Maesiiall, I.
There are no questions of law to be considered on this appeal. When the case was here before on an appeal involving the sufficiency of the complaint (93 Wis. 534), it was decided: first, that on the facts alleged the operations under the act of 1887 did not affect plaintiff’s riparian rights, as they left him with the privilege of passing over the uncovered lands between the original and new shore lines to the navigable waters of the lake; second, that the act of 1891 was intended solely to convert the bed of ■the lake from public to private ownership in the guise of a pretended public purpose, that of promoting the public health; third, that whether the ostensible public purpose of the act was the actual purpose is not concluded by its recitals, but may be inquired into and determined by the court as a question of fact, and the act sustained or condemned according to the finding; and fourth, that the state is powerless to divest itself of its trusteeship as. to the submerged lands under navigable waters in this state under the guise
of promoting the public health. That decision is binding for the purpose of this appeal on all questions covered by it. It stands as the infallible truth, leaving nothing which can now be questioned, except whether the facts which were then said to constitute a sufficient cause for equitable relief have been found to exist by the trial court, and whether anjr material part of such findings is against the clear preponderance of the evidence.
Lathrop v. Knapp,
21 Wis. 214, 37 Wis. 307;
Case v. Hoffman,
100 Wis. 314.
Appellant’s counsel has furnished us with the result of much research as regards the scope of the police power of the state and the supreme authority of the legislature to exercise such power, all of which is interesting but not material, because the subject is not before us. That the legislature has a broad discretion in the exercise of police powers cannot be questioned. Within that discretion its dominion is supreme; but whether a legislative enactment was designed to further some governmental function, or to further private gain, as said in the former opinion, is a judicial question and counsel have failed to produce any authority to the contrary; and even if such authority were produced it could not change the rule for the purposes of this case. .Hot only, as indicated, is it a judicial question of fact which is presented by the controversy as to the purpose of the act of 1891, but the court is not concluded by the wording of the act as to where the truth lies. Otherwise private property rights could easily be taken away from one, and with or without consideration vested in another, under the guise of the promotion of some public purpose falsely recited in a legislative enactment.
Leaving out of view the pretense that the draining of the-lake was for the purpose of promoting the public health, not a shadow of legal authority exists to justify the acts complained of. The legislature has no more authority to emancipate itself from the obligation resting upon it which was
assumed at the commencement of its statehood, to preserve for the benefit of all the people forever the enjoyment of the navigable waters within its boundaries, than it hq,s to donate the school fund or the state capitol to a private purpose. It is supposed that this doctrine has been so firmly rooted in our jurisprudence as to be safe from any assault that can be made upon it. The navigable waters of the state belong to the state, and the lands under them, in all situations, so far as are necessary to preserve inviolate the common right to enjoy those incidents which were not the subject of private ownership in navigable waters at common law; and any attempt by any person or corporation to violate such public rights to the special injury of a particular person, as when an attempt is made to take from such person some incident of his title to the shore of navigable waters, may be restrained by a private action. The general character of the state’s title to submerged lands under navigable waters has been treated so fully several times within the past few years that there is nothing more that can be .profitably said, even if the subject were open to discussion and decision in this case. Therefore we leave it by referring to such prior decisions.
Priewe v. Wis. St. L. & I. Co.
93 Wis. 534;
Willow River Club v. Wade,
100 Wis. 86;
Mendota Club v.
Anderson, 102 Wis. 479;
Pewaukee v. Savoy, ante,
p. 271.
The only real controversy open for our consideration is,Are the findings of fact made by the trial court supported by the evidence ? That must be answered in the aifirmative, and without the answer being accompanied by any extended discussion of the evidence. The record is very long, covering some 355 pages, all of which has been examined with that care necessary to a careful judicial determination of the question. The evidence is conflicting upon many of the material facts, but there is abundance of evidence in the record to the effect that the lake was a navigable body of water
after the first drainage, in places, up to within fifty feet of the original shore line of plaintiff’s property; that none of the lake bed was uncovered except a strip averaging about 100 feet wide inside the shore line; that aside from that the entire lake bed was covered with water, and during most of the open season of the year it could be traversed by boats for the purposes of fishing and hunting; that such condition was destroyed by the second drainage to the damage of plaintiff; that a restoration of the lake to the condition it was in prior to such second drainage will promote the public health, and that the primary purpose of the act of 1891, under the authority of which such second drainage was made and defendant claims title to the lake bed, was to convert that which was public and held by the state without power of alienation into that which was private,— a manifest excess of constitutional legislative authority.
A contention is made that plaintiff’s omission to commence his action till a large amount of money had been expended by defendant under the act of 1891 should be held to preclude him from obtaining equitable relief; that by his silence defendant was permitted to go on and incur expense ■on the faith of its legislative authority .and the acquiescence of plaintiff, and that he should not now be allowed to change his position to the prejudice of the defendant. Ve are unable to see wherein the attitude of plaintiff misled the defendant in the slightest degree. Its reliance was wholly on the legislative enactment of 1891. There was no benefit which accrued to plaintiff by the second drainage of the lake, but on the contrary it was a serious damage to his property. Seasonably after actual damage to such property commenced, this action was instituted. The court found as a fact that the purpose of defendant’s operations was solely to acquire the title to the lake bed, and that its grantor procured the passing of the law of 1891 for that purpose; and it further appears that before it incurred any considerable ex-
psn.se there was a decision by this court to the effect that submerged land of navigable lakes cannot, by legislative enactment, in the furtherance of private interests, be made-the subject of private ownership.
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Maesiiall, I.
There are no questions of law to be considered on this appeal. When the case was here before on an appeal involving the sufficiency of the complaint (93 Wis. 534), it was decided: first, that on the facts alleged the operations under the act of 1887 did not affect plaintiff’s riparian rights, as they left him with the privilege of passing over the uncovered lands between the original and new shore lines to the navigable waters of the lake; second, that the act of 1891 was intended solely to convert the bed of ■the lake from public to private ownership in the guise of a pretended public purpose, that of promoting the public health; third, that whether the ostensible public purpose of the act was the actual purpose is not concluded by its recitals, but may be inquired into and determined by the court as a question of fact, and the act sustained or condemned according to the finding; and fourth, that the state is powerless to divest itself of its trusteeship as. to the submerged lands under navigable waters in this state under the guise
of promoting the public health. That decision is binding for the purpose of this appeal on all questions covered by it. It stands as the infallible truth, leaving nothing which can now be questioned, except whether the facts which were then said to constitute a sufficient cause for equitable relief have been found to exist by the trial court, and whether anjr material part of such findings is against the clear preponderance of the evidence.
Lathrop v. Knapp,
21 Wis. 214, 37 Wis. 307;
Case v. Hoffman,
100 Wis. 314.
Appellant’s counsel has furnished us with the result of much research as regards the scope of the police power of the state and the supreme authority of the legislature to exercise such power, all of which is interesting but not material, because the subject is not before us. That the legislature has a broad discretion in the exercise of police powers cannot be questioned. Within that discretion its dominion is supreme; but whether a legislative enactment was designed to further some governmental function, or to further private gain, as said in the former opinion, is a judicial question and counsel have failed to produce any authority to the contrary; and even if such authority were produced it could not change the rule for the purposes of this case. .Hot only, as indicated, is it a judicial question of fact which is presented by the controversy as to the purpose of the act of 1891, but the court is not concluded by the wording of the act as to where the truth lies. Otherwise private property rights could easily be taken away from one, and with or without consideration vested in another, under the guise of the promotion of some public purpose falsely recited in a legislative enactment.
Leaving out of view the pretense that the draining of the-lake was for the purpose of promoting the public health, not a shadow of legal authority exists to justify the acts complained of. The legislature has no more authority to emancipate itself from the obligation resting upon it which was
assumed at the commencement of its statehood, to preserve for the benefit of all the people forever the enjoyment of the navigable waters within its boundaries, than it hq,s to donate the school fund or the state capitol to a private purpose. It is supposed that this doctrine has been so firmly rooted in our jurisprudence as to be safe from any assault that can be made upon it. The navigable waters of the state belong to the state, and the lands under them, in all situations, so far as are necessary to preserve inviolate the common right to enjoy those incidents which were not the subject of private ownership in navigable waters at common law; and any attempt by any person or corporation to violate such public rights to the special injury of a particular person, as when an attempt is made to take from such person some incident of his title to the shore of navigable waters, may be restrained by a private action. The general character of the state’s title to submerged lands under navigable waters has been treated so fully several times within the past few years that there is nothing more that can be .profitably said, even if the subject were open to discussion and decision in this case. Therefore we leave it by referring to such prior decisions.
Priewe v. Wis. St. L. & I. Co.
93 Wis. 534;
Willow River Club v. Wade,
100 Wis. 86;
Mendota Club v.
Anderson, 102 Wis. 479;
Pewaukee v. Savoy, ante,
p. 271.
The only real controversy open for our consideration is,Are the findings of fact made by the trial court supported by the evidence ? That must be answered in the aifirmative, and without the answer being accompanied by any extended discussion of the evidence. The record is very long, covering some 355 pages, all of which has been examined with that care necessary to a careful judicial determination of the question. The evidence is conflicting upon many of the material facts, but there is abundance of evidence in the record to the effect that the lake was a navigable body of water
after the first drainage, in places, up to within fifty feet of the original shore line of plaintiff’s property; that none of the lake bed was uncovered except a strip averaging about 100 feet wide inside the shore line; that aside from that the entire lake bed was covered with water, and during most of the open season of the year it could be traversed by boats for the purposes of fishing and hunting; that such condition was destroyed by the second drainage to the damage of plaintiff; that a restoration of the lake to the condition it was in prior to such second drainage will promote the public health, and that the primary purpose of the act of 1891, under the authority of which such second drainage was made and defendant claims title to the lake bed, was to convert that which was public and held by the state without power of alienation into that which was private,— a manifest excess of constitutional legislative authority.
A contention is made that plaintiff’s omission to commence his action till a large amount of money had been expended by defendant under the act of 1891 should be held to preclude him from obtaining equitable relief; that by his silence defendant was permitted to go on and incur expense ■on the faith of its legislative authority .and the acquiescence of plaintiff, and that he should not now be allowed to change his position to the prejudice of the defendant. Ve are unable to see wherein the attitude of plaintiff misled the defendant in the slightest degree. Its reliance was wholly on the legislative enactment of 1891. There was no benefit which accrued to plaintiff by the second drainage of the lake, but on the contrary it was a serious damage to his property. Seasonably after actual damage to such property commenced, this action was instituted. The court found as a fact that the purpose of defendant’s operations was solely to acquire the title to the lake bed, and that its grantor procured the passing of the law of 1891 for that purpose; and it further appears that before it incurred any considerable ex-
psn.se there was a decision by this court to the effect that submerged land of navigable lakes cannot, by legislative enactment, in the furtherance of private interests, be made-the subject of private ownership.
McLennon v. Prentice,
85 Wis. 127. So we have a case where defendant, in furtherance of a scheme which its officers and agents knew, or ought to have known, had been in principle condemned by this court, proceeded to a point in its operations where actual special damage accrued to the plaintiff, whereupon he, with reasonable diligence, commenced an action to restrain the further prosecution of the work. If there is any element of equitable estoppel in that situation we are unable to discover it. One of the first essentials to an equitable estoppel is that the party claiming the benefit of it must proceed in good faith. Here defendant purposed to obtain title to the lands from the state, which it knew, or if it did not know was negligent in not knowing, the state was powerless to subject to private- ownership. Another essential of equitable estoppel is that the attitude of the person against whom it is claimed must have materially influenced the conduct of his adversary, or such person must be so circumstanced as to reap some benefit from such conduct. Here, as indicated, neither of these elements exists. There was no blowing hot and blowing cold alternately, no proceeding in good faith relying upon acquiescence because of the silence of plaintiff, with the circumstance of gain to plaintiff as an explanation of such silence. An equitable estoppel
in pais
requires, as to the person against whom the estoppel is claimed, opportunity to speak, duty to speak, failure to speak, and reliance in good faith upon such failure. Here, at best, none of such elements existed except opportunity to speak.
A literal interpretation of the judgment would render it unnecessarily harsh. It would require a large expenditure of money without any resulting benefit to plaintiff. It may easily be read to require defendant to fill up all the excava
tions made in the course of its operations under the act of 1891 between Wind lake and Muskego lake, and in the bed of the latter lake. We assume that it was only intended by the judgment to require such filling up of excavations as will restore the natural condition of the water in Muskego-lake, as it would exist had there been no attempt to drain the -lake under the act of 1891; that so much of the canal between Wind lake and Muskego lake and the canal in Muskego lake must be filled up as will accomplish that result. Such is probably what was in the judicial mind and the judgment may reasonably be read that way. As so-understood it needs no modification.
By the
Oouri.— The judgment of the circuit court is affirmed.
Dodge, J., took no part.