16'of the act of 1848 [651]*651■were granted to the Eox & "Wisconsin Improvement Company, by ch. 98, Laws of 1853; that the same passed to the plaintiff 'by the purchase on the foreclosure of the trust deed and mortgage, and the conveyance thereof to it by the trustees and mortgagee therein; and that, in its conveyance to the United States, the plaintiff reserved to itself all of the surplus water-power created by the improvement.
We conclude, therefore, that whatever rights the state took to the Kaukauna water-power by the act of 1848 (which is the absolute ownership of the whole thereof, if that is a valid act), is vested in the plaintiff.
2. It is further maintained on behalf of the defendants that, conceding the Kaukauna water-power is within the provision of sec. 16 of the act of 1848, such act is invalid as to the surplus of the water-power over and above that required for the navigation of the river, for the reason that it is taking private property for private use, which is beyond the power of the legislature. Here, also, we are compelled to differ with the learned counsel for the defendants. It was necessary to erect the Kaukauna dam for the purpose of making the river at that point available for navigation. Without it slack-water navigation would have been impossible. It was of vital interest, therefore, to the state that it, or tho corporation to which it entrusted the preservation and maintenance of the improvement, should have the entire and absolute control of the dam, embankments, canal, and all appliances necessary for the purposes of navigation, as well as of the waters in the pond created by the dam. It would be a serious detriment to the public interests were each riparian owner entitled to cut the dam, or the embankment which is a part thereof, and draw water from the pond. The exercise of such a right might, and probably would, seriously interfere with the proper management of the improvement, greatly to the detriment of the free and unrestricted navigation of the river. It was impossible to [652]*652make the improvement in a proper manner, and to meet the requirements of navigation, without creating some surplus water-power. But for the reasons above suggested such surplus was merely incidental to the improvement.
In Attorney General v. Eau Claire, 37 Wis. 400, and again in State v. Eau Claire, 40 Wis. 533, it was held that a statute which authorized the city of Eau Claire to erect a dam and raise the waters of the Chippewa river for the purpose of creating public water-works in said city, and which granted to the city the right to lease the surplus water-power created by such improvement, faas a valid law. In the opinion of the court, prepared by Ryan, C. J., in each case, speaking of the power granted to the city to construct water-works, it is said: “That is so essentially a public and municipal purpose, that it is obvious that the city can take any legitimate power in aid of it. For that purpose the legislature could unquestionably grant, and the city take, power to construct and maintain a dam not obstructing the navigation of a public river or violating other right, public or private. And the dam so authorized might well produce an excess of power. Superfina non nocent. In such a case, as was frankly admitted on the argument, the surplus water need not run to waste. The legislature might well grant, and the city take, power to lease it. The power to construct and maintain the dam would still rest on the public, municipal use; not on the disposition of the accidental excess. Spaulding v. Lowell, 23 Pick. 71.” Manifestly, the principle of that case is applicable here.
3. It is further claimed on behalf of the defendants that, by locating the south end of the dam upon lot 5, building an embankment thereon and on lots 6 and 7, and appropriating the whole water-power created by the dam, the state took the property of the owners of those lots, and that the laws of the state made no adequate provision for compensating them therefor. A riparian ownei upon a navigable [653]*653stream has no right, without legislative consent, to build a dam across such stream for any purpose. Wis. R. Imp. Co. v. Lyons, 30 Wis. 61. He has the right, however, to pass from his land to the river, and from the river to his land, and to utilize the waters of the river upon his land for any purpose not interfering with the navigation of the stream or the rights of other riparian owners. That the construction of the Kaukauna clam and improvement by the state, and its appropriation of the water-power thereby created, take the property of the owner of lot 5, and deprive him of his riparian rights just mentioned (which, are also property), does not seem to admit of doubt or controversy. Such owner has never been compensated for his property so taken; neither has he released his right thereto.
As to lots 6 and 7 we incline to the opinion that the instrument denominated a release, executed by Hunt to the Fox & Wisconsin Improvement Company in 1854 (Hunt being then the owner of those lots), in and by which he granted to that company and to its legal representatives “ the right to erect and forever maintain an embankment of the dimensions as surveyed by the engineer of said company,” operates as a surrender of all riparian rights appurtenant to such lots, not reserved in the instrument. The instrument recites a consideration of $100, and Hunt reserved therein “ the right to use said embankment, when completed, but not so that the same shall be injured.” He also reserved the right to excavate a ditch of certain dimensions on the land on the south side of the embankment. The embankment was surveyed and located along the margin of the river, and was so granted and erected for the purpose of confining the waters of the river within its natural banks, after it should be raised by the erection of the dam.
The act of 1848 is certainly liable to the criticism that it makes no adequate provision for compensating the owners of [654]*654property taken for the improvement. True, it contains provisions in sec. l'T (which section is copied in the statement of the case), and in subsequent sections, for the condemnation of private property to the use of the improvement. Because of these provisions, Dixon, C. J., in delivering the opinion of the court in Arimond v. G. B. & M. Canal Co. (this plaintiff) 31 Wis. 316, controverted a supposed statement of the supreme court of the United States in Pumpelly v. G. B. Co. 13 Wall. 166, to the effect that the laws of this state failed to provide for making such compensation. We all overlooked the fact that the court in that case was determining the sufficiency of certain pleas, and only stated the case made by such pleas. It did not assume to say what were the laws of this state on the subject.
But the act of 1848 failed to give the land-owner the right to institute condemnation proceedings under it to have his compensation determined; and if the state should institute such proceedings, the compensation, when determined, was, by sec. 21 of the act, made payable out of .the fund appropriated to such improvement. By sec. 20 the recording in the office of the register of deeds of a transcript of the award signed by the appraisers and acknowledged or proved as a conveyance of land, operated to vest in the state the fee-simple of the premises condemned to the use of the improvement. This, without requiring the sum so awarded as compensation to be first paid. The history of the improvement during the timé it was in the hands of the board of public works and of the Fox & Wisconsin Improvement Company, shows that the improvement fund was a very uncertain source to rely upon for the payment of a debt charged upon it. No other provision was made in the act of 1848, or in any other act of the legislature, for the condemnation of property to the use of the improvement, or for payment therefor. In view of these serious defects in the law, and especially because the owner of the property [655]*655taken for the purposes of the improvement was powerless to institute proceedings to have the compensation ascertained to which he was entitled, Mr. Justice Orton said in Sweaney v. U. S. 62 Wis. 396, that, until the passage of the act of Congress of 1875, there was no provision of law for the ascertainment and payment of the damages and compensation for the taking of lands by flovvage or otherwise for the use of the improvement. Looking to the practical operation of the statute, the statement thus made is sub-stantialty correct, although, perhaps, inaccurate in theory and form. But whatever defects inhered in the act of 1848, they ceased long since to be of any importance. That act was fully executed, the improvement which it authorized has been made and ever since maintained, and the title thereto, except to the incidental surplus water-power reserved by the plaintiff, has passed to the United States. The failure of the state legislature to provide adequate compensation for private property taken for, or injured by, the improvement, has been supplied by the act of Congress of 1875, in and by which an easy method is provided to ascertain the compensation to which the owner of such property is entitled, and the United States has assumed the payment thereof. Jones v. U. S. 48 Wis. 385, affirmed in 109 U. S. 513; Sweaney v. U. S. 62 Wis. 396.
4. A prescriptive right to maintain the south half of the dam on lot 5, founded upon twenty years’ uninterrupted adverse user, is claimed on behalf of the plaintiff. Inasmuch as we are of the opinion that the United States has the legal right to maintain the dam on lot 5, without regard to any prescription, it is quite immaterial whether such claim is well founded or otherwise. It probably is not well founded as to the additional embankment constructed from the old to the new dam; perhaps not as to the portion of the new dam on lot 5, which includes all of the structure south of the center of the stream. But however the question of prescription should be decided were [656]*656it material, it seems quite clear that no statute of limitations has run against the right of the present owner of lot 5 to recover of the United States compensation for the portion of that lot taken for the improvement, and for the injury to the lot caused thereby. The act of Congress.giving-such compensation was approved March 3,1875, and it provided for the payment of such claims legally owing at that daté. The act, by its terms, provides for cases in which “ compensation is now or shall become legally owing.” Of course, it speaks from the date of its approval. The original Kaukauna dam was not erected on lot 5 until after March 3, 1855. This satisfactorily appears by the testimony of Hon. Morgan L. Martin, who erected the dam. He testified, in substance, that he entered upon the bed of the stream for the construction of the dam after warm weather commenced in the spring of 1855. Of course, in the latitude of Kaukauna, that must have been later than March 3d. We suppose the right to compensation was not cut off until a prescriptive right to maintain the dam had matured by twenty years' adverse user. Hence, when the act of March 3, 1875, was passed, compensation was owing to the owner of lot 5 for the taking of and injury to his property, which is still a valid claim against the United States. And this', we think, includes any deprivation or interruption of any legal riparian right. On this subject, generally, see the cases of Jones v. U. S., and Sweaney v. U. S., above cited.
5. It follows, we think, from the views above expressed that neither of the defendants had any right whatever to draw water from the pond in question, and that the plaintiff is the legal owner óf the water-power created by such dam over and above what is required for navigation. The plaintiff was therefore entitled to an injunction restraining the defendants from drawing the water from the pond for the purposes aforesaid.
6. A mandatory injunction, requiring the water-power [657]*657company to restore the embankment, or at least to allow it to be done, is also prayed. The dam and embankment belong to the United States. The plaintiff has no legal interest therein, no duty in respect to it, and no right to interfere with it unless by permission of the government. It is only interested in the surplus water-power created by the government works, and maintained at such height as the government chooses to maintain it. The government may lower the dam and embankment, or may remove the same and destroy the water-power entirely, and the plaintiff cannot prevent it. The government may also use such appliances as it chooses to keep up a head of water. It may retain the embankment on lots 5, 6, and 7, or use some other means of holding the water, and the plaintiff is in no position to object. Hence it is entirely a question between the United States and The Kaukauna Water-Power Company whether such embankment shall be restored where the company cut through it, or whether the head gates of the canal, which, when closed, stop the water as effectually as did the embankment, shall be allowed to remain in place of the embankment. The plaintiff has no voice in the determination of that question. Hence the prayer for a mandatory injunction compelling the water-power company to restore the embankment, or to allow the plaintiff to do so, must be denied.
We do not here determine the relative rights of the plaintiff and other riparian owners below the dam, in respect to the use of the water which would run over the dam if not taken from the pond into the canal; nor do we consider whether there is any restriction upon the manner or place in which the water shall be returned to the river below the dam. We only hold that the plaintiff owns the surplus water-power created by the dam, and that the defendants have no legal right, without the consent of the [658]*658plaintiff, to draw water from the pond with which to propel machinery.
We have been greatly aided in our investigation of the case by the very able arguments of the respective counsel, which furnish evidence of great learning and research. The caséis a very important one, and any judgment finally entered in it may, probably will, be fai’-reaching in its effect upon water-rights on the Fox river. The writer ventures to express the opinion that there are federal questions involved in it which will support an appeal to the supreme court .of the United States, and the desire that such an appeal may be taken, to the end that the relative rights of the plaintiff and other claimants to water-power created by the improvement of the Fox river, now owned by the United States, may be finally determined by that tribunal.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to give judgment for the plaintiff as indicated in this opinion.